Slashdot Mirror

SataiCam writes "Marci Hamilton has an article over at Findlaw.com covering potential options for getting a shorter copyright after the Eldred loss (or, more likely, keep this one from growing again). Clearly such a movement is an uphill battle, Hamilton does nothing to argue against that, but the options are there. It's an interesting read with some good points and a tone of "if you want it, go out and fight for it." I don't necessarily agree with all she says, but that's not surprising, she is using an AOL e-mail address, after all."

someguyintoronto writes "This article from the Globe and Mail states that an Ontario Court of Appeal has ruled 3-0 that infrared surveillance is subject to the same laws that exist for obtaining warrants. The ruling came under a case where RCMP conducted aerial surveillance on a suspect's personal residence for production and trafficking of marijuana. The court commented: 'The nature of the intrusiveness is subtle, but almost Orwellian in its theoretical capacity.'" The U.S. Supreme Court, in a 5-4 ruling has held much the same thing.

Ethically Challenged asks: "Under the guise of recent legislation everyone at the publicly traded software company I work for is being asked to sign a 'Code of Business Conduct and Ethics'. In part, we have to swear to the following: we should not use company resources for any non-business purposes (I probably can't even write this); we must disclose to the CFO any relative that works for a customer, competitor or vendor; and, we are required to narc on coworkers who we suspect violate the code in any way. Are developers at other companies being asked to do this? Does it bother anyone that lowly workers like me are being asked to sign these things because executives are too immoral to behave themselves? Isn't all of this a colossal waste of time since most of it is common sense and it's pretty clear that the bad guys will ignore it anyway?" Most of this stuff sounds like the boilerplate protections most companies put in their employee agreements in the first place. Since you generally have to sign such agreements before you get your first paycheck, this new initiative seems rather redundant to me. Can someone more clued-in explain the justification behind this one?

The U.S. Homeland Security bill is steamrolling through Congress, on target to be passed within a couple of days. Since its passage is guaranteed, in whatever form it finally ends up, lawmakers are attempting to tack on their own pet projects to the bill so they can ride its coattails. A CNet article mentions that a version of the Cyberspace Security Enhancement Act has been appended to the HomeSec bill. William Safire blasts the addition in the New York Times. The Times has another story on the bill that notes some of the corporate pork that is also being added to the bill.

An anonymous reader writes "I know Rep. Berman is not held in high regard on Slashdot, but he has posted an article on Findlaw where he discusses his self- help for P2P piracy bill. He has not convinced me that this is about preventing theft, rather than preserving old business models, but the bill does appear to have a lot of safeguards built-in." I'm confused about what measures Berman believes would be acceptable, after reading the many disclaimers here.

crazyhorse44 writes "The lesser of two evils? 'The Directors Guild of America is suing more than a dozen companies that delete scenes depicting violence, sex and profanity from Hollywood films, saying the process violates federal copyright law. The lawsuit, filed Friday in Denver, was a response to a suit filed last month by Clean Flicks of Colorado, which is part of the Utah-based rental chain Clean Flicks. The company had asked a judge to rule its practice legal, despite protests from several well-known directors, including Robert Redford and Steven Spielberg. Clean Flicks argues it doesn't violate copyright law because it purchases a new copy each time it edits a film and because customers are technically owners of the videos through a cooperative arrangement. The edited tapes also carry a disclaimer that the film was edited for content, the company says.' Whose side to take? The DGA is defending the desecration of many of our favorite films, while Clean Flicks is strongly advocating for the copyright rights of the consumer to edit and/or alter the media that they purchase. At the extreme you have folks who want to eliminate all traces of sex and violence from the popular media against the movie industry who wants to eliminate all property rights of the consumer. Whose side would you take? Links at Salon, USA Today and FindLAW." We've had previous stories here and here.

Circuit Breaker writes "A short history of Aimster: Got noticed by the RIAA, lost their domain name to AOL, changed their name to Madster. More recently, a preliminary injunction has been issued against them, according to BBC News and Associated Press. Who's next?" Aimster declared bankruptcy months ago, so this is really a formality: beating a dead horse.

VUSE g-EE-k and entirely too many other people wrote in about an Appeals Court decision holding that the Pledge of Allegiance, as recited in its current form in various public schools (often by law), is unconstitutional. The court's decision (PDF) is available.

LinuxDeckard writes "According to this article at FindLaw, VeriSign will soon be offering its 'NetDiscovery' wire tapping services for a monthly fee. NetDiscovery will allow Telecoms to comply with court ordered wire taps." Verisign's press release is informative. This appears to be tapping of voice calls rather than internet usage. I assume it would work something like this: telecom company gets a wiretap notification from the FBI or local police; it routes all calls to/from $TARGET through a Verisign switch; Verisign does the tapping and reporting to the tappers. If you think this doesn't affect you, keep in mind that under the PATRIOT Act the barrier for wiretapping is set very low indeed.

LinuxDeckard writes "According to this article at FindLaw, VeriSign will soon be offering its 'NetDiscovery' wire tapping services for a monthly fee. NetDiscovery will allow Telecoms to comply with court ordered wire taps." Verisign's press release is informative. This appears to be tapping of voice calls rather than internet usage. I assume it would work something like this: telecom company gets a wiretap notification from the FBI or local police; it routes all calls to/from $TARGET through a Verisign switch; Verisign does the tapping and reporting to the tappers. If you think this doesn't affect you, keep in mind that under the PATRIOT Act the barrier for wiretapping is set very low indeed.

Greplaw writes "The 9th Circuit Court of Appeals ruled this evening that an anti-abortion website that featured "wanted" posters of various abortion doctors constituted a "true threat." The website, called The Nuremberg Files, is therefore not protected by the First Amendment and is illegal under a 1994 law prohibiting threats against abortion doctors. The full opinion of the court is available on Findlaw. This case marks one of the first times that a website has been ruled to constitute such a threat." Our previous story has the background on the case. The District Court found the website was an unlawful threat; a three-judge panel of the Appeals court found that it wasn't; and now the entire Appeals court has found, by a 6-5 vote, that it was indeed unlawful. The case could be appealed to the Supreme Court next. The accepted definition of a threat unprotected by the First Amendment is one which "on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution", and there is considerable dissent among the judges over whether a website can or cannot meet that standard.

Peter Wayner writes: "In all of the scary stories Hollywood circulates about copyright piracy, nothing could be scarier that the gang of file swapping, copyright circumventing hackers in the new movie 'Enigma'. They laugh and love a bit, but mainly they spend their time building a big whirring and clicking machine to smash a copyright protection mechanism. When the machine delivers, they put the results into a Gnutella-like file sharing system called Ultra so their friends can track down the original artists and kill them." (Read on for the rest of Peter's review.)

Ooops. Wrong generation and wrong spin. "Enigma" is about good codebreakers -- the mathematicians and clerks of Great Britain's Bletchley Park who helped the Allied cause during World War II by breaking the German coding machine known as "Enigma." It's a wonderful story that's been told as non-fiction several times before by serious historians. This time around, the former newspaper columnist Robert Harris created a thinly fictionalized novel filled with composite characters based on reality. While the result is not factually perfect, it is close enough to capture the dangerous era. Abandoning the literal truth also allowed him to build a richly plotted yarn that evolves cleanly and smoothly.

The film closely follows the novel, although it does eliminate a few of the more subtle complexities. It was wildly popular in Britain when it was released there last year, probably because the story is told with gorgeously detailed sets dressed with nostalgia for a time of British patriotism and success. The film's costumes are lavish, the extras are everywhere, and the look is close enough to reality that the best complaint one ex-translator stationed at Bletchley Park could offer was that the canteen in the film was much nicer. Even Mick Jagger, one of the film's producer, couldn't resist the spirit and gave himself a cameo appearance as an officer relaxing in a club.

