On Fri, May 14, 2004 at 12:43:12PM +0100, kevin lyda wrote:
> On Fri, May 14, 2004 at 10:36:30AM +0100, Colm MacCarthaigh wrote:
> > Ireland's case-law practises exclude the majority of courts in the US.
> > (some courts, particularly in commonwealth states are referenceable
> > though, some other courts judgement are citable in certain limited
> > circumstances and others such as courts in louisiana are almost entire
> > uncitable).
>> with the exception of louisiana, i think all states in america use some
> form of common law.
It's more complex than that, as in most of the US the judiciary are not
bound by case-law as they are here (or at least are bound by the ratio
decenti of a case law), so frequently it can not be considered. Or at
least that's how it was explained to me.
> > For one last try; The cases in the US that you are referencing are
> > constitutional in nature and based on the 1st amendment to the US
> > constitution. We do not share that constitution, and the 1st amendment
> > to ours is concerning emergency state powers. Those cases will never,
>> now that's just silly. no one expects the headings of various
> constitutions to match up. the first ammendment in the us constitution is
> not as clear as some people make it and it's interpretation has changed
> over the years. it also doesn't just deal with freedom of speech.
>> the irish constitution apparently covers various bits of freedom of
> expression in several places, and there are similar debates about how
> far that right can be fleshed out. a quick google search finds:
>>http://www.iccl.ie/constitution/fos/98_censor11.htm>> there is an explicit right protecting you against defamation in the
> irish constitution, but not in the us constitution. nonetheless you can
> sue for defamation in the states.
Yes, but my point is that arguments surrounding constitutionality in the
US will have no bearing on legality in Europe.
> > I agree that that could continue to be a good thing for the European
> > software industry, yes. But I don't agree that that's based on any
> > fundamental rights of software developers, or that it is in any way a
> > civil liberties issue.
>> software is being used in many fields that directly relate to civil
> liberties: voting, personal communications, political campaigns,
> health records, policing, etc. people working for human rights in
> various countries are using things like gpg to communicate with others.
> and recently the software encoding and transmitting digital pictures
> and video made some impact on human rights.
Sure; but so are cameras, and in fact you can't even use software
without electronics. Is the patentability of electronics now a civil
liberties issue? Does the fact that I can't go and build a digital
camera from scratch impede my rights to document and publish photos
from a protest march? Of course not.
> > I'm a programmer, and I've written a lot of code, a lot of which is in
> > major open-source projects, some of which is no doubt covered by patents
> > somewhere. But I don't regard any of that code as speech that should
> > have a constitutional or legal protection. It's just code, and it's a
> > whole lot more similar to a watch than it is a political doctrine.
>> i don't think you're considering the larger picture.
I think I am :)
> > Nope, watchmakers have been happy to accept patents and have never even
> > tried such an absurd argument. And to be clear; it's that it is
> > expression, not speech and it is expression for which we have limited
> > protection.
>> machine code is not speech. but we (programmers) don't normally write
> straight machine code. we write in higher level languages in order to
> generate machine code from those ideas AND to communicate those ideas
> with other programmers.
Totally true, but I think the distinction between this and the same
process in other industries is rather dubious :)
> > O.k. this is obviously going to take baby steps. Firstly; I have read
> > it, it even includes examples of American courts finding software not to
> > be Free Speech under the 1st amendment. Now, next step; We do not have
> > constitutionally protected speech, nor do we live under the American
> > constitution. In what way would precedent in a US court, relevant to
> > their constitution ever become relevant to us? You clearly don't
> > understand how case-law operates.
>> i don't understand how it works exactly either, but i would guess that a
> lawyer here would look through those cases and see which ones fit with
> the rights given by the irish constitution.
>> in addition, the irish constitution has personal and political rights.
> in addition it has a right to organise - and one can argue that code is
> used to organise programmers.
>> > I'm not argueing that at all. I'm saying that a) We do not have a right
> > to unimpeded free speech, it does not exist. b) one of allowable
> > limitations on our limited right to free expression is that it may be
> > limited for the reasons of commercial protection, this is well
> > established in law.
>> again i think you'll discover that (a) and (b) apply to the first
> ammendment to the us constitution. the question is how do you balance
> competing rights?
That's exactly it, and in Europe we ha ve a body of well-established law
saying that commercial protectionism is o.k. :)
Colm MacCárthaigh Public Key: colm+pgp at stdlib.net
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