Circumvention: Tool for Freedom or Crime?

by Brett Burney

Is circumvention a tool for freedom or crime? Thursday's session discovered that there are only a few answers to this question, and they are far between.

The session was well attended and the panel (Robin Gross, Declan McCullagh, Paul Schwartz, Barry Steinhardt, and organizer Alex Fowler) expanded to include John Gilmore, Pam Samuelson, and Jessica Litman. Questions from the floor came from lawyers, techies, and a librarian.

Fowler started out the discussion by allowing Robin Gross, staff counsel for the Electronic Frontier Foundation, to discuss her work on the DVD/DeCSS case. She explained that two of the four cases involving the DeCSS utility hinged on the new Digital Millennium Copyright Act (DMCA). There are two main sections of the DMCA under fire in these cases: 1) the act of circumvention and 2) the creation and distribution of tools that allow the act of circumvention. Panel members pointed out that the second section is no longer an intellectual property issue. Rather, it is a free expression issue given that it is a general prohibition on distribution. However, Gross pointed out that the question remains one of intellectual property simply because there is a potential for copyright infringement.

Barry Steinhardt of the American Civil Liberties Union spoke on the CyberPatrol case. The "tool" in this case was a little program called cphack that 1) allowed users to unmask the list of sites that were blocked by the CyberPatrol program and 2) allowed users to discover hidden passwords. Schwartz pointed out that the significance of this case lies in that it did not involve piracy nor the obtaining of illegal copies of CyberPatrol, rather, the circumvention of certain protections.

Paul Schwartz, an expert on privacy from the Brooklyn Law School, talked about the "quasi-public privacy exception" section of the DMCA. This subsection apparently allows users to circumvent technologies in order to protect their privacy. Pam Samuelson pointed out that if this subsection does indeed allow users to circumvent, other parts of the DMCA prohibit you from creating a tool to allow you to do the circumventing! Samuelson continued that the DMCA appears to be "rife with contradiction" and "totally incoherent." Taking her argument, one could read into the DMCA an embedded right to create the tools, but then a person would still be prohibited from the actual distribution of such tools.

Lastly, Declan McCullagh from Wired News spoke briefly on the difficulty of getting the general public interested in cases involving intellectual property. While he did say it that was possible to get an editor interested in such a story by using creative and catchy headlines, he argued that the general public is not motivated enough to get involved in issues and cases that will affect it more than it realizes.

The session was very enlightening and interesting. Several questions posed difficult but contemporary problems that the panel could not answer, simply because there was no answer. Pam Samuelson noted that she had spoken with several writers of the DMCA and they had purposefully left sections ambiguous so that they could be worked out later in the courts. We can only hope that the right cases land in the right courts and that the question of "freedom or crime" is answered correctly.