This film could represent the cultural high point for codeslinging nerds and other Slashdot types. Jagger produced this film with another cultural icon, Saturday Night Live's Lorne Michaels. If you secretly spend your days dreaming of strutting around the stage like Mick Jagger, you can now take some pride in the fact that Mick Jagger spent at least a few days dreaming of playing a code geek. And why not? According to one of the characters, the women go weak in the knees when they get to talk to codebreakers like the protagonist, Tom Jericho (Dougray Scott).

This movie is about sex and mathematics and the crucial satisfaction that comes from understanding the depth of their power. The two main threads of the film track Tom Jericho's search for 1) a missing lover (Saffron Burroughs) and 2) a new way to break the Germans' four rotor, Naval Enigma system known as Shark. His lover may have been mixed up in Germany's sudden decision to abandon the old codes and all of this must be untangled or else the war could be lost. Tom Stoppard, the screenwriter also responsible for Shakespeare In Love, weaves these two threads together with car chases, kissing, train whistles, moonlit nights, illicit file swapping and a few other romantic chords.

It seems like a lot of things happen in four days, but we must remember that this plays out in an era when people weren't couch potatoes taught that ignoring advertising is forbidden. The pacing is the biggest problem with the film because there's too much action packed into 117 minutes, leaving some transitions a bit confusing. The jumps are often too quick and in some places it's hard to know when the flashbacks begin and end.

Despite that, there's much for a geek to love in this movie. Both the Enigma machine and the cryptanalytic attack developed by the British are described in fairly good detail. We learn, perhaps too quickly, that much of the game is finding a crib, a term the codebreakers used to refer to a word or phrase that must be somewhere in the scrambled message. A weather broadcast, for instance, would include the word "rainy" on a wet day and the codebreakers would examine the possible combinations that might produce that word. That was one weakness the folks at Bletchley Park were able to exploit before Jericho's girlfriend disappeared.

Some of the other mathematical details are accurate but not explained in enough detail to be easily understood. Once the crib was identified, the codebreakers relied heavily on the fact that the Enigma machine could not encode one letter into itself. This weakness allowed them to eliminate many of the potential cribs quickly. Then they spent their time looking for potential "loops" in the coding. In a simple case, a loop is formed when the letter A is encoded as an R and a few letters later, an R is encoded as an A. Most of the loops are a chain of several letters strung out in an odd combination. This pencil-and-paper work by the codebreaker is turned over to a big machine that uses the loops to eliminate many of the potential positions of the rotors. The rest are tested quickly with plenty of whirring and clicking. On a good day, and there were many of them, the right settings for the rotors popped out and let the Allies read the encrypted traffic.

You get to see all of this in action, although the film does not describe much of it in the hopes of sparing those unanointed with the knee-weakening, code smashing gene. It's not really fair for me to concentrate on the machines and ignore the actors because most of the movie revolves around the emotional battles for the characters and their conflicting desires. These passions are well-constructed and intelligently arranged. Dougray Scott plays the mathematician with enough dash and sophistication while Kate Winslet fills out the role of the mousey clerk and co-conspirator. The real star is Jeremy Northam, who plays a sophisticated Foreign Office spy with the right amount of oily charm. He, like everyone else in this movie, is fighting a private little war which may or may not fit in with the larger battle between the Allied and Axis forces.

Some of these battles are so crucial to the plot that it's impossible to comment on them without spoiling the ending. For this reason, I'm including several links for you to click after seeing the movie ( first, second, and third.) as well as a sentence encrypted with an Enigma simulator:

FBZ DDE NZA DJN PNI POH YBF NJR QFP DDZ TVP IHN YSJ IXX UAH YXF BZT ZXW BXS GES GYD IFO VXQ KHU LMA SYX YEG MGK

Using Enigma as a digital rights management device is not new-- Harris includes an encrypted dedication in the novel-- but it raises an interesting question: Is the movie and its detailed description of breaking the Enigma in violation of the DMCA? Is the extra detail in the movie just a cookbook for those who want to pirate the sentence I encrypted above? If so, should I be able to shut it down? While some reviewers may dream of writing something so powerful that it closes a movie immediately, I would hate to do it to this one. It's a pretty, nostalgic thriller that makes a good date movie--especially if you happen to be a knee-weakening, codebreaking type.

Peter Wayner's latest books are Disappearing Cryptography, an exploration about how to disguise information and Translucent Databases, a practical description of how to use encryption algorithms to protect sensitive information like credit cards and medical records. If they ever get made into a movie, he wants to be played by Keanu Reeves -- the one who played Ted "Theodore" Logan, not the one who played Neo.

An anonymous submitter writes: "Antitrust lawyer Chris Sprigman has written a thoughtful column In Findlaw's Writ on the issues behind the 1998 Copyright Term Extension Act and the legal challenge (Eldred v. Ashcroft) to that law. I only spotted one mistake. Sprigman states that Disney's 1967 movie The Jungle Book came out a year after Kipling's copyright expired, but I can't see how, under the terms of the 1909 copyright law, an 1894 book could have had its U.S. copyright expire much later than 1950. Except for that one glitch, (if that's what it is) it's a fine column. There's no explicit mention of computer software except in the mention of the title of a 1970 article by Stephen Breyer, but everything he says about the usefulness of the public domain in literature applies with a vengeance to source code. And his is discussion of the U.S. Constitution's framers reminds us (though Sprigman doesn't develop this point extensively, and might not himself put it in as blunt terms as I'm about to) that there's even a deeper reason than utility to cherish the public domain: it is our right."

An anonymous submitter writes: "Antitrust lawyer Chris Sprigman has written a thoughtful column In Findlaw's Writ on the issues behind the 1998 Copyright Term Extension Act and the legal challenge (Eldred v. Ashcroft) to that law. I only spotted one mistake. Sprigman states that Disney's 1967 movie The Jungle Book came out a year after Kipling's copyright expired, but I can't see how, under the terms of the 1909 copyright law, an 1894 book could have had its U.S. copyright expire much later than 1950. Except for that one glitch, (if that's what it is) it's a fine column. There's no explicit mention of computer software except in the mention of the title of a 1970 article by Stephen Breyer, but everything he says about the usefulness of the public domain in literature applies with a vengeance to source code. And his is discussion of the U.S. Constitution's framers reminds us (though Sprigman doesn't develop this point extensively, and might not himself put it in as blunt terms as I'm about to) that there's even a deeper reason than utility to cherish the public domain: it is our right."

An anonymous reader submits: "According to an article from law.com, yesterday's decision by the 9th Circuit Court of Appeals (U.S.) will have far-reaching effects on web publishing. From the article: '... The court found that reproducing photographs to create thumbnail images is a fair use of the material, but displaying full-sized images violates the copyright owner's exclusive right to publicly display his works....But the court found that displaying the full-sized images through linking and framing was not transformative and harmed the market for the original photographs.' One lawyer is quoted as saying, 'It's basically going to do away with linking or framing without permission.'"

Findlaw has an excellent essay discussing the history of law in wartime. The author makes the point very elegantly that inter arma silent leges (usually translated "in time of war the law is silent", but I prefer "in the face of arms, the law is silent"). Richard Stallman has an essay on a similar theme, not quite as good, but still worth reading.

BarefootClown asks: "We've all seen the stories about Microsoft forcing eBay to remove auctions hawking their software. Microsoft is certainly the most visible target, but there are others. Most every EULA includes a clause forbidding the transfer of ownership of software (there are exceptions, of course, and kudos to them). My question is, have these clauses been upheld in court?" What is so special about software (and their licenses), that allows it to avoid the protections consumers enjoy from more tangible products?

