Freedom of Speech: Void Where Prohibited

Hollywood Exports Technology Ban Overseas Despite U.S. Abuse (Sep. 2001)

By Robin D. Gross, Staff Attorney for Intellectual Property, Electronic Frontier Foundation (EFF)*

When a 15 year old Norwegian teenager decided it was time for a DVD player usable on the Linux operating system and set out to help create one, he has no idea of the international fire-storm he was igniting.  Computer whiz kid Jon Johansen and the other members of the world-wide open source development project LiVID (Linux Video) began studying Hollywoods DVD encryption technology in hopes of building a compatible player so they could play their DVDs on the their computers as MS Windows users can. The announcement in the fall of 1999 that the technology had been successfully reverse engineered spread quickly around the globe, triggering a lawsuit in California against over 500 individuals throughout the world for publishing DeCSS on the web. Among other news publications, 2600 Magazine, which regularly reports on technology and cryptography related news items, was routinely covering the controversy and included the DeCSS code as part of its news coverage. Thats when Hollywood decided the information had spread too far and filed a new lawsuit in January 2000 against web publisher 2600 Magazine under the powerful new Digital Millennium Copyright Act (DMCA), a controversial piece of American copyright law passed by the US Congress in 1998 at the behest of Hollywood. The movie studios obtained a court injunction, forcing the journalist to pull the code off its web site, and eventually forbidding the magazine from even linking to the information that was the subject matter of such public debate. At the dawn of the information age Hollywood has sent a very clear message to the world: publish information about the workings of its technology and the industry will not hesitate to use the DMCA to silence you.

Since the DMCA had just proven itself so successful in silencing the critics of the US movie studios, the recording industry quickly cited the powerful new weapon in a threat letter sent to a Princeton University professor Edward Felten and his research team, further chilling speech and innovation.  In the fall of 2000, the noted computer scientist and his research team participated in the SDMI Hack Challenge, the recording industrys open invitation to defeat the technology designed to control uses of digital music. While the recording industry claimed that this technology would protect the interests of the public and the worlds musicians, the scientists who studied it discovered it would likely be defeated upon introduction in the market. When the researchers attempted to publish a scholarly paper on the lessens of their experience at a US technical conference in April 2001, the threat of litigation against the multi-billion dollar recording industry forced the researchers to pull the paper and presentation at the last minute. Not until after the scientists and the Electronic Frontier Foundation filed an affirmative law suit in a US court asking for a declaration of law that the scientists have a freedom of speech right to publish their paper did the recording industry back down and withdraw earlier threats of litigation. Although the paper was finally presented at a technical conference in Washington, DC, in August of 2001, the industry remains unwilling to commit to refraining from future prosecution of the scientists for other papers they are currently working on related. The fear of DMCA litigation among researchers who study certain encryption technologies continues to grow, driving the important science underground or overseas.

In the summer of July 2001, the first criminal charges were filed under the DMCA against a Russian software programmer visiting the US to speak at a technical conference about his recent innovations in creating electronic book (ebook) software. US software company Adobe Systems tipped off the FBI that a competing software company employee, 26-year-old Dmitry Sklyarov, was scheduled to speak about software he helped write that allows purchasers of Adobe ebooks to view their ebook using a competitors software. The FBI then arrested the employee of Moscow-based Elcomsoft, the company that made and distributed the software that helps people bypass the publishers use restrictions and is often necessary for people to exercise their fair use rights with ebooks, like copying a page for a school report, transporting it to a laptop to read at home, or making a back-up copy of the file in case of media failure. The Elcomsoft software was also necessary for individuals with visual impairments because it enabled a text to speech function whereby the computer would read the book aloud to the individual. Because Elcomsoft sold and distributed the software over the web to US citizens using a US server, criminal charges were triggered in the US under the DMCA's anti-circumvention provisions. After the graduate student and father of two young children spent three weeks in a US jail cell, he was released on bail to face charges under the DMCA that could earn him 25 years in a US prison for writing software in Russia that interoperates with Adobes ebooks.

The DMCA's backers are now busily exporting overseas its dangerous technology bans and legal theories of excessive copyright protection at the price of civil liberties. Other nations should learn from the disastrous US experience with the DMCA. They should wisely steer away from such over-reaching measures and restore freedom of speech as a value promoted by free and open societies.

Although a US law, the DMCA is chilling speech and stifling science around the globe. Scientists all over the world are asking themselves if software that they wrote in the past could be used to help gain access to or copy a work and therefore subject them to DMCA liability if they were to travel to the US. Several non-US scientists have issued statements indicating that they are afraid to travel to the US for fear of DMCA prosecution for conducting their research on encryption technologies. Other scholars and academics have indicated they must alter their course of study regarding certain technologies to avoid triggering liability under the DMCA. One Dutch cryptrographer has stated that although he has discovered significant weaknesses in Intels new security system for digital video, he will not publish his results for fear of DMCA prosecution. Already, several scientific and technical conferences have stated that they must relocate outside of the US, where technical speech is lawful, in order to avoid DMCA liability for their expert speakers, and for themselves as conference organizers, whos commercial interest triggers criminal penalties. Russia recently issued an official travel advisory warning its citizens about the dangers for computer programmers traveling to the US since the passage of the DMCA.

In its effort to justify and export the DMCA's broad ban on technology and information, Hollywood often misleadingly cites international treaty obligations under the World Intellectual Property Organization (WIPO).  However during the legislative hearings on DMCA, Clinton Administration officials testified that the anti-circumvention provisions of section 1201 were not required by the international treaties. WIPO only requires signatory countries to "provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures. WIPO simply does not require and the US Congress was not treaty-bound to ban devices with substantial non-infringing uses, as the DMCA does. The US is also attempting to force other countries to adopt similar anti-circumvention measures as a requirement in order to maintain a favorable trade relationship with the US. The European Directive also supports the dangerous legal theory of expanding liability of banning socially useful technologies and prosecuting their creators.

In its zeal to stamp out infringement, Hollywood has used the DMCA to silence a substantial amount of lawful speech. Since its recent enactment, the DMCA has been used to squelch research of a Princeton professor about weaknesses in the recording industrys controls for digital music, gag a journalist publishing information about the movie studios encryption system for DVDs, and smash a foreign competitor for creating software that can interoperate with Adobe ebooks. In none of these cases, has anyone been accused of copyright infringement, yet the DMCA is chilling speech and stifling science and innovation in a manner reminiscent of the Dark Ages.

Hollywood asked US Congress for the DMCA in 1998, promising it would be used only as a "shield" against illegal infringement. But as enforced, Hollywood wields the DMCA as a powerful "sword" to silence critics, prevent competition, take away the publics fair use rights under the copyright bargain, and censor truthful information about technologies vulnerabilities. Take heed.

[* Robin D. Gross is an intellectual property attorney with a leading cyber-liberties organization, the Electronic Frontier Foundation, where she specializes in intellectual property policy and digital music legal issues and serves as Director of EFF's Campaign for Audiovisual Free Expression (CAFE).  In addition to public interest litigation, Ms. Gross frequently speaks and publishes on cyberspace legal issues such as digital copyright, and the MP3 and DeCSS legal battles.

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