The one-two punch delivered by two court rulings in a closely followed
DeCSS case failed to knock out
2600 Magazine
and publisher Eric Corley, despite predictions from many observers
that the final round was over. Instead, on January 14, the defendants
rallied and petitioned for a rehearing, with legal support as always
from the Electronic Frontier Foundation. Their petition, superficially
a series of hair-splitting definitions and references to court
rulings, actually contains a powerful argument that may be used to
rule unconstitutional the notorious anti-circumvention clauses of the
Digital Millennium Copyright Act.
The 2600 case was brought by movie studios to prevent the spread of
DeCSS, which would permit unauthorized access to films on DVD. But the
case affects the development of innovative technology, the publication
of programs and computer science information, and the Web’s fluid
nature reflected in the freedom to make links.
In this article, as a non-lawyer interested in the development of new
media, I will try to explain the complex reasoning behind the
Second Circuit Court of Appeal’s
ruling
against 2600 and the defendants’
petition,
officially an “application for rehearing en banc.”
All you really need is heart
The case brought against 2600 was just one of several instances where
speech or information exchange has been constrained by the
“anti-circumvention” clauses of copyright law. The most
extreme case was the arrest of Dmitri Sklyarov, who had come to the
United States from Russia to discuss his research at a computing
conference. He was jailed for several weeks in a case brought against
his company for a product that circumvented access controls on
documents in the Adobe Acrobat eBook Reader format. Another
high-profile case is that of teenager Jon Johansen, indicted in Norway
for whatever role he played in developing or disseminating DeCSS.
Passed by Congress in the DMCA in 1998 and listed in the U.S. Code as
Title 17, section 1201, the anti-circumvention clauses talk of illegal
“devices” and of “access to a work protected under
this title.” The thrust of the law appears irrelevant to issues
of free speech: it seems to address the copyright equivalents of
devices that warn drivers about police radar or the old, illegal
“blue boxes” that permitted people to make free
long-distance phone calls.
Yet Congress was well aware that copyright functions in certain
circumstances as a restraint on speech. The legislators inserted
clauses in the DMCA explicitly claiming that it should not affect free
speech or fair use.
I am about to delve into fussy details of histories of interpretations
of fine points of copyright law. One might be tempted to throw all
these minutiae overboard and judge the issue from a naive or
common-sense standpoint. If you do, you’re in good company. A
leading lawyer’s guide to copyright for lay people, Jessica
Litman’s
Digital Copyright,
suggests bringing copyright law in line with the public’s
common-sense understanding of the proper use of a work. But the issues
in the DeCSS cases are too tangled to yield the truth to that
high-minded approach.
I think it’s pretty clear that DeCSS is the kind of thing
Congress intended to prevent when it passed the DMCA. DeCSS
defendants cases tend to argue that the law has the unintended effects
of suppressing speech, competition, and other things to which the
public has rights. Congress never said it wanted to do these things
(in fact, the law suggests the opposite). However, only one member of
Congress—Representative Rick Boucher, a frequent champion of
open Internet development—has questioned them, either. No one
else has decried the chilling of academic research that Edward Felton
claimed to have suffered, or the bans on Web links, or the arrest of
Sklyarov (which legitimately could have turned into an international
diplomatic incident). Furthermore, this kind of outcome had been
predicted by critics of the law before its passage.
Therefore, despite fig leaves to cover fair use and other rights,
Congress is obviously content with the outcome of the law. So is the
executive branch of government, if one judges from its harsh
prosecution of Sklyarov and from the Copyright Office’s narrow
rulemaking last year on exemptions from the anti-circumvention clause.
Congressional intent does not make something right. Indeed, many
critics are trying to establish that Congress overstepped its
constitutional power by imposing such a broad ban. That is why legal
arguments matter. In particular, the Second Circuit ruling has already
been cited in another case in which the plaintiff seeks to prevent the
distribution of DeCSS code as a violation of trade secrets.