"I seem to recall hearing stories of courts overturning these schemes; does anybody have any specifics? Cases/judicial opinions, perhaps? I've checked FindLaw, Google, and others, but haven't found anything (haven't found anything upholding them, either...). Have these clauses ever even been to court, or do the companies just depend on FUD to bludgeon the end user into compliance? Anybody with experience, I'd love to hear it. Lawyers, your opinions? (Lawyers, would you be willing to fight one out in court, if given the chance?)"

As many of you may know, the concept of "owning" software is fallacy. You own nothing. What you do posess when you purchase your new piece of commercial software, is a corporate-skewed set of limited-use rights, which are getting more and more limited each day. For those interested, the latest print issue of Wired (October, 2001) has a big "article" on this (see p.170). It attempts to illustrate thru humorous example, what software has been seriously doing for decades.

No one would own (or lease) a car if the contract said, "You must not sell this car, in the event this car is no longer used, send it to the nearest junkyard.", so why is this true for software?

Thales_of_Miletus writes "Findlaw has an editorial today on fashioning a compulsory licensing scheme (the IP version of the real property eminent domain takings power)to allow third-party online music distribution to proceed without the RIAA's permission. Thoughtful arguments are made about the role of IP in a free society and restoring the public benefit function of copyright."

Thales_of_Miletus writes "Findlaw has an editorial today on fashioning a compulsory licensing scheme (the IP version of the real property eminent domain takings power)to allow third-party online music distribution to proceed without the RIAA's permission. Thoughtful arguments are made about the role of IP in a free society and restoring the public benefit function of copyright."

An Anonymous Coward writes: "The U.S. District Court ruled on Specht v. Netscape Communications Corp., 00 Civ. 4871, saying that a license that users don't even have to see before downloading online free software isn't binding. Calling these "browse-warp" licenses (as opposed to click-wrap), the court found that since usersdidn't have to look at them, users didn't assent to the terms. Netscape's use of SmartDownload, practice of harvesting information through SmartDownload with out an effective license is now suspect as since there is no license, and no assent, there is no agreement. See a report of the case at Law.com Or try to find the rulings at Find Law."

Keith Henson was arraigned on charges of "misdemeanor terrorism" last September. Last month the jury deadlocked on those charges, but convicted him of making threats to interfere with the constitutional privilege of enjoying religious freedom. He was not present at his sentencing hearing yesterday and is a fugitive from justice, apparently planning to claim asylum in Canada. If you've ever flamed anyone in an online forum, and think you have a right to carry a picket sign, you need to study this miscarriage of justice. Details below. Update by J : freehenson.tripod.com has been taken down, so I'm linking to a mirror.

"Religious bigotry will not be tolerated in Riverside County," was a Scientology spokesperson's reaction to the verdict.

That's basically the problem right there. The First Amendment gives me the right to be a bigot as long as I don't hurt or threaten anyone. You don't have to like my opinions, but you do have to tolerate them.

If you've ever hung out in an online forum, you'll probably get deja vu reading this Usenet thread. The first message posted is a description of cruising past some Scientology related buildings, complete with GPS coordinates for whatever reason. It's written as a self-mocking, satirical sendup of spy movies. The remainder of the thread is jokes in the same vein.

The question is whether this running gag about "Tom Cruise Missile Coordinates" (get it?) could be taken seriously enough to qualify as a threat under Section 11415 of the California Penal Code.

As I read the recently-passed law, if you go along with the jokes about the "handheld laser guidance system," you might be a terrorist:

Any person who knowingly threatens to use a weapon of mass destruction [including] by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out ...

The fact that the person who allegedly violated this section did not actually possess a biological agent, toxin, or chemical weapon does not constitute a defense to the crime specified in this section.

The victim of said terrorism must have been in "sustained fear" of the threat being carried out. And how does the law know your victim was in sustained fear? Because he or she evacuated the building -- or took "any other action."

Here's what Henson says. In this case, the Scientology organization's legal team managed to bar any evidence from being presented about why Henson was picketing the Scientology location (because of two unusual deaths within a month).

Nor was the context of the above thread, or context of Henson's other Usenet posts, allowed to be introduced. For example, the jury could not see the context of the above thread; they only saw Henson's contribution to the running gag:

Modern weapons are accurate to a matter of a few tens of yards. The terminal guidence ones are good to single digits.

Of the next quote, the jury was only allowed to see the first sentence, not the second:

The only way I can get clear of this scientology mess is to "destroy them utterly." So: This week I will be back picketing gold base.

And you can decide what you think his third quote means, but again you have the advantage of its context being just a click away:

PPS Killing the organization off entirely is the best way to change the future of Scientology.

Worse still, according to Henson's at-the-time lawyer, whether these statements caused fear in some Scientologists was decided not by the statements he actually made, but by hearsay versions they got from others. He points out that Scientology's censorware package ("Scienositter") would have blocked the original Usenet posts anyway:

...cult members, who are not allowed access to the Internet and are actively prevented (by the Church of Scientology "net nanny") from reading the newsgroups on which Henson posts, may have an unreasonable and irrational fear based on unreasonable and out of context statements of which they were informed selectively, but which they did not read.

So picture Keith Henson's situation. He feels strongly about his particular cause. He peacefully carries a picket sign. He exercises his First Amendment right to post on Usenet about what he's doing and why -- and in so doing he uses sentences and phrases which, in context, clearly are not threats, but out of context could be construed that way.

Dragged into court, all context is stripped away and -- while he narrowly escapes conviction as a domestic terrorist -- he is convicted of using the threat of force against people who may never have actually read what he wrote.

If you're smart, you'll take Henson's case as a warning. You'll think about what your own statements would look like, with their context totally removed, and in the harsh spotlight of a courtroom. Do you really need to post that joke, or wouldn't the judge find it funny?

You'll soften up your opinions just a little, trying not to change what you mean while trying to change what you could be twisted to mean.

Maybe it's not such a great loss for you or me; we're not great writers anyway, and if we censor ourselves before hitting Save, maybe that's not the end of the world. We weren't really going to use that First Amendment right anyway, you know?

But somewhere out there is a Mark Twain who's had it up to here and is poised to pen a caustic attack on a religion which will become an important classic. As of yesterday, Mark's a bit more likely to live in Canada.

Yesterday in a toasty courtroom in lower Manhattan, Stanford Law School dean Kathleen Sullivan faced off against lawyers for the world's biggest movie companies and a lawyer for the U.S. Justice Department with oral arguments in the appeal of the 2600 case. One of the three judges hearing the case -- Jon Newman -- appeared to be the designated questioner. He asked nearly all of the questions in both this case and the ones heard earlier in the day. He probed both sides about equally, trying to find flaws in the arguments of whoever was speaking at the time. I'll cover the hearing below, and there's possibly a few areas where the Slashdot crowd could assist in the case.

Sullivan spoke first. She argued that since the DMCA restricts speech, under the First Amendment the government must narrowly tailor the law to only restrict those specific areas of speech that it is targeting. Furthermore, the government bears the burden of proving that the speech it is restricting is a problem in some way -- usually it does this by holding hearings, getting testimony, etc., in the process of passing a law. She noted that none of this was done for the DMCA, and that the DMCA restricts many areas of speech that cannot constitutionally be restricted.

