Monday, April 22, 2002

War of analogies The motion picture industry successfully censored 2600 for posting DeCSS code under the DMCA in 2600 v Universal Studios. The case is now on appeal.

I heard Chicago law prof. Geoffrey Stone talk about the case and its First Ammendment ramifications today. Basically, he said that if a law incidently blocks speech, but is fundamentally not about speech at all, then the Supreme Court lets the law stand. This is sensible since almost any law can, in some situations, block speech, and the Supreme Court doesn't want to be buried under millions of First Ammendment challenges. The second point is that if "words" are essentially like keys to a lock, they can have their functionality prohibited because prohibiting functionality is incidental to banning content.

DeCSS, then, becomes a case of two duelling metaphors. Is it like a key, passed on from one accomplice to another to further an illegal end? Or is it like a book (or movie) describing a homicide in painstaking detail, which is valuable both as entertainment but also teaches someone how to commit crime? The former does not enjoy First Ammendment protection, but the latter does.

I think a good way to attack this case is to argue that CSS is not about preventing copying at all (which it isn't), it's about enforcing industry collusion to geographically carve up sales territory. This doesn't declare the DMCA unconstitutional, but it does carve out an exception for DeCSS and other code-backed cartels.


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