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Eight motion picture studios are suing Eric Corley, aka Emmanuel Goldstein, editor of 2600, because 2600 published the source code for a program known as DeCSS. DeCSS decrypts the "Contents Scramble System" (CSS) that is used to protect movies on DVD disks from copying and other unauthorized use.
2600 didn't create DeCSS. The decryption program was the result of a collaborative effort by three European programmers. The immediate impetus for their work was that fact that the Linux system, as an open source system, did not include software that enabled people to play back DVD disks on Linux machines. (Open Source and secret coding schemes don't mix. If you know the encryption scheme and the key, then you have access to the content.) So, the trio figured out how CSS worked and cracked the key used to encrypt DVD content, then built a software device that enabled them to watch movies on their Linux computers. In keeping with Linux practice, they released their code to the broader Linux community. 2600 published the released code.
How can someone be sued for publishing open source code? The catch is that, in this case, the source code circumvents a copy protection scheme used to restrict access to copyrighted works. In 1998, Congress passed a sweeping, ambitious piece of legislation called the "Digital Millennium Copyright Act" (DMCA). Among the provisions of the DMCA is one that makes it illegal to
manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.
In other words, the DMCA is an attempt to solve the problem that would otherwise vex the panel of Martian sages. Confronted by the fact that counting copies makes no sense in a digital world where the cost of making copies is negligible, the DMCA uses the force of the law to add substantial cost to the making of unauthorized copies when content is encrypted: Making copies can land you in jail.
Making code cracking illegal, as opposed to merely difficult, is a new twist in copyright law. It used to be that software lock builders and lock pickers competed in the technical and market arenas. For example, a decade ago, when companies created software locking schemes to protect the data on floppy disks from being copied, other companies created software to open the locks. Because making backup copies is an important, legitimate use of such unlocking software, the courts at that time ruled in favor of letting locking and unlocking technologies compete. But in the debate over the DMCA, companies that own copyrights were successful in convincing Congress that, without new legal protections, the world of digital media would make copyright ineffective and obsolete. So, providing products to unlock encrypted, copyrighted content became a criminal act.
Emmanuel Goldstein's and 2600's defense against the accusation that the magazine violated the DMCA is that the DMCA is a bad law. They contend that the DMCA abridges freedom of speech and that it interferes with important aspects of "fair use." Their defense is a difficult one and, so far, has not been successful: The District Court judge ruled unambiguously in favor of the studios. The primary difficulty is that Congress' intent in the DMCA is clear, and Goldstein and his magazine have clearly violated it. Deciding to rule against Congress is not something that a court takes on lightly, particularly at the lower court level.
The questions that Goldstein and 2600 raise about fair use are important. "Fair use" is a Congressionally specified limitation on the rights of copyright owners. Specifically, the fair use provisions of copyright law state that reproduction "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The idea here is that, since the goal of copyright is to promote progress, people need to be able to make use of the copyrighted works. Otherwise, copyright is just a protection for authors and publishers and not of any broader use to the general public.
For a number of technical legal reasons, it is difficult for Goldstein to use fair use as a defense in his own case, but the issues that he raises are interesting because of what they reveal about the way that control and use of content changes in a digital world. In the paper-based world of information, fair use works together with another limitation on the copyright holder's rights known as the "first sale" rule. If I deliver content to you on paper, you actually get to take ownership of the physical copy. So, although the rights to the content are mine, the physical copy is yours. You can read it as many times as you like, can comment on it and critique it, you can cut it into pieces to make a collage, you can burn it, you can send it to a friend, you can sell the physical copy to someone else.
Your situation is potentially more limited if I deliver the content electronically. You need some kind of software to serve as a "reader" so that you can turn the digital content into something you can see and use. If I deliver my content as a web page, email, or in some other form that can be interpreted by commonly available readers, then there are not many constraints on your use of the content. But, on the other hand, if I require the use of a specialized reader, I can use that piece of software to place strong constraints on your use. I could, for example, create a reader that keeps track of when and how often you use the content, sending a record back to me. I could tie reading to a system pay-per-view charges. I could restrict the reader so that it will not print the content to paper or allow you to make digital excerpts. I could build the reader so that your access to the work expires after some fixed amount of time or number of uses.
In short, specialized readers allow copyright owners to control not just distribution of content, but also how it is used, in detail. This is new. It extends the control of the publisher from the content itself to also include the process of how the information is used.
Goldstein's point -- an accurate one even if not immediately relevant to his defense -- is that the DMCA locks this control in place. If I provide an intrusive, expensive, restricted viewer for my encrypted content, the market might normally correct my desire to assert such enormous control because I would be opening an obvious business opportunity for someone who could produce a less restrictive, alternative reader. The DMCA outlaws such market activity. It guarantees that I, as copyright owner, get to decide in great detail how you will use my content. And I get to put would-be competitors in jail.
Returning to the problem posed to the panel of Martians, it is clear that Congress is making heroic efforts to shore up the concept of protecting copies and that, not surprisingly, these extreme exertions are having side effects, most notably in the direction of changing fundamental notions of ownership and use of intellectual property. But the reason for putting Martians on the panel is that they might have a broader perspective, up above the clouds, unencumbered by attachment to copyright and other older ways of doing things. What might they recommend?
They might start with the facts as they find them:
This last point contains the seeds of a new solution to the problem, since it means that there is an additional control point beyond the release of copies of content into a distribution channel. With information on paper, once you publish and distribute something, it is gone -- beyond control except through copyright and infringement lawsuits. For digital information there is the potential for control at the point of use. The DMCA takes this control beyond the reach of market forces -- a bad idea -- but even without the DMCA the potential to focus on use rather than on copies opens attractive approaches to providing an alternative to the copyright controls that were used for physical publications.
All of this suggests a shift in focus from copyright and copy control -- the traditional way of providing limited monopolies to authors and publishers -- to licensing of rights to use information. Software, of course, already uses licensing, as opposed to sale of copies, as the preferred compensation scheme. Applied to Napster, this might take the form of a monthly fee to access digital recordings, perhaps scaled to volume of use. Applied to research and reference work, this might take the form of licensing fees to extract, quote or otherwise reuse information -- a new startup called Ebrary is hoping to build on just such a model.
There are, at present, problems and dangers associated with licensing models for content use. Because Congress is still stuck on the old, dated model of controlling copies, it has not taken any steps toward a common framework that might constrain the reach of licensing agreements for published works. Consequently, licensing agreements can contain terms, such as restrictions on criticism or public comment on a work, that are inconsistent with the broader objective of promoting "progress of science and useful arts." There is important work to do here, but getting to it requires that Congress first takes a broader view of the problem than it has to date. It needs that panel of Martians.
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