She also made much of a rather telling fact: there is no piracy attributable to DeCSS whatsoever. Not one traditional copyright infringement has ever been attributed to DeCSS, and the movie studios admitted in the case that they could not produce even one example of an infringement due to DeCSS. (Technically-literate people may realize that mass DVD copying is performed by stamping complete copies of the DVDs, encryption and all, no decryption required, though that wasn't covered in the hearing.) But Sullivan jumped on this point for all it was worth and then some -- the judges seemed fairly skeptical about accepting it, trying to insist that widepsread and massive copyright infringement due to DeCSS must be occurring, somehow, somewhere. It just must be.

She ran into her first really hard question when she stated that computer programs were expressive, and the judge asked her to explain. Her answer was that programs were beautiful in and of themselves, that they could represent scientific research, that they could be poems, and that they could do things -- their functional nature. I felt the response was lacking. Sullivan managed to work in the recent ruckus over a Princet on scientist unable present his work due to DMCA threats, which was cunning of her. If a Slashdot reader can create a pithy and short explanation for how and why a computer program is expressive speech and/or what it expresses, it might be useful.

Sullivan also argued that under free-speech precedent, if less restrictive alternatives were available to the government and it failed to use them, the law must be overturned. The judge mentioned the Audio Home Recording Act -- the law passed in 1992 which both implemented serial-copy protection in digital audio tapes and explicitly legalized home taping. Sullivan pointed to AHRA's serial copy prevention as an example of a law which restricted copying but which was not as restrictive as the DMCA turned out to be. This argument seemed to be pretty powerful with the judge.

The next point to be discussed concerned the injunction issued by Judge Kaplan, and his written opinion in the case. The Appeals judge made the point that the injunction could not be considered to apply to anyone except the specific defendants -- that is, just because 2600 was enjoined from posting or linking to DeCSS, doesn't mean that anyone else necessarily would. On the other hand, the reasoning applied in the opinion could be assumed to apply to other U.S. citizens wanting to post DeCSS. The gist was that Sullivan couldn't argue her case as if anyone would be enjoined from linking to DeCSS, but only regarding the specific defendants that were.

Finally they got to the idea of "disseminat ion," since the DMCA prohibits dissemination of circumvention devices. What does disseminate mean on the internet? The judge and Sullivan agreed that the New York Times is in the business of disseminating information (the NYT being today's quintessential example of "the press"). The judge asked if the New York Times intends to disseminate all of the information on every page it links to in its online edition. Sullivan said yes. The judge asked if the NYT specifically intends to disseminate every bit of info on every single page that it ever links to -- again Sullivan said yes.

Assistant U.S. Attorney Daniel Alter was up next. He started with a hypothetical: What if someone developed a program that could shut off the navigation system in commercial airplanes? What if someone developed a program that could shut off smoke detectors in public buildings? Surely, he said, the government could ban the publication of programs which were a threat to people's lives. He proceeded with the standard quotable rhetoric: DeCSS is a "digital crowbar." Hey, if you're a reporter covering the case and you don't understand it, at least you got a phrase that jumped out at you screaming to be quoted.

He then got down to the meat of his argument -- that the government can regulate conduct even if there's a speech component to it. He used the example of Giboney V. Empire Storage and Ice Co., a case where picketers (a constitutionally protected activity) were successfully prevented from picketing due to the functional intent of the picketing, which was apparently to violate certain laws relating to restraint of trade. Alter argued that the DeCSS case was similar -- the intent of distributing DeCSS is to promote violations of copyright law, therefore the speech part of such distribution can be ignored by the courts and the courts can focus on regulating actions without concerning themselves about speech issues.

Alter proceeded to postulate that the government has the ability to create and regulate a market in expression, and correct any market flaws that may exist. Viewed from this vantage point, the existence of the Internet and all of those unrestricted personal computers connected to it is one large market flaw which the government has the power to correct. He used the example of must-carry laws for cable systems -- cable television must carry local broadcast channels, and the official reasoning behind that is that otherwise cable systems would drive broadcast television into bankruptcy and the government is preserving a vibrant market in broadcast television through the must-carry laws.

He stated flatly that the problem with digital works is that they can be copied. He argued that the DMCA is actually pro-First Amendment, as a means to promote the market for digital works. So in the calculus of the government attorney, increasing the speech of a dozen movie studios at the cost of decreasing the speech of 260 million citizens is a win for the First Amendment.

The judge asked about the Audio Home Recording Act and serial copying -- why wouldn't the "no serial copies" approach taken to DAT recordings with SCMS under that law represent a less restrictive means for the government to promote copyright in the digital age? The attorney argued, of course, that the DAT law was inapplicable since it predated the massive growth of the Internet -- and this is where he pulled a fast one on the court. Alter stated that, due to the Internet, one only needs a single copy for "catastrophic" infringement, so even that one copy permitted by the Digital Audio Tape serial copy scheme would be too much. One copy, the judge asked? Yes, he said, just one copy and put it on the Internet and ...disaster. Apparently, in the attorney's world, once that lone copy is made, it pretty much automatically puts itself on the Internet with no further acts by any individual. The point Alter narrowly evaded evaded it is that the act of publishing a copyrighted work to the world is a copyright violation in the traditional sense, and is punishable under traditional laws.

So, the judge said, Congress needs a more restrictive technique to prevent copyright infringement because the Internet is now a factor? The DA claimed that it does.

The judge next moved to one of the most interesting questions of the day -- does fair use require access to a work in its original form? That is, one cannot excerpt a digital clip of a CSS-encrypted DVD, but one could point a video camera at the screen and create a clip, albeit of poor quality. Is that sufficient for fair use? This question has disturbing ramifications, depending on who is asking it and how it is answered. It seems odd, at first glance, to insist that one must be able to make fair use of a work in its full, unfettered, most-advanced, highest-quality form. But after thinking about it for a bit, I realized that anything else utterly destroys fair use. What if I could make clips of 256 kilobits/second mp3s, but the clips were at 16 kilobits/second? Would that be sufficient? Is a 16 kilobit/second mp3 even recognizable as music? What if book publishers could designate the Swahili version of a book as the "fair use" version, and completely shut down any quoting from the English version -- ("After all, you can still quote freely from the Swahili version; it may have a few words missing, and it's in Swahili of course, but you can still quote from it.") The judges seemed to be actually considering that filming a DVD movie from the television set or getting some macrovision-corrupted analog output might be sufficient for fair use purposes, and I hope they think it through and reject that idea entirely.

The attorney moved on to linking. He argued that 2600's actions ought to be examined in their entirety; that 2600 was effectively "shuttling" people over to commit a crime by linking to the DeCSS code. According to him, the entire conduct of the defendants should be considered to divine the purpose behind linking to the DeCSS code. If it were for some legitimate purpose, a link would be okay. But if the purpose were to "shuttle" people to commit a crime, that wouldn't be. The number of links would be important, the context would be important, and the intent of the writer would be important to this analysis. Search engines, according to the attorney, would be okay they are just providing lots of links without the harmful intent that the attorney felt was necessary. So apparently something like this:

"This is a scholarly discussion of DeCSS. We are a major media outlet, and would never encourage lawlessness, so this link to DeCSS is okay."

... is fine, while this:

"Hey all you l337 h4x0rz, come get DeCSS and use it to copy movies and watch them automatically distribute themselves via the Internet!"

... is not. How context works, I'm not sure. Certainly the vast majority of 2600's links that it has ever published are not "shuttling" people to copyright infringement -- the vast majority are for the standard journalistic purposes of disseminating information. But somehow under Alter's analysis, 2600 came up lacking while the NYT did not.

