The Second Circuit Court of Appeals has decided for holders of intellectual property in , the DeCSS case. It upheld, against a First Amendment free speech challenge, the provisions of the that prohibit circumvention of encryption codes and password protections or trafficking in circumvention measures.
A lot of adjectives apply to the opinion: it is correct, pointless, important, and disturbing, all at the same time.
The context is that movies for home viewing are put on DVDs and protected by Content Scrambling Code (CSS). They can then be viewed only on DVD players equipped both to decode and to prevent copying. DeCSS is a computer program that circumvents the protection and creates an unprotected copy of the movie on a computer hard drive.
The defendant in this case printed the code for DeCSS on his website and, when told to cease by the trial court, posted links to other websites where the program could be found. These activities were enjoined as violating the DMCA, and he defended on First Amendment grounds.
So now for the adjectives:
Correct. Gliding over the intricacies of free speech jurisprudence, which are formidable, the court faced a fundamental issue -- given that computer code is indeed protected speech, could Congress legitimately choose to impair it somewhat in order to protect intellectual property from decryption? The answer is yes.
Pointless. DeCSS, which takes a mere seven lines of code, is on the Internet. It is a genie that cannot be put back in the bottle, and CSS as a viable system of protection is dead.
Important. Nonetheless, legions of programmers are working to develop better encryption systems. As these come on line, other programmers will try to crack them. The DeCSS decision affirms that legal protections as well as technological will be deployed. The blunt fact is that content will not be made available online unless it can be protected, so effective protection is absolutely necessary if the golden promises of the Internet are to be kept.
Disturbing. Any inhibitions on speech or free inquiry are troubling, and these are certainly involved in the DeCSS affair. The , which bore the brunt of the defense, makes some eloquent points. But equally disturbing is the stunted view of free speech presented by EFF and its allies in the academic community (45 professors of intellectual property supported the defendant). Your right to write code is protected by the First Amendment, but so is my right to make movies. As noted by Wayne Crews and Adam Thierer in a recent Cato Institute , my exercise of my right requires an economic base which can be developed only by limiting access to the product to those who pay. Decryption destroys that economic base, so why should the code breaker’s right to decrypt trump the creator’s right to communicate with conditions?
As a thought experiment, imagine that Congress passed a law saying that producers of IP were not allowed to protect it with encryption. Would EFF and its academic allies contend that such a law is consistent with either the First Amendment or with the Fifth Amendment’s prohibition on uncompensated ? If they would so argue, what would they say about a law forbidding theaters to charge for tickets?
The DMCA presents lots of problems and slippery slopes. The instant case is civil, but the DMCA also has criminal penalties, and this is deeply worrisome. But in this one, the Second Circuit got it right.