Recently I sent a note to Politech with my description of the oral arguments before the appeals court: http://www.politechbot.com/p-01986.html Attached below is a reply from Chuck Sims of Proskauer Rose, the lead attorney representing the Motion Picture Assocation of America in this litigation. Chuck didn't want his email address included, and I've agreed to remove it. More on Proskauer Rose's filing yesterday, 2600's filing, and photographs: http://www.politechbot.com/p-02083.html -Declan --- Date: Thu, 03 May 2001 19:08:39 -0400 From: "Charles Sims" To: declanat_private Subject: Re: FC: U.S. government says DeCSS is terrorware MIME-Version: 1.0 Declan: Your comments on the arguments made by AUSA Dan Alter are unaccountably snide and inaccurate. Alter's point, which is entirely correct, is that the arguments lodged by Corley's attorneys in this matter are so preposterously overbroad that they would require the invalidation of not only the DMCA but also any federal statutes barring the public distribution of harmful or unlawful devices or technologies via the Internet - whether circumvention devices or gambling paraphernalia or software to steal cable or satellite transmissions or computer viruses or "terrorware that could crash airplanes, disrupt hospital equipment and imperil human lives." Before he decamped to represent the Mitchell estate in its fight against a first amendment/fair use claim, Martin Garbus argued - and so has his successor and the various amici supporting Corley - that every piece of software is speech protected by the most demanding first amendment tests known to the law, no matter the purpose of the regulation or its character, and therefore effectively immune from governmental regulation. Corley's argument has been, if it's code, it's fully protected, and the fact that the code may also be functional is irrelevant, That's the argument to which Alter was reponding. As the Court noted, the argument is inaccurate and absurd, and contradicted by a wide range of caselaw. To tell your readers that Alter said that DeCSS was as dangerous as "terrorware that could crash airplanes, disrupt hospital equipment and imperil human lives" is just bad reporting. He didn't say it was the same as terrorware; he said that Corley's argumment makes it legally the same, and would prevent Congress from barring terrorware or any other unlawful conduct or device so long as it was configured as software, and so the Court should reject that argument. Mischaracterizing the very strong arguments against Corley and shielding your readers from the weakness of the arguments made in his defense doesn't advance the debate; doesn't inform your readers of what's at stake; deprives them of a point of view and analysis that might actually change some minds, or provoke some thought; and misportrays the strength of the position taken by creators and the creative community in the DVD litigation. What is gained by failing to convey the weakness of the arguments made by the DMCA's opponents? ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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