The judge cut deep with a hard question: "Can you prosecute a newspaper who publishes a list of stores where obscenity can be purchased?" The parallels to this case should be obvious. The attorney dodged the question with an outstanding answer: "Yes and no." He tried to go back to his theory of looking at the overall conduct of the newspaper, but it was clear that he didn't want to say "Yes, we can prosecute the newspaper for publishing the list of stores" but did want 2600's actions to be covered, and wasn't sure how to reconcile those two desires ... and neither were the judges. I'm not sure they bought his argument.

Finally, Charles Sims, the lawyer for the MPAA.

He had had time to pay attention to the previous efforts and tailor his argument somewhat. He tried to cover weak areas -- insisting, for instance, that no record of harm is required for Congress to regulate pure speech. He brought up the Congressional record (hearings, testimony, etc.) that pre-dated the DMCA, and said it showed "actual harm" to the movie industry.

Actual harm, the judge asked? "Yes. Actual harm," he replied. "Well, actual threat of harm." That got a laugh from the audience, and scored him no points with the judges. He didn't use the "digital crowbar" metaphor, but insisted that publishing DeCSS was like publishing the combination to a bank vault in a newspaper -- something which is not, as far as I know, a violation of any law, though it might well inconvenience the bank.

The judge asked this lawyer too the hard question about less restrictive means to accomplish the same goal and serial copy management. The MPAA's tactic was similar but slightly different than the U.S. Attorney's; the AHRA is inapplicable, he said, because Congress didn't take the Internet into consideration when drafting it. He also argued something that will make him no friends with the RIAA -- that motion pictures deserved more and better protection than music (so the AHRA serial copying wasn't appropriate for movies). After all, he said, motion pictures have never been subject to the sort of fair uses that music has, the copying and so forth. I suppose he doesn't own a VCR. This argument about motion pictures being more deserving than music seemed strangely surreal -- for the first several decades of motion pictures, they had much, much weaker First Amendment protection than other forms of speech because the courts considered them to be solely entertainment, and only an assortment of free-speech challenges to laws restricting them earned them the privilege to stand on a par with other forms of speech in the protection of the First Amendment. Now, the motion picture people are not only arguing that their form of speech is more privileged than others, but they're arguing that still another form of speech, computer programs, ought to be considered in that inferior, functional category that motion pictures worked so hard to escape from. It's a strange world we live in.

The judge asked whether the DMCA created a "permanent" copyright, or an effective extension of copyright. The lawyer smoothly dodged the questions by saying that movie studios could (not "would," but "could") publish works in unencrypted form when (if) their copyright on the work ever expires, or perhaps someone could use a decryption device then, since it would no longer be illegal under the DMCA to do so. The judge asked where those encryption devices would be, after all, they've been banned by the DMCA. The lawyer had faith that they would appear. So apparently: the fact that the studios haven't gotten encrypted content working in an impenetrable fashion yet means that they aren't screwing you out of your access to works when copyright expires.

In closing, the MPAA lawyer compared CSS to one putting a painting in one's living room or charging admission to a movie theater to see a movie. But the right to exclude people from your living room or a movie isn't created by copyright law, it's created by property law -- your home is your home, and you can exclude people from it to your heart's content. The MPAA's conception of property law was that the movies they release are essentially their home, and they have an absolute right to do anything they want with this property until copyright expires. It is a nice sleight of hand to conflate one's right to one's home, perhaps one of the most powerful rights a citizen has, with one's right to control how a movie is viewed is someone else's home. He seemed to be hoping that the one would rub off on the other.

In closing, Sullivan had a brief rebuttal period. Not worth going into; she tried to call the other two lawyers where she thought they went too far astray and she could zap them.

The judges took the case. They also requested one last brief from both sides, due by May 10th, to cover anything that came up at the hearing and the parties think needs to be explained further. I would suggest that it's likely that the people who draft the brief will read this article; and that insightful comments could be of assistance. I think there are a couple of key areas which people may be able to answer:

1. Why and how is a computer program expressive speech? What does it express? 2600's lawyers are entirely familiar with Touretzky's Gallery, so forget about those. Assume you have some C or perl staring at you, any random block of code in any random print-out. What does it express? Why should that code be protected expression?

2. What examples of fair uses absolutely require access to the work in its most modern, digital, uncorrupted, un-macrovisioned form? The only one that jumped out at me is making a backup copy in case the original is destroyed. But perhaps there are others.

Reader Trinition also points to this brief a ZDNews article on the hearing; the case was well-attended by the press and by people like the members of LXNY, New York's Free-software organization, so there are quite a few personal and press accounts around the Net.

PeterMiller writes "ABC News is running a story on a US federal appeal court that threw out a record $109 million verdict against anti-abortion rights activists. From the article: 'If defendants threatened to commit violent acts, by working alone or with others, then their [works] could properly support the verdict,' Circuit Judge Alex Kozinski wrote. 'But if their [works] merely encouraged unrelated terrorists, then their words are protected by the First Amendment.' My question is, what does this do to every other lawsuit claiming a website, movie, video game or song lead someone to a violent act?" Readers may recall that this case involved an anti-abortion website which published the names and addresses of doctors who provided abortion services, and cheered whenever one of them was killed. Our previous stories are here and here. The Appeals Court's opinion reviews the history of the case, and the finding that the statements on the website were not true threats under U.S. law and were thus protected speech. There used to be a number of mirrors of the site available - most of them seem to have disappeared, but this one is still up, minus the lists of doctors.

hayfever writes: "Catch the scoop. The Indianapolis Star is reporting here that the US 7th Circuit Court of appeals has overturned the Indianapolis ordinance banning violent video games from arcades (see previous Slashdot article here)." Findlaw has the decision, and there are some really good lines in there: "To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it." Update: 03/24 10 AM EST by J : The contrast is striking. The same day, our new Attorney General John Ashcroft released a statement: "Ashcroft on school shootings: Video games are part of the problem." Gun control? He prefers thought control: "We have to exhibit responsibility in other ways, so that the culture inhibits or restrains this impulse."

spludge writes: "The affidavit for the arrest of Robert Philip Hanssen, an FBI agent that spied for Russia for 15 years, makes fascinating reading. It reads like a spy novel with some neat technology references! In the affidavit Hanssen (aka "B") is portrayed as a computer expert with programming knowledge. The affidavit includes mentions of: the use of Palm VII's for communication, encryption techniques, track 40 floppy writing (?), a new NSA technique for surveillance (we aren't told what it is) and programs to automatically destroy computer data when it is compromised."

Hugh D. Hyatt writes: "Paraphrasing BNA Internet Law News: The appeal by several people posting mirrored versions of the Cyberpatrol hack has been rejected due to a lack of standing. The case had the potential to provide insight into free speech and copyright issues on the Internet with several high profile briefs filed as part of the case. So far there's been no media coverage but the case itself can be found here". Keep in mind that this appeal was filed by people not involved in the original case against Skala and Jansson, and this is a technicality judgment rather than an examination of the merits of the case. The court makes clear that the appellants were NOT affected by the original judgment and hence cannot be considered to be bound by it (or appeal it) - similar reasoning would also be applied in other cases such as the DeCSS suits, so this is a good look at what standing those mass-mailings of MPAA threat letters really have in law.

"The coin, however, has a flip side. A nonparty who has acted independently of the enjoined defendant will not be bound by the injunction, and, if she has had no opportunity to contest its validity, cannot be found in contempt without a separate adjudication. See id.; see also Alemite, 42 F.2d at 832 (declaring that a decree which purports to enjoin nonparties who are neither abettors nor legally identified with the defendant "is pro tanto brutum fulmen," and may safely be ignored). This tried and true dichotomy safeguards the rights of those who truly are strangers to an injunctive decree. It does not offend due process."

