Wired: A Cold Look at Chilled Speech

[Owen Blacker]

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http://www.wired.com/news/print/0,1294,47195,00.html

| A Cold Look at Chilled Speech
| By Mark Anderson
| 2:00 am  Oct 3, 2001 PDT
|
| When he finished his manuscript on copyright protections in the 
| digital age last Thanksgiving, Siva Vaidhyanathan knew some things 
| would change before its Oct 1 publication date.
|
| Then came a Tuesday in September.
|
| Questioning copyright policy may seem only a distraction with the 
| World Trade Center a heap of rubble. But if issues such as freedom are 
| truly at stake, what prouder freedom do Americans proclaim than that 
| of free speech?
|
| His book 
| <http://www.nyupress.nyu.edu/authbook.msql?$string&book=0814788068>,
| Copyrights and Copywrongs: The Rise of Intellectual Property and How 
| It Threatens Creativity, presents a clear and historically based 
| argument against the push to transform American intellectual property 
| law into a new zone of zero tolerance.
|
| With Americans appearing to welcome Big Brother -- in some form -- if 
| it means better protection against terrorism, Vaidhyanathan's book 
| arrives at an interesting time.
|
| "It's hard to ask people to pay attention to the state of music in 
| America right now," Vaidhyanathan said. "However, the larger issue is 
| about the richness of our democratic culture."
|
| As more and more "speech" goes digital and as those digits get locked 
| down with increasingly stronger clickwrap -- copyright and copy 
| protection measures -- speech faces the very impediments the 
| Constitution's framers took pains to avoid, Vaidhyanathan says.
|
| "It's very clear that reckless copyright enforcement can chill 
| speech," he said. "The message of my book is that we've gone too far. 
| There are ways in which the copyright system becomes an engine for 
| democratic culture. But once you increase the protection to an absurd 
| level, you end up having a negative effect on this process."
|
| One day before the attacks, all systems were go 
| <http://www.wired.com/news/politics/0,1283,46671,00.html> on the 
| souped-up revision to the Digital Millennium Copyright Act -- a bill 
| that proposed to outlaw any digital electronic device or PC that did 
| not have copy protection hardwired into it.
|
| After the attacks, a shift in priorities came that leaves the 
| "Security Systems Standard & Certification Act" (SSSCA) 
| <http://www.wired.com/news/politics/0,1283,46655,00.html> in limbo. 
| Communications Daily now rates the chances that the SSSCA will even 
| show its face on Capitol Hill anytime this session as "unlikely."
|
| That suits Vaidhyanathan just fine.
|
| "The bill as written is so sweeping that it would outlaw Linux -- or 
| any sort of open-source activity," he said. "It would require us to 
| fundamentally change the nature of the personal computer.
|
| "It seems like a really short-sighted policy proposal, and I can't 
| imagine that the personal computer industry is going to stand by and 
| let this happen."
|
| Another development that appeared too late to make the book was the US 
| Supreme Court's decision on New York Times v Tasini 
| <http://www.wired.com/news/politics/0,1283,44736,00.html>, a copyright 
| case that recognized print journalists' right to compensation when 
| their work is republished on the Web.
|
| Vaidhyanathan was "agnostic" about the ruling, especially concerning 
| Justice Ruth Bader Ginsburg's majority opinion 
| <http://supct.law.cornell.edu/supct/html/00-201.ZO.html>.
|
| "I really didn't like the fundamentalist tone of Justice Ginsburg's 
| opinion," he said. "She dismissed any appeal to a greater public good 
| in matters of copyright and she made it seem that copyright is only a 
| matter of private -- not public -- interest."
|
| On the other hand, Vaidhyanathan hopes the tone set in Justice John 
| Paul Stevens' dissent can carry forward into future rulings -- and 
| laws.
|
| "Justice Stevens actually wrote one of the most historically informed, 
| nuanced and reasonable opinions 
| <http://supct.law.cornell.edu/supct/html/00-201.ZD.html> I have ever 
| read about copyright," Vaidhyanathan said. "He basically said that 
| copyright is for the public, and we have to take the effects of our 
| decisions into account. It can't just be about the interests of the 
| copyright owners."
|
| Copyright (c) 1994-2001 Wired Digital Inc. All rights reserved. 
| <http://hotwired.lycos.com/home/copyright.html>

- -- 
Owen Blacker | Senior Software Developer and InfoSecurity 
Consultant See http://www.owens-place.org.uk/pgp.html -- more 
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- --
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temporary  safety deserve neither liberty nor safety 
- --Benjamin Franklin, 1759

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