[FYI] (Fwd) [GILC-plan] Article: Copy Controls and Circumvention: Do

["Axel H Horns" <horns@ipjur.com>]

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Date sent:      	Thu, 17 Jan 2002 15:00:35 -0500 (EST)
From:           	Andy Oram <andyo@oreilly.com>
To:             	gilc-plan@gilc.org
Subject:        	[GILC-plan] Article: Copy Controls and Circumvention: Don't Get Around Much Any More

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http://www.oreillynet.com/cs/weblog/view/wlg/1068

Copy Controls and Circumvention: Don't Get Around Much Any More

   by Andy Oram
   Jan. 17, 2002

   The one-two punch delivered by two court rulings in a closely
   followed DeCSS case failed to knock out [50]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 [51]ruling against 2600 and the
   defendants' [52]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 [53]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:

    1. Computer code is not just speech, where it serves an expressive
       purpose; it also serves a functional purpose.

    2. The anti-circumvention clauses ban the functional aspect of
    DeCSS,
       not the expressive part. This makes the ban "content-neutral."

    3. 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 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' appeal 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' appeal argues that the Second Circuit made the
   wrong choice, even if the standard of "intermediate scrutiny" is
   accepted, for several reasons:

    1. 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
       appeal,"there was no demonstration of actual harm." This is
       why, elsewhere, the appeal says: "the panel incorrectly failed
       to scrutinize the empirical record for `substantial evidence'
       to support the burden on speech."

    2. 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 appeal) 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, according to this court, 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' appeal 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 appeal 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.

   [54]Andy Oram is an editor at O'Reilly & Associates specializing in
   books on Linux and programming. Most recently, he edited
   [55]Peer-to-Peer: Harnessing the Power of Disruptive Technologies.
   ... Copyright (c) 2000-2002 O'Reilly & Associates, Inc. All Rights
   Reserved.

References

  50. http://www.2600.com/
  51.
  http://www.eff.org/Cases/MPAA_DVD_cases/20011128_ny_appeal_decision.
  html 52.
  http://www.eff.org/IP/Video/MPAA_DVD_cases/20020114_ny_2600_appeal.h
  tml 53. http://www.digital-copyright.com/ 54.
  http://www.oreillynet.com/pub/au/36 55.
  http://www.oreilly.com/catalog/peertopeer/
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