More Digging: Speech-Speech Tradeoffs
On the airplane on the way back from a conference Friday at George Mason on innovation and competition policy, I reread the Second Circuit’s opinion in Corley and I also read Henry David Thoreau’s 1849 speech on civil disobedience (available here and here and originally given under the title Resistance to Civil Government). There has been continuing discussion about the Digg revolt, the role of free speech and the First Amendment and appropriate scope of civil disobedience (see in particular posts by Ed Felten and Tim Lee). I would like to return to this subject and address some of the comments on my post on this last week.
Consider two angles: (1) the claim that consumers/users have regarding access to content on HD-DVDs and (2) the ability of a private party such as AACS LA to privatize a number, as it has effectively attempted to do in seeking to forbid posting of that number on the Internet.
Alas, unlike everyone else, I have not yet seen Spiderman 3. Even before the boffo box office this weekend, there has been speculation about Spiderman 4 and whether Sam Raimi, Tobey Maguire and Kirsten Dunst could be lured back for one more film. I don’t really do morality for a living—and don’t want to assert as a law professor some special, professional expertise as to morality—but I assume that no one seriously thinks that we have a moral claim that requires this group to make a fourth film. Nor would I think we would suggest that there is a powerful moral claim to see such a film in a theater. Someone who approached the theater to see Spiderman 4 and who refused to pay—or could not pay—would be turned away, and I assume we would think little of that.
The question then is why access claims somehow change as we switch from performance of the movie in a theater to distribution on a piece of plastic. If AACS LA implements a system that imposes limitations on that piece of plastic, some seem to find that limitation as what I can only describe as a moral wrong.
I just don’t see that. It is certainly the case historically that publication of the work necessarily brought with it a certain loss of control over the use of that work. Technology has now changed that and we are in the midst of the debate of whether publication with control—control at a distance—will be legal and technologically sustainable. I can imagine reasonable people disagreeing about whether that control is a good or bad thing, but I really struggle to turn the issue into a moral discussion given the lines we seem to draw easily about denying access to content in an earlier stage.
But switch back to the Digg revolt and focus not on access to content rights and wrongs but instead on private appropriation of public content, here AACS LA’s attempt to appropriate a number that had heretofore been available to all. There is something jarring about the notion that you can’t say a number or put it on your website. What right does anyone have to claim something available to all? When can you remove something from the public domain, and were that question not enough, how can we block speech about a number, given the First Amendment?
I don’t think that that analysis stands up. We have entire bodies of law that are about allowing private parties to claim special rights in symbols. This is precisely what we do in both copyright and trademark law. Both of these assign certain rights to one party in a symbol and exclude others from certain uses of that symbol.
I am not quite sure how to think about possible distinctions between numbers, words and symbols. I remember as a kid reading how Exxon was named. Dictionaries across the world were searched for words that didn’t exist, so that the company could have a simple symbol that didn’t have any associations with it in any language. No “no va”, which was Chevy’s problem when it attempted to export the Nova to Spanish-speaking countries.
Should we draw distinctions between something wholly made up and new—perhaps the Nike swoosh and Exxon—and something pre-existing such as a randomly chosen 32-digit hexadecimal number like the AACS key? I don’t think so. Trademark law worries about situations in which private parties claim symbols and shrink the expressive space that remains to others.
Qualitex (514 US 159 (1995)) is a leading example of this. That case addressed whether a color could serve as a trademark, in particular, a particular shade of green-gold used on dry cleaning pads. In concluding that a color could indeed serve as a trademark, the Supreme Court confronted the claim that the number of relevant colors was finite and that allowing a private party to claim a trademark in a color would leave too few colors for others. The Court rejected that argument on the facts of the case and yet noted that if the number of relevant colors had actually been quite limited, the Court might have reached a different result.
We might consider that idea here. The key in question runs for 32 digits, where we have 16 digits to choose from at each spot. That means the relevant number of combinations is 32 to the 16th power or 1,208,925,819,614,630,000,000,000 combinations. If every person on the planet—I’ll use 7 billion as that figure though the running U.S. census tally is closer to 6.5 billion—claimed 10 million of these numbers, the number of remaining unclaimed numbers would be 1,208,925,749,614,630,000,000,000, or, put differently, 99.99999421% would still be available. (Just for contrast, with a 26-letter alphabet, there are 11,881,376 possible five-letter words; just giving one of them away—“Exxon”—means that only 99.99999158% are left, a smaller percentage than before.)
We are not meaningfully shrinking the expressive space in protecting the 32-digit symbols claimed by AACS LA. We will undoubtedly see a rush of creative works—poems, songs and the like—devoted to the revealed AACS LA key; indeed, we are starting to see those already, just as we did with DeCSS. Look at those works and ask whether they would work as creative works with a different 32-digit symbol. The difference between those works with and without the revealed key strikes me as the relevant metric for assessing how much speech will be lost as a result of limiting the use of the revealed key. And if the AACS key was really the Golden Meme or the stuff that dreams are made of, we should have seen a flourishing creative culture surrounding it long before it was extracted from the HD-DVD system. I don’t think those works were out there.
But even if restricting the use of the key did diminish speech in some way, we would then merely be at the point of a speech-speech trade-off: we would give up some speech because we thought it enabled other speech. Giving up one freedom to get other freedoms is the basic stuff of social-contract theory—emergence from the state of nature to the state—where we accept some restrictions with the hope that effective freedom is enlarged.
I should circle back to Corley and Thoreau. The Corley opinion squarely faces the First Amendment issues raised in restricting speech about and linking to decryption tools. The court had the benefit of briefs from some of the best attorneys and law professors in the country, individuals well-versed in the First Amendment and intellectual property law. The result was a 3-0 opinion authored by Judge Jon O. Newman, a highly-regarded appellate judge. Disagree with the opinion if you want to, but it is hard not to think of it as being very much in the judicial mainstream. In the opinion, the Second Circuit noted that the First Amendment generally does not bar injunctions which prevent speech that provides instructions to commit illegal acts (citing cases relating to instructions for violating tax laws and instructions for building explosive devices).
Finally, I read Thoreau with the hope that he would provide a framework for assessing when civil disobedience was appropriate and when it was not. I don’t think his essay does that. To be sure, he draws some interesting lines. His focus in his 1849 essay is on slavery and what he labels the Mexican war (and note his description of that “the work of comparatively a few individuals using the standing government as their tool; for in the outset, the people would not have consented to this measure.”) Thoreau is quite clear on what he sees as the duty of civil disobedience in these circumstances: “How does it become a man to behave toward the American government today? I answer, that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave’s government also.”
At the same time, Thoreau seems quite skeptical that civil disobedience was warranted in what he describes as the Revolution of ‘75: “if one were to tell me that this was a bad government because it taxed certain foreign commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them. All machines have their friction; and possibly this does enough good to counter-balance the evil.”
This undoubtedly reflects Thoreau’s general disdain for worldly goods, but it is interesting that he finds the case for civil disobedience in 1775 so weak. I would think that slavery and wars thought to be illegitimate to be core cases where civil disobedience was appropriate. I am still interested in reading a more general framework for assessing this if you have suggestions.