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At the end of the 90’s, the DMCA was passed and a program called DeCSS was released. DeCSS decrypted region-encoded DVD’s to allow copying and as well as playback in region other than the one the DVD was sold in. We will talk about this case, what happened and discuss how we can legally analyze computer source code to decide if it qualifies as speech.


Computer Code As Speech: DeCSS and the DMCA

  • In 1998, congress passed the Digital Millenium Copyright Act
  • The goal was to prevent people from sharing musics, videos, etc without a license to do so
  • This was largely in response to what happened with Napster
  • This was right around the time that DVD’s were taking over the home-video market
  • In the days of video tape, there were incompatible analog standards in different parts of the world (NTSC/SECAM/PAL)
  • Media companies, primarily movie studios wanted to keep their practice of selling to different markets at different prices - in fact, they wanted to increase it
  • They included region coding on the DVD’s which locked the DVD to players from one of seven regions
  • The DVD Copy Control Association was an industry group that licensed the DVD logo and the decryption code
  • They did not license the decryption code to users of operating systems like Linux, BSD, etc
  • In 1999, some programmers figured out how to decrypt DVDs and released DeCSS as part of a DVD ripping program
  • This could be used to make a lossless copy of the DVD
  • It could also be used to just watch movies or make backups
  • DVD CCA sued the programmer behind the GUI, the person who did the decryption is still unknown
  • Other exploits were found, DVD CCA eventually gave up on keeping DVD’s secure
  • Judge Kaplan gave an injunction to prevent publication of the program online as a circumvention device
  • A different ruling in 1999 held the following: “This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French….Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it… “
  • This lead to various ways of representing the DeCSS source code - pictures, t-shirts, mathematical descriptions, a song, etc
  • The linked gallery provides an exploration of the idea
  • What are the limits to code as speech
    • What if one wrote a program to parody or criticize a political figure?
    • What if one write a utility that searches within files
    • Can the Government order one to create a computer program?
      • Does that become compelled speech?
  • How do we look at legal questions
    • Essay “What colour are your bits?” by Matthew Skala
    • Legal analysis often includes the state of mind of the person writing the code
    • Was there malicious intent? Did you hear the original?
    • How about the nature of communication
      • Is it substantive or transactional?
      • What kind of point is being expressed?
      • Could the other person receive the meaning?
  • The message is not the medium but the medium may be critical to the message

References

Is Code Speech: Apple Decryption Case EFF Reflects on case that sows code is speech Gallary of DeCSS Sources Descramble Song What colour are your bits?

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