Today is the last day that I’m using words, don’t function anymore
The main barrier the court had to leap in order to rule against 2600
was the argument that computer programs were speech and that their
distribution was therefore protected under the First Amendment. This
doctrine was used in two high-profile cases dealing with a different
kind of program, cryptography. The doctrine was affirmed in reference
to DeCSS code by a November 1 ruling in California (but in a different
case from the 2600 case considered here).
While laying out and affirming the reasoning in these previous cases,
the Second Circuit permitted itself the luxury of overriding free
speech issues through a series of assertions, all of which are based
on previous cases and appear in previous rulings on this case:
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Computer code is not just speech, where it serves an expressive
purpose; it also serves a functional purpose.
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The anti-circumvention clauses ban the functional aspect of DeCSS, not
the expressive part. This makes the ban “content-neutral.”
-
Therefore, the courts have a relatively wide leeway to ban DeCSS. They
need not be as careful to protect the First Amendment as they do when
banning the expressive aspects of speech.
A distinction between the “expressive” and
“functional” aspects of speech winds its way through
numerous court cases, including the ones on cryptography mentioned
earlier. But computer code is not the only kind of speech that is
functional; recipes, directions from an appliance manufacturer, and
many other forms of speech also have functional aspects. Consider
shouting “Jump!” to a person on a window ledge or
“Hang him!” to a mob who has captured a criminal.
Since the “content-neutral” assertion was so critical to
the ruling, it deserves a bit of history and context.
A classic case of a content-neutral restriction on speech is a ban on
the use of megaphones within an urban area. The content of the speech
is irrelevant; the goal is to prevent public nuisances. If the city
allowed the Girl Scouts to use megaphones but prohibited the Nazis
from doing so, the ban would not be content-neutral and would
therefore be unconstitutional.
By this logic, there could not possibly seem to be any argument that a
ban on DeCSS is content-neutral. Downloading and running Internet
Explorer on your computer is legal; downloading and running DeCSS is
illegal. That’s a fundamentally content-based ban.
The judges circumvented this First Amendment issue by saying that they
were banning DeCSS for its functional aspect. They were not banning it
because the code contained obscene words or promoted violence; they
were banning it only because it decodes movies. That made the ban
content-neutral.
Those of us who are not lawyers may feel as if we just passed through
a lesion in the space-time continuum. Code is speech and (according
to some courts) code is functional, but it is exactly the same
code. It is like a box that is longer than it is wide. If the long
(expressive) side does not fit through a doorway, the court is free to
turn the box on its narrow (functional) side to shove it through.
Professor Lawrence Lessig writes, “The test is to discover what
the real purpose of regulation is. If the purpose is to silence
certain ideas, it’s content-based. The anti-circumvention clause
is not meant to silence ideas and therefore is not content-based.
That’s the thrust of the court’s opinion, and it draws
into question the court’s general approach, but perhaps not the
particular application.”
Wielding the functional and content-neutral assertions, the Second
Circuit rooted its argument in the plaintiffs’ camp. The judges
thereby reaped an extra bonus. They still have to deal with First
Amendment issues, because they agree that computer code is expressive
as well as functional. But they don’t have to apply
“strict scrutiny” and find the “least restrictive
means” to achieve their goals, as they do in typical First
Amendment cases involving erotica or other expressive material.
Instead, they merely need to apply “intermediate
scrutiny.” (I am indebted to Professor Peter D. Junger, of
Junger v. Daley fame, for this point.)
That gives the court much more leeway to impose a ban. Enough leeway,
in fact, to permit the meat-cleaver injunction banning Web links to
sites containing the offending code. This part of the 2600 ruling
(which has been in effect for some time, and obviously is not
content-neutral) is the strongest precedent yet in the alarming creep
of legal doctrine toward restricting Web links, or making sites liable
for the material on the sites to which they link. A link is now
“functional,” and therefore subject to more restrictions
than normal speech. (The defendants’ petition points out that the
courts here are going far beyond the DMCA, “which nowhere in its
text or legislative history refers to hyperlinks.”)