My Latin is a little rusty, but "pro tanto brutum fulmen" seems to mean something like "the court's heavy thunderbolt only reaches to a limited extent".

When you "purchase" software, what do you get? Increasingly, the answer is: nothing. Nothing tangible; no rights; and no resale value. This rant is spurred by Microsoft's changes to its distribution policy for all future editions of Windows. No longer will you receive a CD which is capable of installing the operating system with your new computer - Original Equipment Manufacturers are forbidden to ship you one, even though you just paid ~$100 for the software, and even though the change makes customers less than happy. Meanwhile, Adobe's chairman has the gall to tell us it's our own fault. I take a look at the future of software licensing.

MS's most recent abuses of its customers are just the latest in a series of increasing restrictions. OEM's are no longer permitted to include full-capability Windows disks with new machines - instead, what you'll get is either a disk image on your hard drive or an image on a "recovery CD". The "recovery CD" must be crippled so that it won't run on any hardware except that specific machine.

So what you bought is either some extra bits on your hard drive (sure hope you didn't want to use the full capacity of the drive; sure hope your disk doesn't fail) or a nearly-useless CD which is solely capable of restoring your PC to its original state - you'll have to backup and restore all of your data, reinstall all other software, re-change all settings you've customized, etc., if you ever use that CD. But you're a Microsoft customer [motto: "Your time isn't worth a bucket of warm spit to us"], so get used to it.

If you did something foolish, like swap in a new hard drive, or a new motherboard, well, I'm sorry, but you've lost any ability to restore your Microsoft operating system. And naturally, of course, you won't be able to copy it to another computer - even if you delete it from the first one. You can't sell it, you can't lend it, hell, you can barely use it yourself. Office 2000 with its forced registration procedure is much the same, and we're now getting submissions about this from people who didn't catch stories last year about it. Office 2000 binds itself to your system with the registration in exactly the same way as the "Recovery" CDs must be bound by the OEM to the system they ship.

The main effect of this will be to eliminate the concept of "used software". Software vendors like this; they can sell more retail copies if there's no aftermarket.

Generally, copyrighted works are governed by what is known as the "first sale" doctrine. This means that once the copyright owner has sold the item the first time, they lose all control over it - it can be resold without limitation. This matter originally came up when a book publisher was trying to prevent Macy's from selling books at a discount price. Essentially, the publisher (Scribner and Sons, still in business today) had a nice scheme going where it set "minimum" prices for its books. In fact, the scheme is practically identical to the scheme that music publishers have going today, and that software publishers like Microsoft are now moving to.

A brief quote from one of the cases:

The appellant is the owner of the copyright upon 'The Castaway,' obtained on the 18th day of May, 1904, in conformity to the copyright statutes of the United States. Printed immediately below the copyright notice, on the page in the book following the title page, is inserted the following notice:

The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright.

The Bobbs-Merrill Company.

I know what you're thinking. You're thinking, "That sounds just like a shrinkwrap license on software! Or it sounds like what the giants of the music industry [Sony, Time-Warner, MCA, Polygram, Bertelsmann and EMI Music] do with their 'Minimum Advertised Price' policies, which has resulted in a class-action suit and an ongoing FTC investigation!" Am I right?

So how did the Court look at this particular issue?

What does the statute mean in granting 'the sole right of vending the same?' Was it intended to create a right which would permit the holder of the copyright to fasten, by notice [210 U.S. 339, 350] in a book or upon one of the articles mentioned within the statute, a restriction upon the subsequent alienation [transfer of property] of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it and had given a satisfactory price for it? It is not denied that one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.

Software publishers have this in mind. So they don't actually "sell" anything at all. If you make a contract to license something, the terms can be anything that a court doesn't regard as "unconscionable" - whatever the other party demands. So in fact copyright has almost nothing to do with the "sale" of commercial software products - companies could just as easily license to you software written by, say, the Federal Government (which would be in the public domain) They don't need copyright at all, since the contract alone is sufficient to bind your permitted activities, if the courts say a binding contract has been created.

The idea here is to get away from copyright, because copyright has all those nasty exceptions carved out by the legal system such as the "first sale" doctrine. But if you license something rather than sell it... and if you can cripple it with technology so that regardless of what the law says, the product can't be resold... ahhh, then you're in business!

Why have courts permitted software licensing to usurp copyright? Why do book-title-page-licenses not bind you but back-of-a-software-box-licenses do? Why doesn't the purchase of a copyrighted piece of software entitle you to do just about anything with it except sell copies, just like the purchase of a book does? It's a long story, but basically, I think it's because the first cases to hit the court system looked a lot like standard corporate contract disputes rather than mass-market sales. Individuals have only started purchasing software at retail within the last ten years or so. And now that people have caught on that this is a Bad Thing, we get laws like UCITA, designed to expressly legitimize these sorts of licenses. Remember that UCITA applies to software-hardware combinations as well, so your next PC might have a license agreement applying to the hardware.

But back to what started this rant. Microsoft's licensing. Microsoft has wanted for some years to move to a rental system, where not only do you not actually purchase anything for them, you get to pay for nothing every year. (In fact, they delayed the announcement of it so it wouldn't overlap with the anti-trust decision - might look bad to be simultaneously losing an anti-trust suit and announcing how you were going to get millions of people to rent software from you.) That way they can extract truly maximal profits from their operating system - raise the rents when it seems appropriate, cut sweetheart rental deals with some companies and viciously expensive ones with others, depending on whether or not you testified for the DOJ...

Microsoft has a couple of goals here, you see. Getting shrinkwrap licenses validated by the legal system allows them to control pricing in much the same manner as Scribner and Sons' attempt at book-wrap licensing. And building protective technological measures into their software, such as the OEM system-lock for the operating system or Office 2000's single-system registration procedure, allows them to get around the first sale doctrine - you could sell the item, copyright law says you can, but you can't sell it, because the software won't work for anyone else.

At a minimum, you could donate it to a charity or school when you're no longer using it and get a tax break. But that Windows 2000 Recovery CD or an already-registered Office 2000 CD are just coasters. Microsoft, of course, can cheerfully continue to donate software licenses and take tax write-offs for the full retail price of the software, a strategy which saves them hundreds of millions of dollars in taxes every year at a cost to them of approximately zero. And don't you dare to try to circumvent those controls in order to exercise your legal right to resell the software - that's a violation of the Digital Millennium Copyright Act, I doubt you want to spend five years in prison.

In a non-monopoly marketplace, the fact these two products are worth a lot less to you than their predecessors would force a reduction in price. Instead, Microsoft raised the prices on both. Lawyers have considered the interplay of contract, copyright, and technological restrictions - here's a paper, here's another - but the time is long past for this issue to be considered by the public.

And that's why the threats of Adobe chairman Warnock are the last straw. Microsoft and all the other familiar names in commercial software have been increasing their restrictions for years. It doesn't have anything to do with piracy; we're

"...going to have a piece of music that will only play on one Walkman. [We're] going to have a piece of software that will only work on one machine. It will provide enormous inconvenience."

regardless of what the fictitious figures of the Business Software Alliance say about copyright infringement. Listen to what Warnock is saying: if only we evil customers didn't make copies of software, Microsoft wouldn't force computer manufacturers to cripple the Windows installed on their machines. Yeah, right. Tell me another one, John.

But Warnock is absolutely right: it's a failure of the general population that is responsible for this licensing mess we're in. The failure is: insufficient regulation of the software industry.

