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THE HACKER UTOPIA VERSUS THE COPYRIGHT LAW: Even If Information Wants To Be Free, Should We Let It?

Thursday, Feb. 01, 2001

There is an ideological war being waged in the courts on copyright issues. The war is a fascinating cultural phenomenon, arising from twentieth century — and now, twenty-first century — technological advances. On one side are the colorful "hackers," the counterculturists who first discovered the joys of computing. On the other side are the industries that profit from copyrights —which include such behemoths as the recording, publishing, and film industries.

Hacker Philosophy Is Showing Up in Legal Briefs and Arguments

This sort of countercultural movement is normally the focus for social scientists, a passing human interest story. Rarely does it seep into the mainstream legal processes. The hackers have had more success.

The motto "Information wants to be free" and the utopian vision of a shared, free Internet-driven world has had sufficient popular appeal to persuade at least 18-year-olds that it is legitimate to download music and movies without paying for them, a la, Napster, and DeCSS. Indeed, Napster appears to have been built on this philosophy — and its large numbers of users indicate that the ideology cannot be confined to 18-year-olds after all.

The industries that are built on the enforcement of copyright are now bringing their legal claims to the courts. There, the hacker philosophy is being aired by highly respectable attorneys, hired by the copyright industries' adversaries.

For example, in a case involving a challenge to the downloading of DVD motion pictures, the court acknowledged the two sides of the debate quite explicitly:

Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure.

Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era

The only term the court left out was "hacker," but the identification of the "movement" is sufficiently clear.

The hackers lost, but the really important question here is why courts give any credence to this claim for free information at all. It has long been the position of the United States Supreme Court that federal copyright law is a creature of Congress — positive law — and that, therefore, changes to copyright law in the face of new technology must be enacted through legislation, not activist courts.

The First Amendment versus the Free Information Movement

The answer is that there is a false resonance between the claim that "information wants to be free" and existing First Amendment values.

The First Amendment cases have recognized the importance of a robust, wide-open marketplace of ideas to a free society. In the context of the First Amendment cases—all involving government attempts to suppress or regulate speech—this is a very important norm. But it has never been an absolute norm, and it is certainly not absolute when the situation does not involve the government's suppressing expression for purposes of censorship, but rather involves an individual misappropriating copyrighted information. Put simply, the fact that the government cannot tell you not to play your music in a public park does not authorize you to use Napster.

Nevertheless, the First Amendment world-view has been used as a license to take and keep, without payment, whatever information one can find. In essence, this is the same phenomenon as an eight-year-old's claim to a right to unfettered, free expression at the dinner table—an expansion of free speech principles well beyond the proper constitutional context.

Viewing a Complex Constitutional Information Regime Reductively

The hacker culture papers over the fact that the United States has a longstanding, complicated information jurisprudence that requires some information to be free but permits a great deal to be secret and/or proprietary.

The Constitution mandates that the federal government make certain information available to the people, including a journal of Congress's proceedings (now the Congressional Record) and the state of the union address by the President. But it also explicitly permits Congress to secure to authors the "exclusive rights" over their creative works for a "limited time" and for the purpose of furthering the public good. This is a guarantee to authors of a right to bar others from copying their works — in essence, a private right to censor redundancy. It also allows authors never to publish or re-publish their works at all, if that is their preference. The Constitution also has been read to permit secrecy in many circumstances, including those of trade secrets, national security, and private, personal information.

The hackers would turn this complicated jurisprudence into a single, seductive rule of information freedom — thereby destroying the balance struck by the Constitution between the people, their government, and the marketplace.

For the hacker culture to succeed, it must overcome these constitutional principles (not to mention the thriving industries that have grown by abiding by them). The only way to do that would be through constitutional amendment coupled to congressional repeal of copyright law. Countercultures have succeeded in getting the Constitution amended in the past, but never with little more than mottoes and ideology.

Marci A. Hamilton, a FindLaw columnist, is visiting professor of law at NYU. Her e-mail address is

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