Viewpoint David S. Touretzky Free Speech Rights for Programmers Misuse of copyright law is an affront to the rights of scientists. he Digital Millennium works such as DVD movies from unlimited copy- Copyright Act (DMCA) ing. But as Jessica Litman explains in her book, Dig- T was supposed to protect ital Copyright, since 1909 Congress has been publishers from electronic enacting whatever copyright provisions the lawyers piracy. Instead it’s being used to for the major content-producing and distributing curtail the speech of computer industries negotiate among themselves [1]. No one scientists. Congress had been is looking out for the public’s right of fair use. warned this would happen, to no The technology that protects DVD movies is an avail. Now, with our First Amendment rights under incompetently designed stream cipher known as attack, we must rise to defend them. But first, some Content Scrambling System (CSS) [3]. The law, not history. the cipher, provides the real protection. But movie A century ago, many forms of speech were sup- studios had other uses in mind for the new law. pressed on the theory that they threatened the social They could eliminate fair use because the law pro- order. Women’s rights pioneer Margaret Sanger was hibits access to a work in a manner not approved by indicted under the Comstock Act in 1914 for dis- the copyright owner. They could control which tributing information about birth control. Political movies customers watch through a region-coding activists who protested U.S. involvement in WWI mechanism requiring North American DVD players were serving time for sedition. But beginning with to reject discs intended for European or Asian mar- the founding of the American Civil Liberties Union kets, and vice versa. They could even force viewers in 1920, a series of successful First Amendment to sit through commercials, by locking out the fast- cases gradually broadened speech protections to forward function. Consumers would naturally prefer include virtually all subject matter. As technology DVD players without these enhancements. But progressed, this extended to new modes of expression under the DMCA, using an unauthorized player to as well, including audio recordings, motion pictures, watch a movie, even in the privacy of one’s own and Web pages. Today even the most inflammatory home, carries a fine of up to $2,500. And selling ideas can be voiced with impunity—and in the case such a player could result in imprisonment for up to of some artists, at considerable profit. five years. How ironic that the most recent attempt to limit Software DVD players for the Windows and free speech comes from Hollywood. And it’s Macintosh operating systems created new markets directed at computer programmers. In 1998, Con- for DVD movies, but also undermined the studio’s gress made a series of revisions to the DMCA. Sec- access control scheme. Programmers quickly devised tion 17 USC 1201(a)(1) makes it illegal to tools to gain access to digital content, initially by circumvent a technological measure that controls capturing frames from the video board during play- access to a copyrighted work, and section 1201(a)(2) back by an authorized player, and later by decrypt- makes it illegal to “traffic” in any circumvention ing the DVD files. When a decryption program technology, product, service, or device. Congress was called DeCSS began to propagate on the Net, the

LISA HANEY assured these changes were necessary to protect studios filed lawsuits to suppress it. They claimed

