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more on decryption as free speec
this from economist magazine (august 4, 2000)
IN ONE of the more chilling scenes of George Orwell's "1984", the citizens of Oceania
gather in a cinema to denounce Emmanuel Goldstein, a political dissident, as "the Enemy of
the People". In New York, for the past two weeks, a team of Hollywood lawyers have been
doing much the same to Emmanuel Goldstein, an Internet journalist.
Mr Goldstein, who was born Eric Corley, is the editor of 2600: The Hacker Quarterly. He
posted on his newsletter's website a code known as DeCSS. This code undoes the encryption
technologies that protect a digital video disc from being copied. The Hollywood studios
are therefore accusing Mr Goldstein of helping to pirate their films, their copyrighted
intellectual property. He says he is upholding freedom of expression.
The DeCSS code has already had a brush with the law in Europe. Earlier this year,
Norwegian police raided the house of one of DeCSS's creators, a 16-year-old called Jon
Johansen, and confiscated his computer equipment. And Hollywood's case looks solid: a
provision of American copyright law prohibits any "circumvention" of anti-copying
encryption technology. But legal experts say there are broader issues at stake.
As Jonathan Zittrain, a law professor at Harvard, points out, copyright is itself a
restriction on free speech; most people support it only because it encourages publishing.
Part of Mr Goldstein's defence is a technical one (he claims that DeCSS also has "fair"
legal uses, including reformatting video discs for viewing on other sorts of machines).
But his case also brings up two issues about freedom of speech in cyberspace.
First, Mr Goldstein did not create the code himself; he merely put the code on his website
and provided links to other websites where it could be found. That, argue his lawyers, is
an act of pure reportage and is protected by the first amendment. Second, the source code
that makes up DeCSS may itself be a form of speech. In April, an appeals court in another
jurisdiction found in favour of Peter Junger, a law professor who had posted the code for
encryption software on the Internet, in violation of American export controls. The court
found Mr Junger's code "an expressive means for the exchange of information and ideas
about computer programming", and so protected by the first amendment as surely as music,
art or poetry would be.
The Junger decision is not a binding precedent in the Goldstein case, which goes on next
week. But, if Mr Goldstein loses, the law would seem to have made an odd distinction: code
that encrypts, like Mr Junger's, would be freer than code that decrypts, like Mr
Goldstein's. Truly Orwellian.