Part 12 (1/2)

That is not always enough, of course. Sometimes the problem is that the speaker cannot paraphrase around the restraints posed by copyright. He needs to use the particular text or image in question to convey his message. The ideas, the facts, or a mere paraphrase of the expression would not be enough. In cases like that copyright's answer is ”fair use.” A politician could not prevent journalists who disagree with him from quoting his autobiography in discussing his life. If an African-American author wishes to tell the story of Gone With the Wind from the slaves' perspective, she may do so in the face of the copyright holders' attempts to stop her. Even fair use, though, may not cover every concern about free expression. Before World War II, Alan Cranston--later a U.S. Senator--wanted to convince American readers that the version of Hitler's Mein Kampf published in the United States was distorted. He believed it to be slanted toward American sensibilities, downplaying both anti-Semitism and German expansionism. His solution? To publish his own English translation, taken direct and uncut from the German edition. He wanted to prove, with Hitler's own words, that the United States had a dangerously distorted version of the German leader. But this is the kind of thing copyright law forbids and it is not clear that fair use allows. (In the end he did it anyway.)7 46

For the moment though, it is enough to realize that copyright law is not immune from the First Amendment or from free speech concerns more generally. If we do not notice that most of the time, it is because the internal limitations of copyright--fair use, the idea-expression distinction, and so on--generally take care of the First Amendment issue, not because the issue was never there.

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So what First Amendment issues did the DMCA present? Most obviously, the DMCA gave a new right to copyright owners. By using a few simple technological measures, they could distribute a work in a particular format and yet, because of their new intellectual property right, they could make illegal an otherwise lawful process of gaining access for the purposes of making fair use. Of course, the First Amendment allows me to make fair use factually impossible. I can do that without raising any const.i.tutional issues by hiding my ma.n.u.script and never letting you see it or just by using unbreakable encryption on my digital products. It allows me to use existing conventional property rights to make fair use illegal. If I own the only copy of the book and it is inside my house, it would be trespa.s.s for you to enter. No First Amendment problem there. But in pa.s.sing the DMCA, Congress had created a new intellectual property right inside copyright law itself, a law aimed directly at expression, that made it illegal to get access for the purpose of making fair use even when you legally bought the physical book, or the physical DVD, and now wish to quote it or parody it. Even that is not the problem. It is that Congress cannot grant the exclusive rights of copyright without simultaneously accompanying them by the limitations of fair use.8 Regardless of what physical constraints and tangible property rights might do to limit my ability to make fair uses, Congress had now, by law, allowed a copyright owner to distribute a particular work with the exclusive rights but without some of those limitations.

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Imagine that Congress had pa.s.sed the following law instead of the DMCA: ”Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circ.u.mvent the red dot even if, but for the dot, the use would have been fair.” That would be clearly unconst.i.tutional. It gives copyright owners a new intellectual property right to ”turn off fair use” in copyrighted works distributed to the ma.s.s market. Is the DMCA not the same thing?

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This was the issue in Reimerdes. True, if I cut through the digital fence on a DVD in order to excerpt a small portion in a critical doc.u.mentary, I would not be violating your copyright, but I would be violating the anticirc.u.mvention provisions. And DeCSS seemed to be a tool for doing what the DMCA forbids. By providing links to it, Mr. Corley and 2600 were ”trafficking” in a technology that allows others to circ.u.mvent a technological protection measure. DeCSS could, of course, be used for purposes that did not violate copyright--to make the DVD play on a computer running Linux, for example. It enabled various noninfringing fair uses. It could also be used to aid illicit copying. But the alleged violation of the DMCA had nothing to do with that. The alleged violation of the DMCA was making the digital wire cutters available in the first place. So one First Amendment problem with the DMCA can be stated quite simply. It appeared to make it illegal to exercise at least some of the limitations and exceptions copyright law needs in order to pa.s.s First Amendment scrutiny. Or did it just make it very, very difficult to exercise those rights legally? I could, after all, make a videotape of the DVD playing on my television, and use that grainy, blurry image in my doc.u.mentary criticizing the filmmaker. The DMCA would not be violated, though my movie might be painful to watch.

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The other possible First Amendment problem with the DMCA was that in regulating programs such as DeCSS, the DMCA was actually regulating ”speech.” The first challenge to the DMCA was that, by making tools like DeCSS illegal, the DMCA took away a const.i.tutionally necessary escape hatch to copyright, thus making copyright law as a whole violate the First Amendment's guarantee of freedom of speech. The second challenge was different. The problem was that the program itself was speech and the DMCA was regulating it illicitly.

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The reasoning went like this. A computer program is a form of expression and communication. The source code can even be read by human beings. True, it is an abstract form of communication--like musical notation and mathematical algorithms.

But those are clearly protected by the First Amendment. Congress could not make Schoenberg's twelve-tone scale illegal or punish mathematicians for physics equations that seemed to support a theory of the universe's origin other than the creationism that is currently so popular. True, the source code is a description of a method of doing something, and the code can, if run on a computer, produce a result--but one could argue that those attributes do not affect the First Amendment's protection.

Neither a recipe for hash brownies nor a player piano roll for the n.a.z.i ”Horst Wessel” song could const.i.tutionally be prohibited, even though actually to make the hash brownies would be illegal, and even though the piano roll is functional (it ”makes” the player piano play the tune). True, most people cannot read computer code, but speech does not need to be common or accessible to be protected. In fact, the courts have even held that the choice to communicate in a particular language is const.i.tutionally protected in some settings.

