2 Scholars Face Off in Copyright Clash
Should we protect intellectual property by limiting the discussion of decryption research?
By Andrea L. Foster
Chronicle of Higher Education
Pittsburgh - August 10, 2001 - Amid the clutter of David S. Touretzky's office at Carnegie Mellon University is a T-shirt that brings a smile to his face. It features a computer code used to unlock digitally encrypted DVD movies. That's not why he likes it -- he hasn't tried to watch movies without paying for them. Rather, Mr. Touretzky, 42, believes that scholars need to be able to dissect and discuss such codes for the good of science.
"You can't stop people from speaking the truth, even if you don't like the consequences," the computational neuroscientist says.
Michael I. Shamos, another Carnegie Mellon computer scientist, works a few hundred yards from Mr. Touretzky. He taught Mr. Touretzky when he was an undergraduate two decades ago and respects his scholarly work. But like many intellectual-property lawyers, Mr. Shamos, who is 54, believes that disseminating decryption code encourages the copying of DVD movies, hindering electronic commerce.
"If the effect of what you do is to wreak destruction, then maybe you ought to consider twice before you do it," he says.
Debate is raging in academe and in the courts about how far to limit scholarship to accommodate copyright owners, and nowhere is the situation starker than at Carnegie Mellon, where these two stars of the university's computer-science department have played leading roles in opposite sides of the legal and policy dispute. Their clash spotlights how the Digital Millennium Copyright Act has galvanized First Amendment-focused computer scientists, led by young professors, to take on industry-focused intellectual-property lawyers.
The two sides may soon square off in a federal courtroom in New Jersey, if Judge Garrett E. Brown Jr. decides to take up a lawsuit filed by another rebel computer scientist, Edward W. Felten of Princeton University. Mr. Felten, 38, asked the judge for permission to discuss, at a conference this month, his research into removing a safeguard, or watermark from digital music. The watermark aims to prevent hackers from pirating copies of the music. The Recording Industry Association of America warned Mr. Felten in April that federal authorities could take "enforcement action" against him if he discussed weaknesses in the watermark.
The heart of the digital-copyright act, which updated copyright law to encourage electronic commerce, is Section 1201, the anti-circumvention provision. It makes it a crime to bypass an encryption device that limits access to copyrighted material, or to distribute decryption technology.
In June, sounding more conciliatory, a lawyer for the recording association wrote Judge Brown and told him that he should dismiss Mr. Felten's lawsuit. He said the association does not plan to sue the professor over his talk this month at a computer-security conference in Washington.
That leaves the professor free to discuss his research. But Mr. Felten still wants the judge to rule on the larger question of whether the digital-copyright law violates the First Amendment. Many scholars of the First Amendment and copyright law say the digital law is unconstitutional, and hope a judge will strike it down.
Such a decision would be celebrated by computer-security scientists as well as by many people in academe, who argue that the anti-circumvention provision prevents "fair use" of copyrighted material. Fair use allows, for example, professors to excerpt a passage from a book or screenplay and circulate it among students without paying the copyright owner a fee.
"I think the law is Draconian," says Eric B. Easton, an associate professor at the University of Baltimore School of Law. "For us in academe that rely on fair use, it's a horrifying prospect that all of the material we use will have walls around it, and if we try to break through, we're criminals."
Mr. Touretzky shares this concern. He has become something of a celebrity among opponents of the digital-copyright law, largely because of his Web site that pokes fun at a federal judge's preliminary injunction in another legal battleground for the digital-copyright law, a case known as University City Studios, Inc. v. Eric Corley. In it, eight movie studios accused Mr. Corley, a computer hacker and magazine publisher, of violating the law by publishing DeCSS, a computer program that circumvents the Content Scrambling System, which protects DVD movies from unauthorized copying.
U.S. District Judge Lewis A. Kaplan ruled in favor of the studios in August 2000, and the decision is now being challenged before the U.S. Court of Appeals for the Second Circuit in New York City.
Seventeen computer scientists from leading institutions, including Mr. Felten and Mr. Touretzky, signed a legal brief in support of Mr. Corley, and Mr. Touretzky was among those testifying on Mr. Corley's behalf.
James Morris, dean of Carnegie Mellon's computer-science division, was one of the seventeen who signed the brief.
"I believe we're living in an era when intellectual property rights are given too much sway," he says.
But Mr. Touretzky went a step further with his Web site (http://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html). The site mocks Judge Kaplan for singling out for suppression a decryption algorithm that can be executed by a computer. It displays the algorithm in other contexts: English prose, expressed as a prime number, and on a T-shirt (the one in his office).
"There's no clear line between any of these forms of code," Mr. Touretzky says. Any computer scientist, he says, can convert the data into a computer program that can unscramble encrypted code. "If you want to stop people getting this knowledge, you have to stop all discussion of it."
Mr. Touretzky later made this argument before Judge Kaplan, and even though the professor didn't completely win over the judge, he persuaded him of the expressive nature of computer code.
In his decision, the judge thanked Mr. Touretzky for showing that computer code "conveys the same idea as various other modes of expression, including spoken-language descriptions of the algorithm embodied in the code."
Mr. Touretzky was not compensated for his testimony.
Aside from faulting the copyright law for restricting research and speech, Mr. Touretzky believes it is anti-consumer. He rails against the movie industry for dictating the terms under which people watch DVD movies. For example, consumers aren't allowed to view DVD's on the Linux operating system, are prevented from viewing them in a part of the world different from where they were purchased, and cannot fast-forward over commercials.
