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Thursday, Dec. 13, 2001

Near the end of November, the Second Circuit Court of Appeals issued a significant opinion interpreting the Digital Music Copyright Act (DMCA), in the case of Universal City Studios v. Corley. Specifically, the court held that the DMCA prohibited Eric Corley, the publisher of 2600:The Hacker Quarterly, and his website from posting, or even linking to, the code for DeCSS. (DeCSS - Decode Content Scrambling System - decrypts the protections that would otherwise prevent users from copying and distributing DVD movies.)

At first glance, it might seem that the Universal City Studios case only recapitulates a familiar clash between copyright law, on the one hand, and the First Amendment and fair use doctrines, on the other. It is a clash that we have twice seen enacted recently - in the prosecution of Russian programmer Dmitry Sklyarov, and the civil action involving Napster.

But in at least one sense, the Second Circuit's opinion in Universal City Studios v Corley is more troubling than either of these two cases. That is because it puts journalists, and others who seek not to sell hacking software, but only to comment upon it, in direct jeopardy.

Third Battleground, Same War?

To see why the DeCSS opinion goes further than the Napster opinions, or even the decision to prosecute Sklyarov, in encroaching upon our First Amendment rights, it is important to understand the basic similarity between the three cases - and the way in which the same basic battle is being fought in all three.

The battle begins like this: A technology is invented that makes it easier for computer users to infringe copyrights if they so choose. However, the technology also has other uses, which are either properly licensed uses or "fair uses" - that is, uses that according to copyright law are legal even if they are not licensed by the copyright holder.

For instance, Napster could be used by strangers to swap copyrighted material online without permission, but it also had a properly licensed use: to distribute new artists' work with their permission. Similarly, the software Sklyarov designed allowed copies of eBooks to be illicitly sold without permission online, but also allowed a "fair use" in which the purchaser could copy the eBook onto different computers for his own convenience, merely making the eBook as portable as a regular paperback.

Finally, while DeCSS allows the DVD purchaser to copy and distribute a movie online without permission, it, too, has "fair uses." One is to allow a DVD purchaser to view a DVD movie on a computer, without having to purchase a DVD player first. Another - as the ACLU pointed out in its friend-of-the court brief - is, for example, to allow a film student to copy a ten-minute segment of a two-hour movie for a class project in which the movie is analyzed. (Limited segments of a work also can traditionally be legally excerpted for insertion in critical commentary such as a review.)

Then comes the crackdown. Napster faces harsh district court rulings (rulings so harsh, indeed, that some were rolled back on appeal) and is suspended from use. Sklyarov is charged, jailed, and bailed, pursuant to the DMCA - even though Adobe, the company whose software he cracked, does not support the charges against him. And, in last month's ruling, the Court of Appeals upholds an injunction against Corley or his site's posting or linking to DeCSS, also pursuant to the DMCA.

The denouement? In each of the three cases, copyright wins the day, and little attention is paid by the court or prosecutor to the First Amendment, traditional fair use, or the striking vagueness and overbreadth of the DMCA.

Allowing Journalists to Be Sued For Commentary - And Merely For Linking!

Should we then yawn at the news of the DeCSS opinion - responding, in essence, "I've seen this movie twice before"? Not at all. Without at all minimizing the injustice of jailing Sklyarov, it is nevertheless fair to say that the DeCSS opinion trenches even further upon First Amendment and fair use concerns than the Napster and Sklyarov cases, for several reasons.

First of all, Corley, the defendant, is an established, albeit fringe, journalist who has been publishing his magazine since 1984. He is not a creator and seller of software that reverses copyright protections, like Sklyarov's company. Nor is he a creator and disseminator of technology that allows copyright violation, like Napster.

Rather, Corley is a commentator who not only covers issues of interest to hackers but also, the court admitted, "issues of general interest to computer users - such as threats to online privacy." In short, Corley's site is akin to Wired, or to Writ, for that matter.

Second, as the court acknowledged, evidence indicated that Corley apparently posted and linked to the DeCSS code for illustrative purposes - not to facilitate hacking. Indeed, Corley testified, quite reasonably, that he had included the code in the article because "in a journalistic world ... you have to show your evidence" that there is in fact technology that circumvents the DVD movie protection system.

Posting a videotaped demonstration, in which a hacker showed that the code had succeeding in decrypting a particular DVD, would have created obvious issues of DMCA liability. Thus, posting (or at least linking to) the code itself was the closest Corley and his site could come to proving to users that what they claimed about the code was indeed correct.

Finally, it is important to note that Corley and his site were not presenting a first-time scoop and thus beginning the chain of uses of the DeCSS code - a chain that would inevitably include some uses less innocent than Corley's. Rather, Corley and his site were (just as I am now) acting as journalists providing commentary on already-disseminated code.

As the court itself acknowledged, the DeCSS cat was already well out of the bag when the defendants included it in their online article. The code was invented in September 1999 by Jon Johansen, a Norwegian teenager who posted it on his website.

By November 1999, when Corley's article appeared, the code was "widely available on the Internet." Literally "hundreds of web sites" had posted the code. And, as the court pointed out, their postings "ma[de] [the code] instantly available at the click of a mouse to any person in the world with access to the Internet, [who] can then instantly transmit DeCSS to anyone else with Internet access."

In short, the suit against Corley and his site created First Amendment harm by allowing a journalist to be sued for commentary. Yet it afforded little, if any, appreciable benefit in slowing the DeCSS code's dissemination.

The Need For A Journalists' Exception To the DMCA

How could this have happened? Part of the answer lies with the court. In making its decision, it did not interpret the First Amendment to provide strong enough protection for journalists.

Another part of the answer lies with the statute: The DMCA contains broad language that the court reasonably read to encompass Corley's and his site's posting of, and even linking to, the DeCSS code.

Last in the string of verbs describing the actions that the DMCA prohibits are the vague verbs "traffic" and "provide." These seem to have been the verbs used to go after Corley and his site.

After all, Corley and his site did not "manufacture" or "import" the code, nor did they "offer [it] to the public," at least in the commercial sense of that phrase. But they apparently nonetheless fell within the DMCA because they arguably "provided" or "trafficked" in it - in the loose sense of passing it along to others, or giving others ways to obtain it. (The code itself fell under the DMCA because the court believed its purpose was that of "circumventing a technological measure" - here, the DVD movie encryption system at issue.)

We should think long and hard about whether it makes sense, under the First Amendment, to make journalists liable for "trafficking" in code upon which they comment, or to which they link. In the past, we have used loose concepts of trafficking to go after drug dealers and those who make their living from stolen goods. Journalists, even those on the web, are a far cry from these malfeasors.

Unless Congress amends the DMCA to effectively reverse the Second Circuit's ruling, or the Supreme Court makes clear that the Second Circuit's ruling was in error, the DMCA will continue to substantially chill important speech.

That speech will include, ironically, some of the speech critical of the statute itself. For programming-savvy readers, this column would doubtless be strengthened if I could link to DeCSS - but with the sword of Universal City Studios over my head, I cannot take that risk. Unfortunately, when criticizing the application of the DMCA, it pays not to get too specific.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99. Her earlier columns on the Napster and Sklyarov cases can be found in the archive of her columns on this site.

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