DVD Case: More of The Same?

UNIVERSAL CITY v REIMERDES deals with a journalist's linking to a site where the object code to decrypt DVDs, technology illegal by federal law as a method of stopping copyright infringement, could be found. Though "it would be inconvenient, inefficient and, for most people, probably impossible to" use, the code was already known to many people (i.e. it was in the open domain), and useful in the journalist's story of such decryption technology, he was charged with violating the law. Compare this to cases where journalists were allowed to print national secrets and secret (and sensitive) crime details involving minors and rape victims if it fell (even accidently) into the public domain. As discussed here freedom of the press issues combine with other First Amendment troubles in this case.

Nonetheles, as discussed here can it be said that in general such technology can be blocked to protect copyrighted DVD material? The core of the opinion is that computer code has "nonspeech and speech elements, i.e., functional and expressive elements," which should be good news in part to those concerned with computer issues in that computer code is recognized as a form of speech. Though the decision appears to be not that concerned that this is not a run of the mill copyright infringement case but a journalist noting information already out there, it does respect the complexity of speech ... up to a point. The case however turns on the nonspeech aspects of code, namely:

In other words, limitation of technology in this case is not motivated to limit speech. Compare it to a lock on a library door that a desperate reader cannot break to read a book when it is closed (the government calls the technology involved here a "a digital crowbar"). A core problem I have with the opinion is that the means of accessing and enjoying speech surely has First Amendment implications, including putting into question hindrances to such access. Can the government outlaw tape recorders because of their potential as copyright infringement tools? As with Napster, as noted by Julie Hilden's previous noted essay, such DVD technology has valid and useful purposes aside from copyright infringement. And, unlike the opinion, I have a problem with avoiding the issue by saying we do not have the right to access our speech in the best possible (legal) way.

As with Napster, the "cat out of the bag" (in the words of the Court, "widely available on the Internet")issue can not be ignored. The technology is out there, which surely mitigates the "crime" involved here, especially with the journalistic issues. The fact that the information helps criminal activity is not really an issue, any more than books that use information in the public domain in ways that might help those who pick locks, use firearms illegally, and poison people. As suggested by the certain briefs, but dismissed as impractical by the opinion, technology is out there to block use of the technology to make more than one copy (one copy for personal use has many legal uses). Did not Natalie Imbrugulia recently put out a CD in a format to make copying difficult? Seems a better bet than ignoring the true breadth of speech interests, including of journalists, involved, and again singling out one person or group when so many others continue using the information without concern for prosecution.

Yes, protecting encrypted material is an important issue. Furthermore, as noted, this is not a run of the mill case, though the Court appears to treat it as such. Nonetheless, a proper concern for free speech as well as the realization of the limitations of blocking information present in the public domain, must be shown as well. Such concern would lead us to lean to the defendant in cases like these that have special circumstances. The same would be the case for various types of personal use that technically breaks the law at issue (e.g. how about short clips from DVDs put on web sites like mine; should we worry so much about such nonprofit uses?). Finally, if we are going to try to keep the genie partly in the bottle, we have to recognize the choices we are making. Only by recognizing the burden on speech, perhaps justified in certian copyright cases, will such balancing truly respect the competiting forces involved.