Scholars Rally to Online Magazine's Defense Over Publishing Software Code

By Andrea L. Foster
Chronicle of Higher Education

February 16, 2001

A judge's decision to stop an online magazine from publishing a software code that decrypts digital data has angered many in academe. A diverse group of law professors, computer scientists, and library groups filed court documents last month in support of the publisher, arguing that the judge's ruling violates the First Amendment and stifles scientific research.

At issue is whether the software code is protected free speech or is restricted speech because of its potential to violate copyright law. The plaintiffs -- eight movie studios, led by Universal City Studios Inc. -- argue that publishing the code is illegal. Eric Corley, publisher of the magazine and a defendant in the case, says he is exercising his First Amendment rights. His online magazine, 2600.com, is adapted from a printed version, 2600: The Hacker Quarterly, which is owned by 2600 Enterprises Inc., of Middle Island, N.Y.

Federal District Judge Lewis A. Kaplan ruled in August in favor of the movie industry and ordered Mr. Corley to halt the dissemination of the decoding program on 2600.com. The program, DeCSS, unlocks a data-scrambling system known as CSS that is designed to thwart widespread copying of DVD's. The judge also ordered Mr. Corley's codefendants, Shawn C. Reimerdes and Roman Kazan, to stop publishing the decoding program on each of their Web sites.

Judge Kaplan ruled that the Digital Millennium Copyright Act prohibits the distribution of software designed to circumvent copyright protections. Charles S. Sims, a New York lawyer representing the movie industry, said the judge was simply enforcing the act, and compared DeCSS to an illegal burglary tool whose sole function was to aid property theft.

Mr. Corley is challenging that ruling before the U.S. Court of Appeals for the Second Circuit. In a supporting brief, 17 computer scientists liken computer source code to other forms of creative expression that deserve full First Amendment protection, like cake recipes or music scores.

David S. Touretzky, a computational neuroscientist at Carnegie Mellon University, says he worries that if the movie industry prevails, his own Web site would be illegal. His site, in an attempt to mock Judge Kaplan's ruling, posts encryption-breaking software codes.

"That people think they can restrain my speech because I communicate in computer code offends me to no end," he says.

Edward W. Felten, an associate professor of computer science at Princeton University, says the outcome of the appeal will determine whether he and colleagues from other universities can reveal, in published accounts, how they unscrambled encryption that limits access to digital music. Lawyers for the universities involved in the research have delayed publication of such material out of concern that it may violate the digital-copyright act.

"Science is a collaborative process, and if you can't publish, you're effectively not allowed to do science," Mr. Felten says.

A group of 47 law professors with expertise in copyright law and intellectual property filed another brief, arguing that Congress unconstitutionally overreached its authority in enacting the anticircumvention provisions of the digital-copyright act.

"This law won't promote progress, it will stifle it," says Julie E. Cohen, a professor at the Georgetown University Law Center who drafted the brief. "It's bad for creativity, and it serves the goals of some powerful industries. They're so afraid of piracy that they seem to be taking the position that everyone is a pirate."

Still another brief was filed by two law professors who specialize in cyberspace matters, Yochai Benkler, of the New York University School of Law, and Lawrence Lessig, of the Stanford University Law School. They argue that the anticircumvention provisions of the digital-copyright act eliminate fair use and thus radically depart from copyright law. Fair use allows scholars, journalists, and artists to copy excerpts from copyrighted works. The Association of Research Libraries and the American Library Association made a similar argument in a brief they filed jointly with the American Civil Liberties Union.

Legal experts anticipate that whichever side loses on appeal will petition the U.S. Supreme Court to take up the case, which touches on the larger question of how far the courts should go to protect copyrighted material over the Internet. Increasingly, Internet users are sharing music and movies via Napster, a file-sharing service, and other technologies, to the chagrin of the entertainment industry.

Despite Judge Kaplan's ruling, free-speech advocates have recently scored at least one legal victory in their efforts to publish computer code. In Junger v. Daley, the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, ruled in April that computer source code is protected by the First Amendment. Unlike the Corley suit, though, that case concerned the effect of export regulations -- not copyright laws -- on free speech.

Meanwhile, other legal challenges to the publication of DeCSS are pending, including a case in Connecticut brought by the movie industry against a Web-site operator, and another in California brought by the DVD Copy Control Association against 72 Web-site operators.

Mr. Sims, the lawyer representing the movie industry, says the scholars filing briefs in support of Mr. Corley "represent a small extremist wing of the academic community." He adds: "There's a group of anti-copyright professors who opposed the [Digital Millennium Copyright Act] the day it was created. They are still attempting to oppose it, and they won't succeed."

One professor who has not sided with Mr. Corley is Michael I. Shamos, a computer-science professor and codirector of the Institute for eCommerce at Carnegie Mellon. He testified last July, on behalf of the movie industry, that DeCSS could lead to widespread copying of movies, just as Napster is used for the distribution of music.