[dvd-discuss] Draft of article on Second Circuit and appeal

[Andy Oram <andyo(at)oreilly.com>]

I showed a draft of the following article to this list a few
weeks ago, but I've just added my interpretation of the
appeal. I'd like to publish it on my web site soon; I'd
appreciate any comments (especially where I mention the
appeal).

Andy

----

        Copy Controls and Circumvention: Don't Get Around Much Any More
                                        
   The one-two punch delivered by two court rulings in a closely followed
   DeCSS case failed to knock out [1]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 filed for
   an [2]appeal, with legal support as always by the Electronic Frontier
   Foundation. This appeal, superficially a series of hair-splitting
   definitions and references to court rulings, actually contains a
   powerful argument that may be used to rule the notorious
   anti-circumvention clauses of the Digital Millennium Copyright Act
   unconstitutional.
   
   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 has impacts on the development of innovative technology, the
   publication of programs and computer science information, and the fluid
   nature of the Web as reflected through 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 [3]ruling
   made against 2600 by the Second Circuit Court of Appeals, as well as in
   the defendants' appeal.
   
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 from Russia to the
   United States 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 seems far removed from issues of free speech: it
   seems aimed at the copyright equivalents of devices that warn drivers
   of police radar or the old, illegal "blue boxes" that permitted people
   to make long-distance phone calls for free.
   
   Yet Congress was well aware that copyright functions in certain
   circumstances as a restraint on speech. They 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 [4]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 they passed the DMCA. Defenses in DeCSS 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 on exemptions from the anti-circumvention clause last year.
   
   Congressional intent does not make something right. Indeed, many
   critics are trying to establish that Congress overstepped its
   constitutional rights 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 where the plaintiff is seeking 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 themselves 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, whre it serves an expressive
       purpose, but 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 magaphones 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 fail to be content-neutral and would therefore
   be unconstitutional.
   
   By this logic, there could not seem to possibly 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 courts 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 like 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 in order 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 their argument in the plaintiffs' camp. They 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, all they need is to apply "intermediate scrutiny." (I am
   indebted to Professor Peter D. Junger, of Junger v. Daley fame, for
   this point.)
   
   And that gives the court much more leeway in imposing a ban. Enough
   leeway, in fact, to permit the meat-cleaver injunction banning Web
   links to sites that contain 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 was almost certainly not the intent of the courts
   that previously declared computer programs were 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:

     * 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 yet 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."

     * 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 peer-to-peer file-sharing programs in a more
   pure form.
   
   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 achieved an
   unstoppable momentum. 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 it up to courts to decide what the intent of programmer is,
   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 are not integral to the law but were clearly inserted to reflect
   limits requested by opponents or by those worried about unintended
   consequences. Second Circuit disposes quickly of 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 they can't do so--yet they allow 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. They say that fair use applies to the copyrighted
   material itself, not to the circumvention of technical measures. And
   only circumvention is prohibited by the law, not use. 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 fair
   use is not abridged by the DMCA. 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 use of the work for educational or critical use.
   
   To be sure, the court's approach to fair use is more respectful than
   that of 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 that 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 they 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 activies 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! 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 treaty, and the cybercrime bill, social effects of
   legislation tend to have long reaches.

References

   1. http://www.2600.com/
   2. http://www.eff.org/IP/Video/MPAA_DVD_cases/20020114_ny_2600_appeal.html
   3. http://www.eff.org/Cases/MPAA_DVD_cases/20011128_ny_appeal_decision.html
   4. http://www.digital-copyright.com/