If you buy a car, you are almost certainly protected by state "lemon laws". They were enacted to prevent the abuses that were extremely common, and so you acquired certain minimum rights in the purchase transaction which cannot be waived: if the car breaks down all the time, you can return it and get a refund plus your expenses paid. No matter what the sales contract says. Similarly there are restrictions on just how small the fine print can be, how egregious the interest rate can be, etc. The laws have had a salutory effect on auto sales - dealers are much less likely to try to cheat customers, and manufacturers have incentives to build better-quality cars. It is, in fact, a win-win situation - even though auto manufacturers screamed that laws like these would put them out of business in a week.

We haven't got anything of the sort with software purchases. And like Adobe's chairman just told us, the race to the bottom - who can have the most restrictive licensing, who can gouge the customer the most - is in full swing. It took a long time to get lemon laws enacted across the country, many years of abuses and horror stories, many years of opposition by the automobile manufacturers doing exactly what the software manufacturers are doing now: dumping buckets of cash into Congress. Are we going to learn from our experiences of the past and put some restraints on these abusive restrictions? Are we going to makes software sales into sales, and make software companies stand behind their products? We are, no doubt about it; abuses like these will only be stood for so long. The question is only this: How long will we stand for it?

What do you mean I don't own my software?
Adobe software is owned by Adobe. When you purchase software, you purchase a license to use the application. The use of the software must be in compliance with the End User License Agreement that is included with the software. Misuse of software is punishable by Federal Copyright Law.

-- from http://www.adobe.com/aboutadobe/antipiracy/main.html

We can fix that, Adobe.

rudedog writes: "According to this Seattle Times article, the Washington Supreme Court has upheld a shrinkwrap license limiting recovery of damages due to buggy software. Apparently, the software manufacturer agreed that there was a bug that cost the plaintiff $1.95 million, but asked the court to dismiss the claim based on the license agreement [which disclaimed all liability]. Kinda answers the old open source FUD question 'who you gonna sue if something goes wrong?'. According to the WA courts, nobody." The opinion is available here, and a dissenting opinion by two of the judges is also available.

rudedog writes: "According to this Seattle Times article, the Washington Supreme Court has upheld a shrinkwrap license limiting recovery of damages due to buggy software. Apparently, the software manufacturer agreed that there was a bug that cost the plaintiff $1.95 million, but asked the court to dismiss the claim based on the license agreement [which disclaimed all liability]. Kinda answers the old open source FUD question 'who you gonna sue if something goes wrong?'. According to the WA courts, nobody." The opinion is available here, and a dissenting opinion by two of the judges is also available.

The Federal 6th Circuit Court of Appeals ruled on Junger v. Daley Tuesday, finding that source code is expressive speech. PeterD.Junger had sued in 1997 to allow posting of some crypto code on the Internet, on the grounds that it is expressive and not merely functional. The court found in his favor: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment." Read on for an excerpt from the ruling (or go read the whole thing yourself, lazy!).

See also the Wired article. And may I just say how delightful it is that the court compared source code to written music -- and to the works of JacksonPollack!

Excerpt from the court opinion:

The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography and that encryption source code can be used by programmers and scholars for such informational purposes. Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of permitted government regulation.

The Supreme Court has explained that "all ideas having even the slightest redeeming social importance," including those concerning "the advancement of truth, science, morality, and arts" have the full protection of the First Amendment. ... This protection is not reserved for purely expressive communication. The Supreme Court has recognized First Amendment protection for symbolic conduct, such as draft-card burning, that has both functional and expressive features. ...

The Supreme Court has expressed the versatile scope of the First Amendment by labeling as "unquestionably shielded" the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll. ... Though unquestionably expressive, these things identified by the Court are not traditional speech. Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programers.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

The Federal 6th Circuit Court of Appeals ruled on Junger v. Daley Tuesday, finding that source code is expressive speech. PeterD.Junger had sued in 1997 to allow posting of some crypto code on the Internet, on the grounds that it is expressive and not merely functional. The court found in his favor: "Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment." Read on for an excerpt from the ruling (or go read the whole thing yourself, lazy!).

See also the Wired article. And may I just say how delightful it is that the court compared source code to written music -- and to the works of JacksonPollack!

Excerpt from the court opinion:

The issue of whether or not the First Amendment protects encryption source code is a difficult one because source code has both an expressive feature and a functional feature. The United States does not dispute that it is possible to use encryption source code to represent and convey information and ideas about cryptography and that encryption source code can be used by programmers and scholars for such informational purposes. Much like a mathematical or scientific formula, one can describe the function and design of encryption software by a prose explanation; however, for individuals fluent in a computer programming language, source code is the most efficient and precise means by which to communicate ideas about cryptography.

The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection. Rather, the appropriate consideration of the medium's functional capacity is in the analysis of permitted government regulation.

The Supreme Court has explained that "all ideas having even the slightest redeeming social importance," including those concerning "the advancement of truth, science, morality, and arts" have the full protection of the First Amendment. ... This protection is not reserved for purely expressive communication. The Supreme Court has recognized First Amendment protection for symbolic conduct, such as draft-card burning, that has both functional and expressive features. ...

The Supreme Court has expressed the versatile scope of the First Amendment by labeling as "unquestionably shielded" the artwork of Jackson Pollack, the music of Arnold Schoenberg, or the Jabberwocky verse of Lewis Carroll. ... Though unquestionably expressive, these things identified by the Court are not traditional speech. Particularly, a musical score cannot be read by the majority of the public but can be used as a means of communication among musicians. Likewise, computer source code, though unintelligible to many, is the preferred method of communication among computer programers.

Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.

werdna writes: "A recent article criticized Apple for overreaching by asserting "design protection" for the product configuration of its iMac line. Apparently the United States Supreme Court might agree with Slashdotters in an appropriate case. In a decision handed down yesterday, Wal-Mart Stores, Inc. v. Samara Brothers, Inc., the Court held that product design, like color, cannot be inherently distinctive and obtain trademark-like protections, until it has acquired distinctiveness such that the marketplace naturally perceives the design to be a designation of product source, such as in the way that "International Business Machines" is associated with products from a company in Armonk rather than a general description for typewriters sold internationally. Thus, absent a design patent, it has just become substantially tougher to obtain protections for industrial designs. Time will tell how important this decision will be."

Slashdot's received a lot of submissions about RIAA actions recently, and the actions of colleges taken after the RIAA sent them nasty letters. One of the interesting things about this is that the RIAA is apparently not listing any specific offenders, just sending general warnings to any and all colleges with computer networks. Under the Digital Millenium Copyright Act, copyright holders acquired several new rights, with the promise they wouldn't abuse them. They're abusing them. (More...)

A good example is a demand letter to a Swiss university, ETH Zurich, which demands that the school immediately terminate all web pages with illegal MP3 files (illegal is of course a judicial decision; the letter presumes that all MP3s are illegal); that the school provide names and home addresses of all students with MP3 files hosted on the school's servers; that the school provide the date that those MP3 files were first hosted (for every MP3 on every server); and that the school provide the IP address for every machine anywhere on the internet which downloaded a MP3 file from the school's servers.

The letter closes with a carrot: we'll adjust our monetary demands based on how well you comply with this letter. Better hope your IP address doesn't appear too many times in those web server logs.

We can probably assume that the demands to U.S. schools are much the same - far-reaching, extortionate letters which are not specific about any particular infringement alleged to be occurring, but which are intended nonetheless to scare the universities into cracking down on their students. The terms of the compromise of the Digital Millenium Copyright Act were that the RIAA and related groups would do the policing of their copyrights - if they found a specific file that they alleged was unlawfully infringing, they have a procedure to follow, specific information to provide about the specific infringing file, and the ISP (college or whatever) is supposed to "do their part" by deleting/removing said file if the paperwork is correct. ISPs and colleges are not supposed to do the grunt work themselves - that results in the kind of overbroad crackdowns that we've seen. This was the subject of specific negotiations during the process of creating this law.

