[free-sklyarov] Judge: Code is Speech, But Go to Trial Anyway

[Seth Johnson]

(Forwarded from DMCA Activists list,
dmca-activists at gnu.org.  Article text pasted below.  --
Seth)


-------- Original Message --------
Date: 09 May 2002 12:17:18 -0400
From: Jonathan Watterson <jono at fsf.org>


Judge: Code is speech, but we'll try you anyway.

http://www.wired.com/news/politics/0,1283,52404,00.html

J

-- 
Jonathan Watterson  		Digital Freedom Organizer
http://digitalspeech.org	Free Software Foundation

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----
http://www.wired.com/news/politics/0,1283,52404,00.html


Judge: Elcomsoft Case Can Proceed 


By Farhad Manjoo 
May 8, 2002


A federal judge ruled on Wednesday that the copyright
infringement case against the Russian software company
Elcomsoft can go on, dismissing the defense's claim that key
provisions of the Digital Millennium Copyright Act are
unconstitutional. 

U.S. District Court Judge Ronald Whyte of San Jose said that
the DMCA was neither vague nor did it violate the First
Amendment, as Elcomsoft had argued. Although the judge
agreed with Elcomsoft that computer code is speech, he said
that the DMCA does not unconstitutionally ban that speech. 

His ruling allows the first criminal prosecution under the
DMCA to continue in the courts; neither the government nor
Elcomsoft were available for comment regarding whether they
may pursue any settlement negotiations. 

U.S. v. Elcomsoft, the case that began last July with the
arrest of the Russian programmer Dmitri Sklyarov, has become
a major courtroom test of the DMCA, the controversial law
that many in the programming community have criticized as
being too broad. Elcomsoft is charged with creating and
trafficking in a copyright "circumvention device" -- that
device is the company's Advanced eBook Processor, which
breaks the encryption scheme of Adobe's e-books. 

One of the main complaints against the DMCA has centered
around "fair use" -- the right to access copyrighted works
for limited use. Elcomsoft's attorneys as well as other
critics of the DMCA have argued that the law does not
sufficiently protect fair use rights, and that it instead
enjoins anyone from creating a so-called "circumvention
device," even if the purpose of that circumvention is
lawful. 

But in denying the defense's motion, Whyte ironically agreed
with them that the law does not distinguish between devices
created to promote fair use and those created to "infringe"
upon a copyright. 

"Nothing within the express language would permit
trafficking in devices designed to bypass use restrictions
in order to enable a fair use, as opposed to an infringing
use," Whyte ruled. 

"The statute does not distinguish between devices based on
the uses to which the device will be put. Instead, all tools
that enable circumvention of use restrictions are banned,
not merely those use restrictions that prohibit
infringement. Thus, as the government contended at oral
argument, (the law) imposes a blanket ban on trafficking in
or the marketing of any device that circumvents use
restrictions." 

The judge further adds: "The act expressly disclaims any
intent to affect the rights, remedies, limitations, or
defenses to copyright infringement, including the right of
fair use." 

In other words, it doesn't matter whether you create
software to crack an e-book only with the intent of copying
some passages from the e-book in a "fair" manner: Creating
that cracking software still violates the DMCA, according to
Whyte. 

Elcomsoft had argued that the code in its eBook Processor
was a kind of "speech," and Whyte agreed. 

"The government contends that computer code is not speech
and hence is not subject to First Amendment protections," he
wrote. "The court disagrees. Computer software is expression
that is protected by the copyright laws and is therefore
'speech' at some level, speech that is protected at some
level by the First Amendment." 

But to the chagrin of Elcomsoft, he said that the DMCA's
regulations on the speech-in-code is not unconstitutional:
"In the digital age, more and more conduct occurs through
the use of computers and over the Internet. Accordingly,
more and more conduct occurs through 'speech' by way of
messages typed onto a keyboard or implemented through the
use of computer code when the object code commands computers
to perform certain functions. 

"The mere fact that this conduct occurs at some level
through expression does not elevate all such conduct to the
highest levels of First Amendment protection. Doing so would
turn centuries of our law and legal tradition on its head,
eviscerating the carefully crafted balance between
protecting free speech and permissible governmental
regulation." 

Whyte's ruling marks yet another setback for DMCA foes, who
have seen many of their legal efforts to overturn the law
crumble at the hands of unsympathetic judges during the past
year. 

Last fall, for example, an appeals court in New York, siding
with the movie industry against 2600 magazine, ruled (PDF)
that the DMCA did not violate the First Amendment because
its restrictions are "content-neutral, just as would be a
restriction on trafficking in skeleton keys identified
because of their capacity to unlock jail cells, even though
some of the keys happened to bear a slogan or other legend
that qualified as a speech component." 

On the same day, in a separate case, U.S. District Judge
Garrett Brown dismissed a case against the Recording
Industry Association of America, saying that the association
had not stifled academic research when it told Ed Felten, a
Princeton professor, that his research into a
music-encryption scheme violated the DMCA.

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