Battling Censorware

The Standard has a great round up on the battle between Mattel and two hackers, Eddy Jansson of Sweden and Matthew Skala of Canada who wrote CPHack, a program that lets people see a list of the sites that Cyber Patrol blocks. This is a very important case, it has issues in The DMCA, the freedom to link, copyright law, the First Amendment, and other info science interests.

\"The argument rests upon the anticircumvention provision of the Digital Millennium Copyright Act. The DMCA prohibits trafficking in devices whose primary purpose is to circumvent a technology meant to protect copyrighted works. CPHack would constitute such a device; mirroring it, as the law has been interpreted, would constitute a violation of the DMCA. So Mattel could prevail against distributors of CPHack whether or not the program itself was a violation of Mattel\'s copyright.\" In each case, the underlying use of the copyrighted material is not a violation of the copyright law. In each case, the use would either be granted, or considered \"fair use.\" Copyright law does not limit the rights of the purchaser of a DVD movie, or an e-book, to play it on a certain machine. Nor would it limit (in my view) the right of a user to reverse-engineer a program to discover what sites that the program he has purchased is blocking. But liability under the DMCA does not depend upon whether the use of the copyrighted material is improper. The only question under the DMCA is whether the tools allow a person to get around the protection system.


The DMCA thus reaches more broadly than copyright law, and here then is the emerging conflict. Remember that slogan of copyright lawyers: There is no free-speech problem with copyright law so long as there is room for fair use. Before an act of use can constitute a copyright violation, the court must consider whether the use, in the context, is fair.

But the DMCA admits no such limitation. The question the anticircumvention provision asks is simply whether the copy protection can be avoided. Therefore, code that cracks a protection device is criminal under the DMCA even if the use of the copyrighted material that the code enables would be fair use.

There is something wrong in this. Copyright law is limited by the Constitution – it is a law regulating speech, and the First Amendment regulates laws regulating speech. Code that protects copyrights is not necessarily limited by the Constitution; code, Lessig notwithstanding, is not law, even if it functions like law.

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