Senator Charles Schumer
313 Hart Senate Office Building
Washington, DC 20510
(202) 224-6542

October 5, 2000

To the Honorable Charles Schumer:

As your constituent and as a professional member of the software industry, I urge you to repeal the Digital Millennium Copyright Act (DMCA), a law that was enacted in 1998. The DMCA represents an attack on free speech in the name of protecting copyrighted works. The act of distributing copyrighted information without permission is illegal and should stay that way. But the DMCA goes much further than this. Under this law [10 17 U.S.C. 1201(a)(2)], the simple act of writing instructions for circumventing a system to control access to a copyrighted work is illegal, even if no actual piracy has taken place or ever will take place.

The Senate voted unanimously in 1998 to enact this legislation. The act was meant as a simple measure to amend title 17, United States Code, to bring it into compliance with the World Intellectual Property Organization Copyright Treaty. At the time it was not clear that this act would have such dire consequences. But while the law has been on the books for over a year, its full impact on free speech is only now becoming apparent. There are several court cases making their way up to the Supreme Court, most notably Universal City Studios vs. Shawn C. Reimerdes. The August 17 decision in favor of the plaintiff by Judge Lewis Kaplan was a setback to free speech, and there is still hope that the higher Court will find on appeal that this terrible law is an unconstitutional infringement on free speech. But you have the power to fix this problem now by enacting legislation to repeal the Digital Millennium Copyright Act.

In case it is still not clear why this law is chilling, here is a parallel situation that involves more familiar technology. Several years ago, there was a well-known method for opening Master combination locks that exploited a design flaw in the lock. Using this technique to break into private property was always illegal. But printing up flyers with instructions on how to open those locks was protected speech.

Let's say a company somehow used these Master combination locks to control access to copyrighted materials. For instance, the company could distribute information in a box with a Master combination lock on it, and the reader would only be given the combination to the lock once he or she paid the owner a license fee to use the information. Under the DMCA, the previously protected speech describing how to open the locks would suddenly be illegal, even if it were never used by anyone to illegally gain access to the information. Even if you own the lock and own the material, there are still things that you are not allowed to do with them. Before the DMCA, this was not true.

Why is this chilling? This law poses a fundamental shift in how the law views the distribution of copyrighted material and fair use. Before the DMCA, if you bought a DVD and a DVD player, you owned it and you could do whatever you want with it. You could break it. You could throw it away. You could give it to a friend. You could even copy it from the DVD to videotape, as long as you kept the original around so you still owned a copy of it. And just as importantly, you could open up the DVD player and figure out how it works. You could even build your own DVD player if you felt like it. This is a process known as reverse engineering, and it, more than almost anything else, is responsible for the current computer revolution. (Microsoft MS-DOS, which started the PC revolution, was a reverse-engineered version of another piece of software. Clones of the IBM-PC, which made the PC cheap and widespread, were reverse-engineered versions of the original. Without these innovations, we would probably not have the modern software or personal computer industries.)

The DMCA changes this. For the first time ever, even if you own a DVD and a DVD player, there are things you are not allowed to do with them. You're not allowed to poke around inside them, figure out how they work, and then create your own version. You are not allowed to reverse engineer the DVD. Under the DMCA, all a company must do to make otherwise legal action a federal offense is to put in place a trivial system to protect the data contained in the medium. This is true even if the system is easily compromised. And this is what the court case is about: a single teenager in Norway named Jon Johansen created a program called DeCSS, which bypasses the very simple protection on DVDs. He then released the program for free, and it was soon distributed worldwide. Nobody had any idea that any of this was illegal. Similar programs have existed legally for years.

One of the people to distribute DeCSS was Shawn Reimerdes, who posted it on his web site, 2600.com. He was subsequently sued Universal City Studios under the DMCA. In his decision, Judge Kaplan went so far as to rule that not only is carrying a copy of DeCSS on a web site illegal, but simply linking to another, unrelated web site with the program on it is illegal. This is the Internet equivalent of making it illegal to talk about or refer to something that he deemed illegal. This is government censorship in its worst form, and it flies in the face of the First Amendment.

The irony here is that DeCSS is not a tool for the personal theft of movies. There are much easier ways to make copies of DVDs. The program was created because there is no DVD player that has been made for the Linux operating system, so Johansen wanted to write one. This software has perfectly legal uses, but because it can be used for illegal purposes the people who publish it are being punished. This law leads to a future in which all programmers are held responsible for the way complete strangers use their creations. Being a software author myself, I find that thought frightening and threatening.

There are already legal protections in place to protect trade secrets, copyrighted material and intellectual property. I agree with and support those protections. This law goes much further, criminalizing actions that have been fundamental in creating the modern computer industry and making constitutionally protected speech illegal.

It takes bravery and character to stand up for free speech, because when free speech is threatened it is always because that speech has deemed offensive or subversive is being censored. There is no doubt that some people will use the speech that is made illegal by this law to commit crimes of piracy. However, the law should concern itself with those acts of piracy. The fact that the speech itself is now outlawed is chilling.

Sincerely,
Andrew Stellman