Is software a form of free speech?
by Clive Thompson
Free speech always gets more confusing with each new technology. Whether it was
moveable type, the radio, videotape or the Internet, every new medium has caused
ever more debates about the legal protections for speech.
Now we can add yet another wrinkle. Because a trial underway right now is posing
an unusual question -- is computer code a form of speech? And if so, should it
be protected under the First Amendment?
Here's the background. Last year, a 14-year-old Norwegian kid named Jon Johansen
decided he wanted to view DVD movies on his Linux computer (Linux, of course,
is the infamous anti-Microsoft operating system). But since Linux has only a very
small market share, the movie industry hadn't bothered to license any DVD-player
software for the platform.
So Johansen and two friends decided to program a DVD player themselves. DVDs are
encrypted to prevent copying, so the three hackers had to break the encryption,
and build this into a software tool. Within a few months, they had working computer
code that did this -- called DeCSS. They posted it on the Net, and eventually
the Eric Corley, editor of the hacker magazine 2600, posted it on his web site
Movie industry officials, as you would expected, went berserk. As far as they
were concerned, DeCSS was a pure piracy tool; it allowed people to decrypt and
copy DVDs illegally. So they sued Corley (and three others), hoping to squash
DeCSS forever, and prevent the code from being disseminated further.
Which is where things get interesting. Because last week, Prof. David S. Touretzky
-- a computer scientist at Carnegie Mellon -- took the stand to argue that disseminating
the software ought to be protected under the First Amendment. Software, he claimed,
Why? Because writing software isn't just about making tools. It also has expressive
elements. It's a way of talking about a process, a way discussing how to do something.
"If the court upholds this injunction, what would happen is that certain uses
of computer language -- my preferred means of expression -- would be illegal,"
To illustrate his point, he showed a "gallery" of the DeCSS computer code in different
formats. It ranged from a layman's description of how the code works, to the source
code printed on a t-shirt, to the actual, prototypical chunks of the code itself
Any experienced coder, he noted, could take the plain-language description and
turn it into a workable program. So does that mean you should ban people from
even *talking* about DeCSS? Where do you draw the line, and why?
Granted, society draws these lines all the time. You can't yell "fire" in a crowded
theatre; you can't make jokes about bombs in an airport. So it's plausible that
we'll need to work this out for computer code too.
Either way, the judge said he was impressed by Touretzky's arguments. Which is
why we ought to keep close watch as this case unfolds; it just transformed from
a bitter, Napster-like fight into an amazingly important philosophical debate.
Free speech -- brought to your desktop.
Copyright (c) 2000 Clive Thompson. Originally appeared in Newsday, August 6, 2000.