Court of Appeals Asks: Is Computer Code Speech?

The Second Circuit Court of Appeals is considering the question of whether computer code is protected speech under the First Amendment. At issue is a case brought by eight motion picture companies against 2600 Magazine to enjoin it from publishing or linking to DeCSS, a computer program used to circumvent the encryption used in DVDs. The movie studios contend that DeCSS is an unlawful circumvention device and that, as such, the defendants are prohibited by the anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA) from distributing it.

The Second Circuit Court of Appeals is considering the question of whether computer code is protected speech under the First Amendment. At issue is a case brought by eight motion picture companies against 2600 Magazine to enjoin it from publishing or linking to DeCSS, a computer program used to circumvent the encryption used in DVDs. The movie studios contend that DeCSS is an unlawful circumvention device and that, as such, the defendants are prohibited by the anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA) from distributing it.

The Court heard oral arguments in Universal City Studios, Inc. v. Reimerdes on May 1. A week later it sent written requests to both parties for further clarification on the question of whether DeCSS is itself a form of speech. This question will determine the level of scrutiny the Court will apply when examining the DMCA’s restrictions on its dissemination and use.

In its reply brief, the Electronic Frontier Foundation, on behalf of the defendant, argues that “DeCSS itself has no non-speech elements” and similarly that its “dissemination .. by a member of the media covering an issue of public concern is pure speech.” They liken the computer program to “blueprints and instructions for a photocopier, recipes, books about fixing cars, and videos on baby care” and argue that just because somebody “might use [it] to do something” does not mean that it is any less protected as speech.

The movie studios, on the other hand, deny that DeCSS involves any form of speech referring to it as a “digital crowbar” designed to deliberately circumvent copyright protection technologies. They continue that the prohibition on its distribution is just the same as measures prohibiting “the provision of gambling devices, trafficking in satellite theft devices, and trafficking in cable signal theft devices” and is not a content based restriction on speech.

Courts have previously ruled that computer source code can be considered speech. Last year, in the case of Junger v. Daley, the Sixth Circuit Court of Appeals held that encryption source code was protected by the Constitution as “an expressive means for the exchange of information and ideas about computer programming” (see EPIC Alert 7.07).

The movie studios’ brief is available at:

http://216.110.42.179/docs/mpaa.appeals.brief.053001.html

The Electronic Frontier Foundation (EFF) brief is available at:

http://www.eff.org/IP/Video/MPAA_DVD_cases/ 20010530_ny_eff_supl_brief.html

The Sixth Circuit decision in Junger v. Daley is available at:

http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0117p.06

Author: EPIC

News Service: Electronic Privacy Information Center

URL: http://www.epic.org