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On the other hand, software code is undeniably functional. Lots of functional articles can be said to have some expressive content--a gun, an airbag, a crash helmet, a set of burglar's tools, a computer virus. And many actions have expressive content: a terrorist bombing, for example. Surely these could be regulated by Congress? To the defendants, DeCSS looked like a physics equation, a musical score, or a recipe. To the movie studios, DeCSS had all the First Amendment significance of a crowbar, lock pick, or, for that matter, a car bombing. The same argument was repeated over the hyperlinks that Corley and others provided to sites which carried the DeCSS program. Speech or function? To the defendants, forbidding 2600 to link to these sites was like preventing the Was.h.i.+ngton Post from describing the availability of drugs on certain blocks of 16th Street. To the movie companies, the hyperlinks were the equivalent of loading potential buyers into a van, taking them down there, and giving them enough money to make the purchase.

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Which of the two First Amendment arguments is more convincing?

That the DMCA is a congressionally created off-switch for fair use? Or that software code is speech and the DMCA restricts it?

Like a lot of scholars, before Reimerdes went to trial, I thought that the first argument was by far the more powerful. I still do. I thought the odds of the court buying the ”code is speech” argument were low. About that I was wrong, though it turned out not to matter.

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A number of the reports noted that after some initial skepticism, Judge Kaplan had been impressed by the defendants'

expert witnesses, particularly those who had testified that code was speech. When the ruling came out, this impression was confirmed. Judge Kaplan agreed that code was a form of speech or expression. But celebration was premature. Having done so, he disagreed with the defendants' claim that it could not be regulated.

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Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the a.s.sa.s.sination of a political figure is purely a political statement. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an a.s.sa.s.sin immunize the a.s.sa.s.sin's action. In an era in which the transmission of computer viruses-- which, like DeCSS, are simply computer code and thus to some degree expressive-- can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination of code in appropriate circ.u.mstances. The Const.i.tution, after all, is a framework for building a just and democratic society. It is not a suicide pact.9 56

Judge Kaplan is right in saying that there cannot be a bright- line rule immunizing computer code from regulation merely because it has expressive elements. The First Amendment does not protect computer viruses. But the defendants were not arguing that computer code was const.i.tutionally inviolable, only that any law that regulated it had to be subject to First Amendment scrutiny. After all, the government makes the description of how to make a nuclear weapon cla.s.sified information. That is clearly ”speech,” but its regulation is also const.i.tutional. The First Amendment is not, and never was, an absolute guarantee of freedom of speech. Instead, the question is whether the law is within the realm of ”the freedom of speech” guarantee, which in turn depends on what kind of a law it is. Where does it fit in the ”levels of scrutiny” that courts have constructed to discriminate between types of legislation affecting speech? Is the DMCA a ”content-based” regulation, such as a law forbidding labor picketing but allowing other kinds of demonstrations?

Content-based regulations are given the highest and most demanding level of scrutiny. Alternatively, is it a ”content- neutral” regulation, such as a law that forbids talking--about any subject--in a library? To Judge Kaplan, the answer was clear, and grounds for sarcasm.

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The reason that Congress enacted the anti-trafficking provision of the DMCA had nothing to do with suppressing particular ideas of computer programmers and everything to do with functionality--with preventing people from circ.u.mventing technological access control measures--just as laws prohibiting the possession of burglar tools have nothing to do with preventing people from expressing themselves by acc.u.mulating what to them may be attractive a.s.sortments of implements and everything to do with preventing burglaries.

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I agree, though it is worth noting that the burglar tool a.n.a.logy is a disputed one. Johansen claimed DeCSS was more like a screwdriver--something with both licit and illicit uses.

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So the DMCA was content-neutral regulation. That means it still has to pa.s.s a fairly daunting legal threshold. It will only be upheld if ”it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”10 Judge Kaplan felt that the DMCA satisfied that standard. I am not so sure. Yes, the governmental interest in protecting copyright holders' rights is important. And yes, I must disagree with some of my friends in the civil liberties world and say that the government's interest is unrelated to the suppression of free expression. But is ”the incidental restriction of First Amendment freedoms no greater than is essential to the furtherance of that interest”? In other words, could the DMCA have achieved its goals without imposing as great a limitation on the expression of people like Mr. Johansen and Mr. Corley?

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Congress could have pa.s.sed many laws less restrictive than the DMCA. It could have only penalized the use of programs such as DeCSS for an illicit purpose. If it wished to reach those who create the tools as well as use them, it could have required proof that the creator intended them to be used for illegal purposes. Just as we look at the government's intention in creating the law, we could make the intent of the software writer critical for the purposes of a.s.sessing whether or not his actions are illegal. If I write a novel detailing a clever way to kill someone and you use it to carry out a real murder, the First Amendment does not allow the state to punish me. If I write a manual on how to be a hit man and sell it to you, it may. First Amendment law is generally skeptical of statutes that impose ”strict liability” without a requirement of intent. But Judge Kaplan believed that the DMCA made the motives of Mr.

Johansen irrelevant, except insofar as they were relevant to the narrowly tailored exceptions of the DMCA, such as encryption research. In other words, even if Mr. Johansen made DeCSS so that he and his friends could watch DVDs they purchased legally on computers running Linux, they could still be liable for breaking the DMCA.

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