Viewpoint: Free speech rights for programmers

T he Digital Millennium Copyright Act (DMCA) was supposed to protect publishers from electronic piracy. Instead it's being used to curtail the speech of computer scientists. Congress had been warned this would happen, to no avail. Now, with our First Amendment rights under attack, we must rise to defend them. But first, some history. A century ago, many forms of speech were suppressed on the theory that they threatened the social order. Women's rights pioneer Margaret Sanger was indicted under the Comstock Act in 1914 for distributing information about birth control. Political activists who protested U.S. involvement in WWI were serving time for sedition. But beginning with the founding of the American Civil Liberties Union in 1920, a series of successful First Amendment cases gradually broadened speech protections to include virtually all subject matter. As technology progressed, this extended to new modes of expression as well, including audio recordings, motion pictures, and Web pages. Today even the most inflammatory ideas can be voiced with impunity—and in the case of some artists, at considerable profit. How ironic that the most recent attempt to limit free speech comes from Hollywood. And it's directed at computer programmers. In 1998, Congress made a series of revisions to the DMCA. Section 17 USC 1201(a)(1) makes it illegal to circumvent a technological measure that controls access to a copyrighted work, and section 1201(a)(2) makes it illegal to " traffic " in any circumvention technology, product, service, or device. Congress was assured these changes were necessary to protect works such as DVD movies from unlimited copying. But as Jessica Litman explains in her book, Digital Copyright, since 1909 Congress has been enacting whatever copyright provisions the lawyers for the major content-producing and distributing industries negotiate among themselves [1]. No one is looking out for the public's right of fair use. The technology that protects DVD movies is an incompetently designed stream cipher known as Content Scrambling System (CSS) [3]. The law, not the cipher, provides the real protection. But movie studios had other uses in mind for the new law. They could eliminate fair use because the law prohibits access to a work in a manner not approved by the copyright owner. They could control which movies customers watch through a region-coding mechanism requiring North American DVD players to reject discs intended for European or Asian markets , and vice versa. They could even force viewers to …