Lawrence Lessig on the DMCA and Free Software
LWN spoke with Professor Lessig after his keynote address at the August 2001 LinuxWorld Conference in San Francisco.
Should free software authors fear being arrested in the same fashion as Dmitry Sklyarov was for writing proprietary code?
I don't think they should fear it. I think that the government strategy is now clear. They intend to make Sklyarov a scapegoat; have a couple prosecutions under the DMCA. Once they succeed in getting pretty severe penalties against Sklyarov they'll count on that scaring the rest of the people away. Right at this minute, I don't think they will be pushing any other prosecutions.
Code [Code and Other Laws of Cyberspace by Lawrence Lessig, Basic Books 1999] says that open source can be a strong offsetting factor because there is no choke point. Have subsequent events changed your opinion?
No, I still think that that is true. Whether it is likely that open source or free software will have that effect is a much more doubtful question right now. I think that things have gone pretty well up to this moment. The real fear is that the next layer of struggle, at the network layer, will have a profound tilting effect away from open source projects. If that is true then open source won't continue to provide an opportunity to check improper power.
Do you believe the first amendment is going to be effective for the defense of people charged with programming crimes? Is code speech?
In some sense the first amendment is a very important part of the battle. It is too crude to say that because code is speech, code can't be regulated. I told [in my keynote speech] the story about Alice Randall's book The Wind Done Gone. Nobody doubts that The Wind Done Gone is speech. But it was permitted that it be regulated even though it is speech. It turns out that the first amendment is a very complicated doctrine. It will provide some support but it won't immunize code from regulation. That is that real reason it is important to get people to understand the principle so that they don't pass bad laws.
What do you think should be done to counter Hailstorm? Is there a chance for an open source alternative?
If the government succeeds in bringing about the kind of remedies that I think are necessary in their current case [against Microsoft] then in principle Hailstorm could create a platform for lots of different implementations including open source implementations. I think the real danger turns out to be at the authentication level. The existing Passport architecture provides a very tied and centralizing type of authentication technology that will be the real wedge in driving adaptation. The real objective of the government should be to assure that it is not architected so that there is just that one single mode of authentication available but that it's a platform for authentication were enabled.
After the arrest of Dmitry one of our readers, Richard Simpson, wrote from the UK with a chilling analogy to the extension of US jurisdiction in that case. Ali is a second generation US citizen living in California. He is keen home brewer and runs a home brewing web site with recipes in English and Arabic. One day he visits some relatives in Saudi Arabia. On arrival the Saudi police arrest him because his US based web site breaks Saudi law. It that a fair analogy to the extension of US jurisdiction over Dmitry?
It is close. We should be thinking of this kind of analogy. The one difference in Dmitry's case is that it wasn't just that there was a passive web site available. The government would argue that Elcomsoft took steps to distribute their software into the United States. It is that affirmative effort at distribution in the United States that gives ground for the jurisdiction. Now some countries or some jurisdictions have taken the view that even just passive web sites could ground jurisdiction. But I do not think that will ultimately be the law.
The DMCA anticircumvention provisions would appear to conflict with laws which protect reverse engineering in Finland and other countries. Will successful defense of the DMCA in the US courts likely drive flight of intellectual capital to those countries or other similar havens?
There is a long history of regulations in the encryption area driving encryption research out of the United States. Canada has been a direct beneficiary of the fact that researchers find they can't successfully research in the United States and so they go to Canada.
I think the same thing will happen with respect to the DMCA. Just as we think that the DMCA should not have extra-territorial effect, the government's view would be that the Finish laws which protect reverse engineering shouldn't have extra-territorial effect. The option will increasingly be, ok just don't distribute to the United States. That will make copyright holders happy but it will slow development and innovation in the context of security.
Do you view the current composition of the Supreme Court as a favorable climate for judging the constitutionality of the DMCA?
Yes, although I hope that the court thinks of some other questions before it gets to this particular [Dmitry Sklyarov] case. I'd rather have them think about the Eddie Felton case before they think of the 2600 case. I'd also like them to think about the case I'm involved with, challenging the copyright term extension act, before they think about this case.
