Copyright decision to shape technology
By Declan McCullagh
Special to ZDNet
October 7, 2002, 5:24 AM PT
COMMENTARY--Anyone interested in the future direction of technology should pay attention to a case the U.S. Supreme Court will hear when the new session begins this week.
Technically, the oral arguments on Wednesday are about the fate of a federal law called the Copyright Term Extension Act, which extends the duration of all U.S. copyrights for 20 years.
A group of artists and moviemakers sued to overturn the law, saying they had hoped to make use of materials that were in the public domain--but found they no longer could because of the longer duration of each copyright. Championing their suit is a who's-who of law professors, led by Stanford University's Larry Lessig.
This case is not directly about technology. It's not even about topics that, compared with the sickly stock market or a war with Iraq, many people would find all that compelling. Few of us are legal academics, and almost nobody is directly affected by whether or not a book, song, or movie created in 1923 can be copied legally or not.
But what the Supreme Court decides in this case, Eldred v. Ashcroft, could create ripple effects that spread throughout the technology industry and shape what kind of software and hardware products are legal to create and sell.
Here's an example. Under the 1998 Digital Millennium Copyright Act (DMCA), it's illegal to sell software or hardware that could descramble DVDs, unlock copy-protected CDs, or strip the protection away from Adobe's eBooks. The DMCA has even been used to threaten programmers who write font-manipulation software and researchers who point out security flaws.
As I wrote in a recent column, the DMCA may not be as noxious as some of its detractors claim it is, but any law that would ban software that could be used for both good and bad purposes goes too far. (It would be as nutty as banning all handguns, which Washington, D.C. does, just because some miscreants may use them for ill purposes.) Unfortunately, all court challenges to the "anti-circumvention" sections of the DMCA have failed.
The Supreme Court's eventual decision in the copyright extension case, which will come sometime in the next eight months or so, could change this losing streak. If the judges choose--and this is hardly certain--they could hand down a ruling that dramatically limits the reach of copyright law.
"I think the best case scenario is for them to say the First Amendment is a serious limitation on copyright law so we have to look critically and not permissively at what Congress is doing," says Peter Jaszi, a professor at American University who sometimes teaches his copyright law class wearing a T-shirt protesting the copyright extension act. "Then we would know something important. And that would, for instance, breathe new life into the discredited or disrespected First Amendment arguments in the DMCA cases."
Jaszi says the Supreme Court could, if it chose, "bring back the notion that one has to measure congressional judgments about intellectual property policy by a higher-than-normal standard because of the First Amendment stakes. And that's something that the Second Circuit didn't do. That was a very deferential decision."
Jaszi is talking about a November 2001 decision by the Second Circuit Court of Appeals, which ruled 3-0 that it was illegal to distribute a DVD-unlocking program called DeCSS.exe. The Electronic Frontier Foundation repeatedly cited the First Amendment, saying that it should be considered along with the movie studios' arguments about copyright.
The judges didn't listen. They wrote: "The government's interest in preventing unauthorized access to encrypted copyrighted material is unquestionably substantial, and the regulation of DeCSS by the posting prohibition plainly serves that interest. Moreover, that interest is unrelated to the suppression of free expression. The injunction regulates the posting of DeCSS, regardless of whether DeCSS code contains any information comprehensible by human beings that would qualify as speech." (EFF chose not to appeal.)
In their legal briefs, Lessig and the other law professors correctly stress the importance of paying attention to both of these two vital parts of the U.S. Constitution: The copyright clause, which gives Congress the power to create copyright laws for a limited time, and the First Amendment, which prohibits Congress from curtailing speech or expression.
The Appeals Court didn't pay sufficient attention. This time, let's hope the justices do.
Declan McCullagh is the Washington correspondent for CNET News.com, chronicling the ever-busier intersection between technology and politics. Before that, he worked for several years as Washington bureau chief for Wired News. He has also worked as a reporter for The Netly News, Time magazine and HotWired.
