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DMCA Seen Denying Free Speech Rights in Cyberspace

Two court decisions considered victories for the film and music industries could deny U.S. citizens the same free speech rights in cyberspace that they have in the real world, according to copyright experts and civil rights activists.

A federal appeals court in New York last week ruled that the controversial 1998 Digital Millennium Copyright Act – which bars creating or distributing technology that can be used to circumvent copyright protections – does not infringe on First Amendment free speech protections of the U.S. Constitution.

The court barred Eric Corley, publisher of hacker Web site 2600 magazine, from posting or linking to sites that post software used to descramble antipiracy protections in digital video discs.

Separately, a New Jersey federal court dismissed a lawsuit brought on behalf of Princeton University researcher Edward Felten and others who said they were pressured by the recording music industry not to publish their research on flaws in technology designed to prevent pirating of digital music.

“The most frightening thing about this (New York) decision is that our speech in cyberspace is treated differently under the law than our speech in the real world,” Cindy Cohn, legal director of the San Francisco-based Electronic Frontier Foundation, said on Friday.


While a previous court has established that software, or programming code, is pure speech, the New York judges said the DeCSS, for Decoding Content Scramble System, is more of a functional tool, like a skeleton key, than it is content or speech.

Software straddles the line between content and speech because it both relays information and executes commands, the lawyers said.

“With code, describing how to do something comes close to doing it,” said Mike Godwin, a policy fellow at the Washington, D.C.-based Center for Democracy and Technology. “Where is the line drawn between speech and action?”

“They’ve created a new ghetto in the First Amendment for speech that can function. All computer programs function,” Cohn added.

The judges also stripped away so-called “fair use” rights from the Internet, meaning people who are allowed to make copies of tangible copyrighted material for personal and educational use can’t do the same in the digital world, the lawyers said.

Fair use balances the competing interests of individuals and copyright owners, said Jonathan Band, an attorney at Morrison & Foerster in Washington, D.C.

“The thrust is that we’re dealing with the digital age and it’s a dark and dangerous world out there on the Internet so we really have to be very protective of copyrights, and if that means you lose user privileges, then so be it,” Band said.


Attorneys for copyright owners argue that even offline free speech rights are subject to limitations, citing libel as one example.

“Of course software can be speech on occasion, but that doesn’t mean when it’s used to commit a crime it’s not actionable,” said Charles Sims of Proskauer Rose in New York, who represented the movie studios in the New York lawsuit.

“The court is saying, in effect, that the rules should not be different for cyberspace than they are for print, audio and visual material,” said Len Rubin of the Chicago firm of Gordon & Glickson.

The New York court concluded that the harm caused by allowing distribution of DeCSS outweighed any free speech rights the distributor may have. But questions remain about the legality of legitimate research on technologies designed to thwart unauthorized copying.

Felten was responding to a challenge by the Recording Industry Association of America to crack software created to prevent copying of digital music when he was threatened with legal action, Cohn said.

The New Jersey judge dismissed the lawsuit, saying Felten would have to be sued before he would have a case. He had eventually published his research, but the uncertainty has prompted others to remove software from their Web sites and to move scientific conferences outside the U.S., Cohn said.

Sims denied that the DMCA was hurting research.

“The DMCA simply prohibits the distribution to the public of decryption utilities,” Sims said. “It’s the difference between writing about gun control and handing someone a gun.”

Cohn said there was a “strong possibility” the Felten case would be appealed, but wasn’t so sure about the Corley case.

It took 40 years for the courts to rule that motion pictures are speech, Cohn noted. “We’re in this for the long haul.”

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