Monday, May 07, 2007

The Slippery Slope of First Amendment Rights:

Although our constitution says Congress shall make “no law … abridging the freedom of speech, or of the press,” the courts quickly found commonsense exceptions, suggesting that it must be okay to pile up the exceptions ad libitum, forever, for whatever reason. (“Fire!” she said in the crowded theater.) I regard these exceptions as a terrible slippery slope; they inure us to the principle, which is to keep speech legally free. (Many, many exceptions have been loaded upon us recently, many in the name of stopping "terrorism.") We have an astounding free-speech war being waged on the web right now, and the first sad thing about it is that some lawyers will have to volunteer their skills for thousands of hours to take this case all the way to the Supreme Court, where it could go either way. The case of course, is the right of web sites that publish a sixteen digit number to be subject to criminal and civil prosecution according to the Digital Milleniuim Copyright Act, in order to protect the profits of a few large entertainment companies. Congress should have known better than to pass a law that so obviously, so clearly, conflicted with free speech rights, but so many laws have done that already, what was one more?

We now know that the DMCA allows movie producers to OWN integers and prevent anyone from mentioning them. How silly is this? Well that law protects anyone who creates and encrypts a work of art. Go to Ed Felton’s Website, Freedom to Tinker, where he tells you how to take ownership of an integer and give it to your mother on mother’s day. All you have to do is encrypt a little Haiku, and the DMCA then protects the code you used as an encryption. Felton suggests that you encrypt lots of numbers, so let’s take over ownership of the natural numbers!

Now frankly, I think it’s important to own some of the smaller, more useful numbers. Here’s love poem I wrote to my wonderful wife. I encrypted it with the number ZERO, and now it looks like this:


0.


Now I’ll admit that’s poor encryption, but the DMCA protects both good and bad coding; it even protected the atrocious and easily hacked encoding that SONY used on its CDs last year.

I’d like to leave you with one last, sensible point of view: When the 16 digit number that the MPAA wants to block appears on thousands of protesting web sites, it is protected by another aspect of the first amendment, and I hope the Supreme Court agrees with me. The US court of appeals has already recognized that utilizing the DMCA raises hard-to-call First Amendment issues, but this one is a doozy: The appearance of this code on many protesting websites has all the appearance of a movement, and is clearly protected “Political Speech”.
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