But the RIAA, of course, would prefer that schools and ISPs do their cracking down for them. So they send these general scare letters, hoping to trigger a reaction.

Scare tactics work. Universities scan through student computers, trying passwords on protected directories. The new Rio players will incorporate all of the RIAA's desired protections against copying of MP3 files - the price of settling the RIAA's lawsuit. The next target is Napster.

RIAA will now be filing suit against Napster, an application which effectively functions like a single purpose IRC server, connecting people who want to share MP3 files, whether legally or not. (There's a linux port of Napster; better download it quick.) Some schools, like Oregon State University, are so scared they're blocking all access to Napster servers from school systems. In the ideal world, Napster should probably win - the RIAA could monitor their servers and demand that infringing users be eliminated, but the service equally provides people with an avenue to share legal MP3 files, and this significant non-infringing use is all that is needed under copyright law. The article I just linked to and a nice Wired story both show Napster feebly trying to insist on their duties under the DMCA, saying that the RIAA needs to tell them in writing about specific instances of infringement - but the RIAA doesn't care about the law.

Napster, of course, has no money to fight a lawsuit. This is exactly what happened to the Rio: they won in court, but since the RIAA planned to appeal the suit and drain more money out of Diamond Multimedia, they settled by promising that future Rio's would include the RIAA's copyright protections. Like the Dentist's extortion tactics in Cryptonomicon[1], RIAA lawsuits are equally powerful whether they are on solid legal grounds or not - Napster will lose this suit, whether they win or lose, because the RIAA can afford the money to fight it and Napster cannot. So presumably Napster and RIAA will come to some agreement, settle the lawsuit, and Napster's next generation will incorporate the RIAA's demanded copyright protection system.

Just remember, RIAA CEO Hilary Rosen says she loves the idea of Napster to build communities, "but not on the backs of huge mega-corporations with billions of dollars of revenue quarterly."[2]

The RIAA is hardly the only abuser. The Business Software Alliance, essentially a front group for protecting Microsoft's copyrights, does similar things with regard to "pirated" software. (What a PR genius it was who thought of describing all copying of software as piracy! Probably the same person behind the "cyber-squatter" label for anyone who owns a domain that a company covets.) The BSA is now raiding homes of people accused of copying software.

The idea behind copyright is to expand the amount of information available to the public by creating a government-mandated monopoly on reproducing it - for a limited time (28 years maximum, at the beginning - today the maximum copyright term could be over 150 years). Copyright has always has the inherent give-back to society - the work would pass out of protection, and then anyone could copy it and use it as they saw fit. But copyright is now essentially unlimited - over the last twenty years, the length of the copyright period has increased by forty years, so that essentially no materials produced since World War I have entered the public domain. In about 15-18 years, copyright holders will again be petitioning Congress to extend the copyright term, so that entities like Mickey Mouse never enter the public domain. The extension is now being challenged as unconstitutional, but the challengers lost in District Court and it's far from certain that this suit can succeed.

In today's world, it's customary to speak of copyright as some sort of innate right. It isn't. It's there for the betterment of society, but its functioning, today, contributes nothing to society - all it is is a government-sanctioned monopoly transferring money from your pocket to others, with nothing ever given back - and no possibility of give-backs until 2019, under current law.

We need to rethink copyright. It's not a fundamental right of corporations to receive a 95-year government monopoly. Businesses plan on a five-year cycle - if something isn't forecast to make a return on investment in five years, it doesn't get done. A five-year grant of copyright to corporate authors would serve just as well in promoting the development of new material, and would bring a tremendous amount of material into the public domain, which is copyright's true intent. With a much smaller amount of material actually under copyright, enforcement of it would be far simpler and more straightforward.

But naturally this would cost certain companies a lot of money - they're used to wallowing in their government-granted monopoly. Disney has made back their costs for creating Mickey Mouse billions of times over, but they're used to the cash flow now and would be willing to buy an entire Congress to protect it. The Digital Millenium Copyright Act was passed with the aid of a great deal of subterfuge, but most importantly, a great deal of campaign contributions. Now you can be a criminal not just for actually copying anything, but for making a "device" (hardware or software) which facilitates copying - we're talking five years in Federal prison. Imagine doing five years in Federal prison so that Congress can protect their campaign donations, errr, I mean, Disney's cash flow.

We're extremely close to the day when debuggers are illegal. Through threats, strategic campaign donations, and outright extortion practiced on upstart companies, copyright-holders like the RIAA are building copyright protection into the very infrastructure of computing.

Making changes in this system requires a fundamental commitment from the U.S. populace that it be changed. The commitment doesn't exist yet, but as more and more people experience the power of copyright to affect what they can and cannot publish online, and the abuses of the companies dedicated to protecting copyright beyond the terms of the increasingly-protective law, perhaps it will in the future.

Some slashdot readers will no doubt say, "Open source, you idiot!" Open source is a reaction to these problems, not a solution to them. Despite the open source phenomenon, the trend is toward more and more works being locked up, and locked up permanently, behind laws and cryptographic protocols. It shouldn't have to be a war between words, pictures and code that is always free to use and words, pictures and code that is locked up for all eternity - we should demand that the social contract envisioned in the Constitution be fulfilled by forcing copyright holders to give back to society, whether they want to or not.

-- Michael Sims

[1] Gratuitous Cryptonomicon reference provided free of charge.

[2] Quote may not reflect Rosen's exact words, but does reflect her intent.

SkrewBawl, among others, notes that Shays-Meehan, aka the campaign finance reform bill, passed the House recently. The New York Times ran an interesting story on it, discussing the possible effects on web sites. The problem is, existing campaign finance laws already cover the internet.

Shays-Meehan isn't likely to pass this year. Though the House passed it, the Senate Republicans have the ability to filibuster and prevent it from passing as they did last year. So you probably need not worry about that bill passing or about any meaningful reforms in our election system; Dubya¹ will win the election with millions upon millions of dollars of "soft money" funneled through his party and not subject to campaign finance laws.

But let's look at existing campaign finance laws. They require, among many other things, that anyone who spends more than $250 promoting a candidate, even totally independently of that candidate's campagin committee or political apparatus, must register with the FEC. Spend over $1000 and you have to register as a political action committee. The problem is, when looking at websites, the FEC counts the cost of the domain name, the hardware used to run the site, bandwidth and other costs, as well as the actual time and/or money spent to develop the site - so essentially every website which promotes a specific candidate is in violation of the law unless they file with the FEC. Furthermore, the proprietor of the website must include his full name along with his political message - it is illegal to anonymously endorse or oppose a candidate for office.

There is doubt about the constitutionality of that statute. An Ohio law which also outlawed anonymity was overturned by the Supreme Court in 1995, in a case called Mcintyre vs. Ohio elections Commission. Nevertheless, the federal statute has never been directly challenged and the FEC does not consider it to have been affected by the Mcintyre decision.

So what problems will occur as the next set of major elections draws near? If anonymity is outlawed, individuals cannot freely express their opinions without fear of retaliation.

If anonymity is permitted, Internet electioneering is likely to turn into a horde of fake astro-turf sites which are allegedly independent supporters of candidate X, but were actually created and paid for by the candidate. We've already seen this in movie promotion and other forums; for even higher stakes such as the Presidency, you can expect correspondingly more fakery.

As for myself, I'm undecided. This country's election system desperately needs an overhaul. But it seems like most of the proposed changes wouldn't do much to improve the system, and lead to draconian restrictions on political speech on the Internet and elsewhere. What's the solution?

1. George W. Bush, Jr.