Any computer code, unless it consists of an empty pair of braces, is
functional. Therefore, if the Second Circuit’s ruling holds, all
computer programs will permanently be given less protection than other
forms of speech. This almost certainly was not the intent of the
courts that previously declared computer programs a form of speech,
and the Second Circuit did not openly repudiate those rulings.
The defendants’ petition argues that the Second Circuit made the
wrong choice, even if the standard of “intermediate
scrutiny” is accepted, for several reasons:
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First (to attempt an explanation in everyday language), the court has
to figure out what harm it is trying to prevent. But there is no harm;
no one has used DeCSS to illegally copy a DVD. DVDs are easy to copy
in other ways (or least, so claims the unsolicited email that I have
been receiving daily for several weeks). But as far as DeCSS goes, in
the words of the petition, “there was no demonstration of actual
harm.” This is why, elsewhere, the petition says: “the panel
incorrectly failed to scrutinize the empirical record for
‘substantial evidence’ to support the burden on
speech.”
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Second (and here is the powerful argument on constitutionality I
mentioned earlier) an earlier case has ruled that the court is
supposed to look for “the availability and efficacy of
‘constitutionally acceptable less restrictive means’ of
achieving the Government’s asserted interests.” There are
plenty of things (itemized in the petition) that Congress could have
done to prevent copyright infringement that are less restrictive than
the proven effects of the anti-circumvention clauses.
In short, the defendants are telling the courts to do their job and
uphold the First Amendment in the face of a radical, sloppy, and
repressive law. And the defendants have found precedents to back up
their challenge.
There is good grounds for pessimism, though—the courts have let
the large studios lead them around by the nose, just as Congress has.
The trend toward finding any excuse suitable for suppressing the
distribution of programs that could be used to exchange copyrighted
material will soon have an even more substantial impact. The music
studios had a strong case when they shut down Napster for vicarious
and contributory copyright infringement. But now they are trying to
shut down sites that distribute purer forms of peer-to-peer
file-sharing programs.
The creators and distributors of the programs do none of the indexing
and connection-making that Napster did. Their only involvement in
copyright infringement is to distribute a program that has many useful
and legal purposes. But the copyright juggernaut has become
unstoppable. Watch the courts find a way to clamp down on the trade
of computer programs and to further weaken any rights left to
programmers, product developers, and the public.
Nice work if you can get it
Some defenders of DeCSS suggest changing copyright law so that the
anti-circumvention clauses are applied only when actual copyright
infringement takes place. This would make the anti-circumvention law
less of a radical imposition on the course of technology. Perhaps it
would change an unconstitutional law into a constitutional one. But it
would leave the courts to decide the programmer’s intent, something
that is hard to determine even with DeCSS.
The DMCA contains two passages that provide fodder for its critics by
suggesting that Congress did not intend the law to have the
momentously damaging impact that is now emerging. The passages are
striking because they were clearly inserted to reflect limits
requested by opponents or by those worried about unintended
consequences, not because they are integral to the law. The Second
Circuit quickly disposes of these passages with an attitude that
appears to be: “if it invalidates the law, it must be
ignored.”
One passage is:
Nothing in this section shall enlarge or diminish any rights of free
speech or the press for activities using consumer electronics,
telecommunications, or computing products.
One would think that this passage was meant to act as a brake upon
abuses of the law, and indeed the defendants cite it in defense of
their free speech rights. The Second Circuit brushes past the sentence
with the excuse that, “Congress could not ‘diminish’
constitutional rights of free speech even if it wished to.” End
of discussion, except for a bit of finger-shaking at the defendants
for trying to “enlarge” their free speech rights.
Taken out of context, the court’s argument has logic. Congress
isn’t abridging free speech because it can’t do
so—yet it allows the movie studios to abridge free speech
through lawsuits. The computer code is less subject to First Amendment
protection, as explained before, because of its
“functional” aspect and the “content-neutral”
ban.
A comparable passage is subsection 1201(c)(1):
Nothing in this section shall affect rights, remedies, limitations or
defenses to copyright infringement, including fair use, under this
title.
