[ EEPI-Discuss ] Re: More on Intel and DRM (DRM vs. Open Source)

[Dan Krimm <djkrimbo@earthlink.net>]

>Date: Tue, 31 May 2005 20:59:56 -0700
>From: "Matt Burrows" <mburrows2@earthlink.net>
>Subject: [ EEPI-Discuss ] Re: More on Intel and DRM (DRM vs. Open
>	Source)
>To: <eepi-discuss@eepi.org>
>Message-ID: <011901c5665e$60557760$0400a8c0@Burrows>
>Content-Type: text/plain;	charset="iso-8859-1"
>
>As a matter of clarification, the First Amendment applies only to state
>(i.e., government) action and not to private parties.  When DRM is used /
>imposed by the state, then the First Am. (i.e., what's left of it) would
>come into play for speech issues.


Certainly, Matt.

However when the FCC is trying to set rules regarding things like a
broadcast flag, the government is getting involved (even if the particular
agency involved may not have jurisdiction in the opinion of the Appeals
court, it doesn't stop Congress from considering that provision in statute
-- RIAA/MPAA may not try to lobby for this provision this time around in
rewriting the Telecom Act, but don't think it hasn't been mentioned
recently as a possible strategy).

When Congress writes anti-circumvention penalties into law in the DMCA,
government is involved in enabling processes that can constrain speech more
than allowed by fair use precedents.

FA is not just about direct effects of government regulation on speech, but
also about indirect effects of such regulation (see: "intermediate
scrutiny").  You are a law professional, so I would expect that you know
this.

When government grants technological control over speech to private
entities that are supposed to operate as a common carrier, for example,
then the government is implicated in empowering the potential suppression
of speech by proxy.

Seems to me DRM *is* still generally a FA issue, if only under intermediate
scrutiny.  However in practical terms, the increasing leverage of the
corporate world over the public sector starts to blur the distinction
between public and private, and in that sense I'm talking about a greater
domain than defined specifically by law.

it's that "insidiousness factor" that I'm, bothered by, even when strictly
speaking the government may not be directly implicated.

The system is the thing.

Dan
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