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the program was an illegal circumvention device. and suggested that to afford the studios the protec- But in the view of most programmers, code is tion they sought, the court would have to prohibit speech. my wearing the shirt in places where others might On July 25, 2000, I testified for the defense in see it. 1 Universal City Studios, Inc. v. Reimerdes (also known Media coverage of my testimony resulted in a flood as the 2600 case. U.S. District Judge Lewis A. of contributions to the gallery, from visual art to Kaplan had issued a preliminary injunction in Janu- music to , all expressing the decryption algo- ary 2000, prohibiting the defendants from distribut- rithm in creative ways. Someone set the code’s English ing DeCSS source or executable files, but not from translation to music. The song was immediately publishing discussions of the algorithm. The judge banned from MP3.com out of fear of Hollywood’s recognized only the discussions as protected speech. wrath (and not unreasonably, since the studios had by In reaction to this, I created a Web site called the that time sued over the t-shirt.) Later, pro- “Gallery of CSS Descramblers” (www.cs.cmu.edu/ grammers at MIT produced Perl and C implementa- ~dst/DeCSS/Gallery) to illustrate the absurdity of tions of the algorithm that were only about 450 bytes trying to draw meaningful distinctions between each—short enough to jot on a cocktail napkin. One computer code and other forms of expression. of these programs has now been encoded as a prime One of the gallery exhibits was the C source code number. Perhaps this is illegal too. for the DeCSS decryption routine. What was the We lost the 2600 case, although Judge Kaplan court’s basis for objecting to publication of this code? said he was persuaded by the portion of my testi- Perhaps it was the knowledge that the code could be mony showing that both source and object code compiled and executed, while a mere discussion of have expressive content, and thus deserve First the algorithm could not. A second gallery exhibit Amendment protection. Code really is speech. But was some GIF files containing a screen dump of the even protected speech may be censored if the gov- code. These weren’t compilable; they were only pic- ernment demonstrates a compelling interest, and a tures of the code. Was it legal to publish such pic- judge can be convinced that less restrictive measures tures? If not, then I had another exhibit to offer: a won’t suffice. In rejecting the defendants’ free speech version of the code expressed in a computer language argument, Judge Kaplan declared that the functional of my own devising, but with C semantics. Since no aspect of computer code made it more dangerous existed for this language, should this than other forms of speech, hence more deserving of exhibit be considered “code”? And if I published the suppression. Kaplan declined to offer an opinion on algorithm in this form and someone later wrote a the other gallery exhibits. compiler for the language, what would have As of this writing, the ruling is currently on changed? Perhaps what the judge intended to ban appeal, and the case will probably end up before the was any description of the algorithm in a rigorous Supreme Court. No matter what the courts decide, formal notation. In that case I had translated the C the studios will not soon regain control over DVD code line by line into English. Surely this version movies. Improved decryption software is available was protected speech. But any beginning program- from Web sites in countries that don’t (yet) have a mer could convert the English description back to C local equivalent of the DMCA, such as Flexion.org in again. So what was gained by banning the C code the U.K. [4]. And people are beginning to trade itself? Finally, I offered a picture of a t-shirt with the movies online, just as they have traded music. Such decryption code printed on it, purchased from an noncommercial sharing, which Hollywood denigrates organization called CopyLeft. I wondered whether as “piracy,” might one day alter the economics of the the shirt itself qualified as a “circumvention device,” movie industry. Of more immediate concern is the chilling effect 1 111 F.Supp.2d 294 (S.D.N.Y 2000) the DMCA has on scientific speech. Already, a fac-

24 August 2001/Vol. 44, No. 8 COMMUNICATIONS OF THE ACM ulty member at the University of North Carolina has Congress never intended the DMCA to diminish been forced to take down online class materials deal- anyone’s First Amendment rights. Nor did it wish to ing with DeCSS. And on April 26, 2001, at a work- make fair use impossible. Before the EU states adopt shop a few blocks from my office, a group of similar legislation, we should demand that Congress computer scientists led by Ed Felten, a Princeton repeal not only the DMCA’s anti-trafficking provi- University professor, was prevented from publicly sion, but the anticircumvention provision as well. c presenting its research on breaking music watermark- ing algorithms. The recording industry had threat- References ened the group with a lawsuit under the DMCA [2]. 1. Litman, J. Digital Copyright. Prometheus Books, Amherst, NY, 2001. 2. Markoff J. Record panel threatens researcher with a lawsuit. New York This aggressive misuse of copyright law is an intoler- Times, Jan. 15, 2001. able affront to the rights of computer scientists. If 3. Stevenson, F.A. Cryptanalysis of contents scrambling system. (1999); www.cs.cmu.edu/~dst/DeCSS/FrankStevenson/analysis.html. the DMCA’s prior restraint on the publication of 4. Wilson, D. Who really is getting ripped? Los Angeles Times, Mar. 15, 2001. “dangerous” knowledge is upheld, the precedent will surely bolster the efforts of other would-be censors David S. Touretzky ([email protected]) is a principal scientist in with their own agendas. To protect its income the Computer Science Department at Carnegie Mellon University. stream, Hollywood would drag us all down a slip- pery slope. © 2001 ACM 0002-0782/01/0800 $5.00

Coming Next Month in Communications September marks the 32d anniversary of the Internet (in its various states of evolution) and we celebrate with a collection of articles and essays that ponder its future. The topics include:

Beyond the Post-PC Internet • Interplanetary Internet • Nomadic Computing and Smart Spaces • The Next End-User Network • The Web’s Hidden Order • Whatever Happened to the Next-Generation Internet?

Also in September, look for articles that examine a framework for using information security as a response to competitor analysis and a trio of articles on some of the latest advances in e-medical records and smart card applications in health services.

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