The court’s reading of this clause is even more cynical than the
previous one. It says that fair use applies to the copyrighted
material itself, not to the circumvention of technical measures. And
only circumvention, not use, is prohibited by the law. According to
this court, once you’ve illegally circumvented the encryption
system, viewing the material is legal:
Subsection 1201(c)(1) ensures that the DMCA is not read to prohibit
the “fair use” of information just because that
information was obtained in a manner made illegal by the DMCA.
Thank heaven for small mercies.
To its credit, the Second Circuit made a consistent argument that the
DMCA does not abridge fair use. To be sure, studios could prevent a
history professor from showing a segment of a movie to a class, or
prevent a radio critic from airing snippets of an audio program along
with commentary. But the professor could capture a segment by
stationing a video camera in front of a screen, while the radio critic
could play the audio program into a microphone. The resulting
degradation in quality, the court claimed, would probably not impair
the educational or critical use of the work.
To be sure, the court approaches fair use more respectfully the
entertainment industry, which openly considers fair use a fluke that
is past its time. But one can detect a cavalier attitude toward the
public in the court’s suggestion that our legally protected
rights be achieved through such cumbersome measures. One could expect
a court dedicated to preserving legal rights and public interests to
suggest a more dignified course, such as requiring licenses to include
provisions for allowing users to replay portions of a work for
critical and research purposes. Furthermore, its remedy does nothing
for libraries and other institutions that need to archive a work.
But the degradation of visual or sound quality is overshadowed by a
more subtle degradation in community and academic life. By making
untraditional uses of works more difficult, the DMCA will hamper
people who want to bring something to an informal meeting of their
church or civic group. The casual information sharing that provides
new ideas and impetus for students and community activists will
markedly decrease.
How long do I have to wait?
The Second Circuit’s opinion contains a good deal of
disconcerting reasoning that I’ll mention here without going
into detail. For one thing, it carefully screens facts to present a
history of the DMCA and the DeCSS case the way the studios would want
it. In addition, it continues the tendency I’ve noted earlier
to ignore what it can’t fit into its scheme.
The defendants argued the DMCA unconstitutionally overrides copyright
law, because technical controls last forever while copyright is meant
to expire after a certain time period. (Of course, this is somewhat
moot because the deadline keeps being extended by Congress as a favor
to people who died decades ago.) The Second Circuit dismisses this
self-evident criticism in a characteristically perfunctory manner:
“the argument is entirely premature and speculative at this time
on this record.” Then the judges relent a bit by citing the
earlier decision in the case:
As Judge Kaplan noted, the possibility that encryption would preclude
access to public domain works “does not yet appear to be a
problem, although it may emerge as one in the future.”
So when can we challenge the law? Seventy years from now, when some
work is effectively prevented from entering the public domain?
Even given the Second Circuit’s predilection to rule for the
plaintiffs, its insensitivity to the seriousness of its ruling is
cause for concern. The ban on linking, for instance, is a major
intervention into the rights and practices of the Web—in fact, a
blow at its very heart—not to mention a shadow hanging over
communications technologies that will emerge in the future. The new
limitation of free speech in computer programs is also far-reaching.
As the defendants’ petition points out, the Second Circuit ruling
relegated Internet activities to “second-class First Amendment
citizenship.” The famous Supreme Court ruling against the
Communications Decency Act, Reno v. ACLU, pointed out the
boon represented by the Internet’s speed and ease of connection.
But these are precisely the reasons that the Second Circuit considers
links dangerous! Thus the petition says that “the panel stood ACLU
I on its head.”
The court prided itself on its “evolutionary” approach,
its “narrow” holdings, and its “appropriate
caution.” But this narrowness applies only to the rights of the
defendant. The plaintiffs are running amok. If there’s one thing
we’ve all learned during the long fight over the DMCA, the WIPO
copyright treaty, and the cybercrime bill, social effects of
legislation tend to have long reaches.
Which side makes the most sense?
