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[dvd-discuss] Draft of article on Second Circuit and appeal
- To: dvd-discuss(at)cyber.law.harvard.edu
- Subject: [dvd-discuss] Draft of article on Second Circuit and appeal
- From: Andy Oram <andyo(at)oreilly.com>
- Date: Thu, 17 Jan 2002 09:11:29 -0500 (EST)
- Reply-to: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
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
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 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 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
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 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
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
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
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
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
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
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
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
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"
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
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
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.