A New Trend?

Maybe this will lead to a First Amendment challenge of the Digital Millennium Copyright Act (DMCA). Here’s the highlight:

U.S. Justice Department said Wednesday it had seized a rogue Web site that offered information on bootlegged video games and movies, as the owner faces sentencing for copyright violations.

Note that the siezed site offers information on bootlegged games and movies, not the actual bootlegged games and movies. This is one of the more egregious consequences of the DMCA, making it illegal to talk about ways that copyrights can be broken. It’s long been legal to say “they sell crack down on 12th street” while being, of course, illegal to go down to 12th street and sell crack. The DMCA makes the online version of this speech illegal. This is problematic on principle (1st amendment) and problematic on practical grounds. A number of activities proscribed by the DMCA are “dual use”. For example, the controversial DeCSS program (code that hacks DVD encryption) was not originally written for piracy purposes, but rather because DVDs could only be played on PCs running MS Windows…a clever programmer wanted to play DVDs that he legally purchased on his Linux computer.

The recent Eldred Decision by the Supreme Court (ruling in favor of the Sonny Bony Copyright Extension Act) may not bode well for a challenge to the DMCA, but my lay opinion is that Eldred was less clearly based in free speech than something like this. (The cynical view of Eldred is that everytime Mickey Mouse is about to become part of the public domain, Congress extends the length of copyrights).

This may also represent a disturbing new trend in the seizure of web sites by the government, which then redirects visitors to a government site. As TalkLeft points out , redirecting visitors likely entails a log of all IP addresses that visit the original site. Nice.


Postscript on Eldred:

Eldred was premised on the idea that “strong intellectual property rights encourage innovation”, but this argument only looks at half the equation, the marginal benefit of innovation. As Isaac Newton remarked once, “”If I have seen far it is by standing on the shoulder’s of giants”. Under a strict intellectual property rights regime, standing on giants’ shoulders becomes a much more expensive proposal (license fees, searches, tort exposure). So such a regime increases both the costs and benefits of creative activity; the net effect on innovation is therefore ambiguous. Given this ambiguity, maybe deference to the language in the constitution would be wise:

The Congress shall have the power. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries]. . .[Art. I, Sec. 8, Clause 8].

I was suprised at the ruling because of the self-proclaimed “strict constructionalist” philsophy of the justices who ruled in favor of copyright holders (Stevens and Breyer dissented strongly). It’s very difficult for me to see life+70 years as satisfying the “for limited times” language.