What they have to keep in perspective, which they historically have done a good job at, is the radical expansion in intellectual property protection . Their job ultimately is to assure that the balance is not lost because it is clear that congress has no interest in striking a balance.
Dmitry potentially faces 25 years in a US prison. Isn't this punishment substantially more severe than for first time violent offenders committing such horrendous crimes as rape and armed robbery?
It certainly is. In Europe a murderer could go to jail for less than 25 years. But you have to understand the way American prosecution functions here. It is as much about sending a message as it is about giving a fair punishment. I don't see how anybody could think this punishment is proportional to his harm. He didn't create a web site that distributed illegal content. He wasn't a pirate. He wasn't making money off of this. He's just a programmer working for a company that sells a product that enables people to do things with their Adobe ebooks that Adobe itself doesn't want to permit. That's a pretty tiny violation in the world of things. To say that merits 25 years only makes sense if you think that its real purpose is about making sure other programmers don't code in this space.
Given your previous answer, isn't the US Justice Department's selection of Dmitry Sklyarov as the first case to prosecute with high visibility seem awfully strange?
Yes, I don't think it was well planned. I think what happened was they were acting on behalf of Adobe then they didn't want to seem like they were acting on behalf of Adobe. So once Adobe said "This is a mistake.", they were not able to say, "This is a mistake.", they had to act as if it was a serious prosecution. You would hope that there would be somebody in this business who was big enough to say "a mistake has been made here, let's just forget this." So far there hasn't been that sort of person in the process.
Do expect a very slow resolution of Dmitry's case?
Yes I do. We shouldn't minimize what that means. This guy is separated from his wife and very young children. He had a life in Moscow with some success as a programmer for a company trying to make an honest living. That he is separated from his family, unable to live and work for the next couple of years until this thing resolves is extraordinary.
If he is convicted the standard practice is that he serves his jail time while the appeals go on. He would then be locked up in jail for the year or two years before any court could review the constitutionality of this statue under which he is prosecuted.
I think a lot of people thought this was such an extreme and outrageous case when they first heard of it they didn't believe this guy was really going to be subject to prosecution. I think it is slowly dawning on people that our government is going to lock this person up for a substantial amount of time way out of proportion to any harm that he has done.
So the chances of just ignoring this horrendous act and that is will go away are fairly remote?
Yes, it is not going to go away. If I were President Bush or Attorney General Ashcroft I would think this would be a great opportunity to show bigness and just put the case aside.
The fact is there are plenty of cases of piracy that ought to be prosecuted. I even think something like the DMCA that protects adequate space for fair use and doesn't attempt to regulate technology directly is needed. Something, for example, that said that if you use a cracking technology in committing a copyright violation then there is an enhancement to your penalty. That is a completely legitimate form of regulation.
The problem with the DMCA is that is just too extreme. It doesn't protect fair use. It basically bans all tools that can have legitimate as well as illegitimate uses. It is that extremism that is the problem here. At some point the system has got to have a rational actor in it but so far there hasn't been that.
You earlier mentioned that free software authors shouldn't fear being arrested in the fashion Dmitry was yet you expect at least one or two more targets in the next year?
Yes. They have leaned not to arrest professors, which is a good thing for professors. I doubt Linus Torvalds will be arrested. I'm sure their next case will be a real pirate not somebody like Dmitry who wasn't a pirate in any sense. There are people who are taking content, stealing it and redistributing it for money outside of the proper system. Those people should be prosecuted. I think those will be the next couple of people that will be prosecuted. That they didn't attack one of those people first is really the bizarre feature of this case.
Do you have anything else you would like to add for the developer community?
There is a story about complicity here. You sit back and don't do anything while these changes are happening you are complicit in those changes. I have all the respect in the world for the developer community that gave us the internet and that continues to give us Linux, Apache and other open source and free software products. But I'm increasingly frustrated at the apathy in the face of the dismantling of this system of freedom. It is your job to do something about it.
Thank you very much.
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