"If I don't want to watch the commercial, I shouldn't have to," says Mr. Touretzky. "But their code forces me to watch their commercials."
He and other computer scientists, including Geoffrey H. Kuenning, an assistant professor at Harvey Mudd College, say the entertainment industry's argument that encryption is designed to deter unauthorized copying is insincere. The encryption code allows DVD's to be viewed only on DVD players and other hardware that prevents copying of movies. But DeCSS breaks the encryption and allows consumers to view the movies on unlicensed players that permit copying. Still, decryption isn't the only technology that enables copying of DVD's.
"If you want to pirate DVD's, all you have to do is buy one, stick it in the digital equivalent of a copying machine, and no one out there can prevent you from doing that," says Mr. Kuenning. What the studios really want, he says, "is complete control" over how and where consumers watch movies.
If Mr. Touretzky is a hero to many computer scientists, Mr. Shamos is something of a pariah. As a former software entrepreneur and an intellectual-property lawyer, he has testified in court on behalf of movie studios' efforts to protect their copyrights.
"I always want to be on the right side of the case, and I always want to be on the winning side," Mr. Shamos says.
Mr. Shamos says Mr. Touretzky and other code breakers have a penchant for notoriety and likens them to Robin Hood -- "stealing from the rich and giving to the poor." Mr. Shamos is co-director of the Institute for eCommerce at Carnegie Mellon, and teaches courses on Internet law and regulation and electronic commerce.
Earlier in his career he even taught a class on analysis of algorithms that Mr. Touretzky, who was then a Carnegie Mellon student, attended. ("Mr. Shamos is an excellent lecturer," says Mr. Touretzky.)
About 20 years ago, Mr. Shamos was embroiled in a dispute with Carnegie Mellon administrators over the intellectual-property rights to Scribe, a computer program that typesets text and footnotes -- a precursor to desktop-publishing programs. A former Carnegie Mellon student developed Scribe, and in 1979 Mr. Shamos founded Unilogic Ltd. to market the program. His tussle with the administration was settled out of court, and the university conceded it had no claim to Scribe.
Mr. Shamos says Mr. Touretzky and other opponents of the digital-copyright act are using the First Amendment as their defense only because it is the most legally persuasive argument. "You have to give the mantle of some credible legal argument, and so that's what they tried out for," Mr. Shamos says. Also working in favor of the crusading scientists is the fact that the Supreme Court has a "tremendous appetite" for First Amendment cases, he says.
Free speech has always been restricted for special cases, Mr. Shamos notes. People can't yell "fire" in a crowded theater, they can't give out the password to someone's bank account, they can't publish the recipe for a nuclear weapon, and they shouldn't be able to publish decryption code, he says. The stakes are too high, he adds: An entire industry could be crippled.
"Academics don't have universal freedom to study whatever the hell they please," he says.
According to Mr. Shamos, scientists can still discuss security measures and their vulnerabilities without providing a blueprint for unlocking encryption code.
Like Mr. Touretzky, Mr. Shamos testified in the Corley case, but on the side of the movie studios. He told Judge Kaplan that he could successfully decrypt a DVD movie, Sleepless in Seattle, using links provided on Mr. Corley's Web site. Through an Internet chat room he then found someone who swapped him a digital copy of The Matrix for his copy of Sleepless in Seattle.
Mr. Shamos acknowledges that decrypting and downloading DVD movies is cumbersome. Nonetheless, of the 6,000 DVD movies that the studios produced last year, 5,000 of them have been pirated, he says.
Mr. Shamos earned $30,000 from the Motion Picture Association of America for the time he spent conducting the experiment and for testifying in court.
Someone -- he won't say who -- called him a "disgrace to the profession of computer science."
Academics who share Mr. Shamos's views are difficult to find. One is Seth Copen Goldstein, 39, another Carnegie Mellon computer scientist. "Computer code is not speech because it does something. It's an artifact. It's closer to a machine than it is a poem," he says.
Another academic who supports the digital-copyright law is Trotter Hardy, an associate dean of technology and a professor at William and Mary School of Law -- and, like Mr. Shamos, an entrepreneur who struggles to maintain rights to intellectual property that his college wouldn't itself mind owning. Mr. Hardy, 56, developed and owns DATES!, a commercial Web-based schedule planner. He says the anti-circumvention provision is an important incentive for developing new technologies.
Mr. Hardy isn't surprised that many of his colleagues consider his views heretical.
"Academics make a living from free speech. They don't make a living from copyrights, and they don't sell copyrighted works," he says. "They use them, quote them, pass them around, and use them in publishing their research."
Meanwhile, at Carnegie Mellon and elsewhere, the debate over the digital-copyright law has taken on a new urgency. Dmitri Sklyarov, a Russian graduate student, was detained last month in Las Vegas for bypassing security mechanisms in Adobe software. Lawyers for the Justice Department charged Mr. Sklyarov with violating the copyright law's anti-circumvention provision.
Mr. Touretzky is rallying support for the Russian student through his recently established Web site, the Gallery of Adobe Remedies. It highlights security lapses in the company's software (http://www.cs.cmu.edu/~dst/Adobe/Gallery).
Other computer-science students have been helping to organize protests across the country in support of releasing Mr. Sklyarov from prison.
On the side of those who want strong copyright protections, Mr. Shamos is condemning Mr. Sklyarov for distributing copies of software that decrypts e-books.
"By making a public revelation, he did the typical hacker thing, which is to destroy technological protection under the guise of scientific research."