(This is an essay I wrote for a class called "Methods of Argument")
As we move into the new century, the way society exchanges ideas is changing. We used to share our ideas in "analog" format, or in a format with a very real physical component (for example ink and paper for text, records or tapes for music or canvas and paint for pictures). Now that is changing into more ethereal text-based digital formats. This change in the essential packaging of our culture has created a debate as to whether the packaging itself is "speech" protected under the First Amendment. However, the more one studies the issues involved, the only reasonable conclusion is that computer code, or the digital "packaging", is speech in the way the authors of the Constitution defined it.
This issue has long reaching implications for non-technically minded people. Previous concepts such as fair use and general property rights will be affected in the future as we move into cultural products only being available in digital form. The world may soon see the day where criticism of artwork or educational use of copyrighted text is dictated by the creators of the works themselves via some type of license. Imagine not being able to criticize a movie with out a movie companies' consent - that day may soon be upon us.
Computer or source code, in its simplest definition is the language humans use when controlling a computer. This is much like how an American would need to learn the French language to converse with a person from France. A person would need to learn a programming language to give instructions to a computer. Extending this analogy further, just as no two people write in a particular language in the same exact way, the same holds true for writing in a computer language. It is this ability to write unique code that should guarantee computer code the same protections as any other text. In fact, David Touretzky a professor of computational neuroscience at Carnegie Mellon University has described source code as having expressive content, and you can't distinguish between different forms of description of an algorithm, whether they're in computer language like C or English or some other notation (Universal City 1067 9-12). However, it seems the United States Congress and the federal courts do not hold code to quite this high an esteem.
On October 28, 1998, then-President Clinton signed into law a piece of legislation entitled The Digital Millennium Copyright Act (DMCA) that was intended to give legal remedy to copyright holders when others tried to misappropriate their digital works (Bradner). One of the sections of the law forbids, any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner (DMCA SEC. 1201b 1998). This language effectively forbids the common practice of reverse engineering or a computer scientist's ability to take apart programs and to examine the underlying code. This is akin to submitting an article in any other scientific discipline to an academic journal without allowing scientists to test the author?s conclusions.
This debate has become centered on a recent court case, Universal City Studios, Inc., et al v. Shawn C. Reimerdes, et al., which was tried in New York over the summer of 2000. The case stems from the posting of a computer program called DE-CSS on the Internet by Jon Johansen a sixteen year-old member of the group Masters of Reverse Engineering or MoRE, and it's subsequent publication by the journal 2600: The Hacker Quarterly (Corley).
The program effectively removed the cryptographic protection on a DVD (Digital Video Disc) movie. MoRE's motivation for publishing the program was to allow users of the Linux operating system (for which there was not a licensed DVD player) and other non-Windows or Macintosh based computers to view movies they purchased legally on the hardware of their choice (OpenDVD.org). However, the seven major movie studios flexed their lobbing arm, through the Motion Picture Association of America (MPAA), and sued Johansen in criminal court in his home country of Norway and 2600 in civil court in New York to try and stop the release of the code. The MPAA was successful in it's request that the court issue an injunction to stop all current and future releases of the source code, effectively stating that source code does not deserve the same protections as other types of speech under the First Amendment.
The presiding judge Lewis A. Kaplan found that copyright, at least under the DMCA was more important than speech. However Stanford Law School Professor Lawrence Lessig disagreed with Kaplan's interpretation. He pointed out that, The framers of our Constitution were extraordinarily skeptical about granting the power to Congress to create monopolies over the right to speak and the right to deploy ideas. And in Pennsylvania before they adopted the Constitution they said, We will not adopt the Constitution until there is a First Amendment to guarantee That the copyright clause does not mean the power to control the development and distribution of culture (Lessig-Valenti).
However the movie studios and their chief spokesman Jack Valenti head of the MPAA, contend that DE-CSS will be a tool only for, pilfering zealots eager to enfold films in the same embrace now choking the music world (Valenti NY Times). Hollywood claims that Congress and the courts should prevent code writers from reverse engineering since the entertainment industry collects more international revenues than any other area of business in this country (Valenti NY Times).
However, the movies studios are not understanding the technology they are calling criminal. If someone has a licensed player, the only thing a pirate has to do is make a copy, encryption and all. The only reason a person would decrypt a movie is to watch it on a non-licensed player (OpenDVD.org).
Although, even asking what the purpose of DE-CSS is, is missing the point. Source code, which DE-CSS is, "is that subset of human expression which computers can interpret and execute (Abelson)", and should be given the highest of protections regardless of the purpose of the program. Seventeen of the nation's top academics and computer scientists have also argued in their brief in support of the defendants that, "Computers can interpret increasingly larger subsets of human expression; thus, restricting the expression of source code restricts increasingly larger subsets of human expression (Abelson)."
After studying the facts of this case I am convinced that source code is "speech" as the courts have interpreted it in the past and should be given the highest First Amendment protection. And as the world becomes more digital in it's culture, source code should be given more the same rights as traditional writing. For if in the digital world people can no longer communicate in their language of choice, computer code included, maybe we need to rethink the way the world is headed.
Scott Bradner. Ignorance is Bliss. Network World Fusion Jan. 31, 2000. Jan. 27, 2001 (http://www.nwfusion.com/columnists/2000/0131bradner.html).
The Digital Millennium Copyright Act of 1998. Publ. L. 105-304. 28 OCT 1998.
Universal City Studios, Inc., et al v. Shawn C. Reimerdes, et al. 00 Civ. 277 (LAK) United States District Court, Southern District of New York.
Lawrence Lessig and Jack Valenti. The Future of Intellectual Property on the Internet: A Debate. Ames Courtroom, Harvard Law School, Cambridge, MA. 1 OCT. 2000. Archive available online -.
OpenDVD.org Journalist's Fact Sheet OpenDVD.org 5 MAY 2000. 21 JAN 2001 .
Eric Corley. DVD Encryption Cracked 2600: The Hacker Quarterly 12 NOV 1999. 21 JAN 2001 .
Dr. Harold Abelson, et al. Amici Curiae Brief in Universal City Studios, Inc., et al v. Eric Corley a/k/a "Emmanuel Goldstein" and 2600 Enterprises, Inc., et al. On Appeal from United States District Court, Southern District of New York.