The Tension Between Free Speech and Copyright

By Stan Morris

Background of the DVD Case

The ease of putting material on the Internet has generated a great number of legal stresses, including conflicts between intellectual property law and the First Amendment. A recent case brought by Universal Studios against a hacker illustrates these conflicts.

In August 2000, a judge decided the case commonly known as "Universal Studios v. Eric Corley a/k/a Emmanuel Goldstein." Corley is the publisher of a magazine devoted to computer and Internet issues called "2600 Quarterly." He also manages 2600.com, a web site dedicated to the same subjects.

The conflict arose as the plaintiffs, who own copyright interests in motion pictures, attempted to protect their investment in movies and other entertainment placed on DVD. A technology known as Contents Scramble System (CSS) was designed to prevent DVDs from being copied.

Against this effort, a Norwegian 16-year-old, Jon Johansen, posted the Decrypted Content Scrambling System (DeCSS), on the Internet arguably to enable DVDs to be played on the Linux operating system. DeCSS spread very rapidly throughout the Internet both for entertainment and for study as a part of the operating system. Because of Johansen's age and nationality, it was almost impossible for U.S. producers of content to stop the spread of DeCSS at its source.

Congress sought to prohibit circumvention of security systems such as CSS by enacting Section1201 of the Copyright Act. That section of the law prohibits descrambling or breaking into encryption either by writing code or by building or marketing a device to do the descrambling.

The DeCSS lawsuit started against numerous defendants but eventually by the winnowing process of discovery and negotiation, the main defendant ended up being Corley. He had re-published DeCSS on his magazine and web site. One of his primary defenses was that he has a right under the First Amendment to publish the computer code.

Computer Code as "Speech"

Computer code has been determined to be expressive speech. In the case of Junger v. Daley, the chief judge of the Sixth U.S. Circuit Court of Appeals said, "Because computer source code is an expressive means for the communication of information and ideas about computer programming, we hold that it is protected by the First Amendment."

In Reno v. ACLU in 1997, the U.S. Supreme Court recognized that expression sent over the Internet is protected speech.

In light of these rulings, Corley argued that preventing his magazine and web site from publishing the DeCSS would be a prior restraint prohibited by those constitutional rights that publishers of other materials are entitled to exercise. Prior restraint -- that is, prohibiting publication in any form, prior to publication -- is rarely used except for extreme cases of national security (as in the case against Progressive magazine when it attempted to publish the details of a working hydrogen bomb. In that case when the FBI found out about the proposed publication, they confiscated all materials relating to the subject). Prior restraint has been regularly debated and clarified in U.S. Supreme Court cases since the 1930s and in one case Justice William Brennan stated that prior restraints are permissible only in time of war or other grave national crises.

Corley's lawyers argued that he was a member of the press and therefore the court should not prevent him from publishing DeCSS because more mainstream publications such as the New York Times and the San Jose Mercury News published similar articles. In all fairness, it should be pointed out that the trial court did not expand its injunction until Corley went further and published code or encouraged others to publish mirror sites. That ruling prohibited linking to other sites and indicating that linking with 2600.com was proscribed if it led to further publication of DeCSS. The 2600 quarterly and its web site were enjoined from publishing anything that further explains how DeCSS works or that prints it out. However, others are probably printing it out because the genie is out of the bottle.

Corley further argued that the restrictions placed on publication by the Copyright Act were unconstitutionally vague. A plaintiff asserting a right under the First Amendment must show a "compelling interest" in regulation that is then subjected to "strict scrutiny" by the courts. The thrust of that argument is that a person engaged in the protected speech must be able to tell in advance what is proscribed, and if called to task, may defend himself on the premise that the inexact language of the statute makes it unreasonably difficult.

The judge did rule that the computer code was expressive speech. However, he added that DeCSS enabled anyone with even a basic understanding of computer programming to figure out a way around the protections on copyright-protected material, and therefore, DeCSS was subject to greater restrictions. Some complained that the judge had ruled against reverse engineering to determine source codes.

Another issue considered within the reach of the First Amendment protection is the concept of fair use, the right of an author or researcher to study material, for the purpose of advancing knowledge and what the Constitution describes as "the useful arts." Free expression and copyright are often in direct conflict. The doctrine of fair use, set out in the Copyright Act, is a list of rules that must be individually applied to each circumstance. The trial court decided that DeCSS did not fit within the definitional rules.

Impact on Future Cases

Perhaps the judge's ruling is best summed up in his admonition to the defendants that if their problem was with the statutes, then the place to go was not to the courts but to Congress. The Electronic Frontier Foundation, which provided the defense in this trial, has appealed the case.

There are many facets to the tension between the First Amendment and copyright law. One not mentioned by the defendants in this case and hardly touched on by the other participants, is the attitude of some Internet users and certainly some DVD owners that much of what can be had for free should be had for free.

An article in Linux World carried the title, "Napster and DeCSS: Is it about free speech or free stuff?" That title alone suggests the author has hit on one of the central problems of the Internet: It has greatly facilitated the copying and distribution of intellectual property. It challenges us to find new ways to deal with the problems such as those the federal court had to deal with in Universal Studios v. Corley. Those who seek restrictions will be disappointed, and those who seek free stuff will soon find producers unwilling to work for free and will discover new ways to restrict access to their products.

Stan Morris is a trial and appellate attorney with significant experience arguing, researching and writing on a wide range of constitutional and other legal issues. Based in Cortez, Colorado, Mr. Morris is also a skilled presenter on free speech and communication media. For more information, please e-mail him at [email protected]

This article appeared on www.GigaLaw.com and was reprinted with permission from the author. Visit GigaLaw.com for "legal information for Internet and technology professionals, Internet entrepreneurs and the lawyers who serve them."

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