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.

Comments

[Earl Stevens]

A very thoughtful in interesting point, which generated these thoughts:

* I think it is relevant that, when thinking about trademarking words and colors, context is very important. With respect to the Qualitex case, I suspect that if someone was to apply the trademarked color to a cereal box, Qualitex would not complain. Furthermore, if Qualitex were to bring a suit, I suspect that the ruling would not come down in their favor, but I do not really know anything about legal interpretation, so I am purely speculating. What's relevant here is that it's not even necessary for AACS LA to trademark the use of this particular number. What they are concerned with is the combination of that number along with a reference to the fact that it is related to their encryption scheme. I can't imagine that they would have any issue with any real "use" of the number, unless it was presented in such a context. This analogy does not extend well to your Exxon example.

* I think you are mistaken when characterizing the position against DRM protection on HD-DVD as a general moral argument against copy protection. Granted, many people who actively pirate copyrighted material, and who were probably heavily involved with the Digg campaign, are probably not particularly concerned with copy rights to begin with. However, I think there is a legitimate concern here, and that is that, to date, DRM schemes for digital media have been technical failures. Many of the audio CD DRM schemes that have been introduced have had the unfortunate side effect of rendering CDs unable of playing in all standard CD players. Almost all DRM schemes have the consequence of no longer allowing the user to make personal use copies, for transport, backup purposes, etc. Granted, this privilege is also often abused with regard to digital content. The real complaint is that much of this "crippling" of the content occurs without any meaningful notification to customers. The customer who has been buying CDs for fifteen years should have the confidence of purchasing any CD and trusting that it will play in any regular CD player. In the sense of serving the customer's needs, many of applications of DRM have been disingenuously executed, and I believe that is the complaint.

[Doug Lay]

The moral argument isn't about the right to watch a film. It's about the right to control what we do with our own computers. To many of us, the right to program our computers as we see fit is an intrinsic component of free speech.

[mrshl]

Thanks for elaborating on your post last week. My comments on that last post were largely aimed at the feasibility of enforcing the DMCA claims at issue. In the face of a large-scale revolt like this one, having the law on your side isn't much help.

You may wonder whether civil disobedience is appropriate or justified here, and what it's based on (moral right to fair use? infringement? speech?). But to me what matters is that lots and lots of people drew a line in the sand. Most people would agree with the right to protect films from free riders and infringers. The law might also let you claim 16 digit number, and to keep it unpublished. But the internet interposes the powerful ability for people to decide for themselves when such a claim becomes unacceptable. Perhaps the AACS will fight back, even against this multitude. They've said they will.

Whatever happens, I don't think the dialogue is unwelcome or inappropriate. It's necessary if we are to figure out how we treat sites like Digg and YouTube in the wake of the storm. What do they do when compliance with the DMCA becomes exceedingly difficult or impossible? Does the site have to kill itself to comply? If millions of mouthpieces are all in violation do we have to wait until the appropriate filtering technology is in place and can determine, in real time, what can be said and what cannot?

I think some balancing is in order.

[Leif]

Prof. Picker,

Insightful and interesting comments as always. I just wanted to point out that the "no va" story is merely a popular, yet untrue, urban legend:

http://www.snopes.com/business/misxlate/nova.asp

[orcmid]

I'm with Earl Stevens on this: "What they are concerned with is the combination of that number along with a reference to the fact that it is related to their encryption scheme."

The business about owning a number is spurious and it baffles me what led Felten down that road. It is its presentation as part of a means of circumvention that matters.

This leaves me curious about the nature of the take-down letter and the statutory authority that was claimed for the letter: http://blog.digg.com/?p=73

[Randy Picker]

In looking at the comments, I noted that I inverted the initial math calculation. It isn't 32 to the 16th power; it is 16 to the 32nd power (or, equivalently, 2 to the 128th power). That means that the number of possible keys is much larger than I was suggesting (3.4 x 10^38 rather than 1.2 x 10^24) and that means that the loss of expressive space if AACS LA claims millions of keys is that much smaller, though it was vanishingly small before.

[Doug Lay]

This could be relevant:

T. H. Breen. The Marketplace of Revolution: How Consumer Politics Shaped American Independence. New York: Oxford University Press. 2004. Pp. xviii, 380. $30.00.

[nedu]

"What [AACS LA is] concerned with is the combination of that number along with a reference to the fact that it is related to their encryption scheme."

Earl,

If the AACS LA was concerned with the publication of the _fact_ that a particular number is related to their encryptation scheme, then they shouldn't have published that _fact_ themselves in the first place.

Once the AACSL published the _fact_, then they lost any credible claim of secrecy. Their subsequent attempt to use the force of government to restrict further publication of the _fact_ resembles a copyright claim. I say "resembles" because it's manifestly defective --even frivolous-- as a copyright claim.

Attempting to recast their claim as a trademark claim is even more ludicrous. At it's core, trademark law regulates deceptive speech in a commercial context: It prohibits falsely passing your goods in commerce off as the goods of another. Whatever your views on the exact status of false, misleading or deceptive commercial speech, Congress does have an anchor in the Commerce clause for federal trademark law.

But the real crux of the AACS LA complaint is that they really, really wanted to keep this number secret, but had to go ahead and publish it. Then they got steamed when someone else noted their voluntary publication of the _fact_.

[Dave]

I'd like to focus on the claim in both of Randy's very interesting posts that there are certain categories of laws that are simply inappropriate subjects of civil disobedience. Does this kind of categorical analysis work as a way of thinking about the appropriateness of civil disobedience as a theme in the Digg furore (and, earlier, with deCSS and 2600.com)?

To begin with, what would an unobjectionable object of CD be? I think we can agree that race-based restrictions on participation in public and social life would fit this category. Here I'm thinking of the kind of laws and practices that Gandhi and Martin Luther King resisted--segregated lunch counters or passenger trains.

On the other hand, the suggestion (both Randy's and Thoreau's) that laws effecting economic regulation are inapposite objects of CD. So a law that increases duties on banana imports, however much Chiquita and other growers don't like it, can never justify CD as a response, because it doesn't raise the moral problems of, e.g., racially discriminatory laws or social practices. The remedies in this setting have to be through normal democratic, not extra-democratic resistance.

The first point this raises is whether the distinction between laws with a strong moral overtone and laws that are purely economic works in general. Kelo illustrates the difficulty of this distinction. The redevelopment in that case was passed with solely economic goals in mind, but the parties affected (as well as the interest groups that helped make the case a national controversy) saw the matter in moral terms. The idea that takings are justly compensated does little to satisfy the property rights movement, because they see the act of taking as imbued with (im)moral overtones that can't be solved simply by a resource transfer.

But the fact that the distinction between laws with deep moral flaws and ones that merely implement an economic regulation doesn't work in all cases doesn't mean it isn't applicable here. Randy's position is that the restriction effected by the encryption key is nothing more than economic regulation, falling clearly into the latter category and thus inappropriate as a subject of civil disobedience. After all, makers don't have to release any content into the stream of commerce that they don't want to, so how is this any different?

In a way the answer is embedded in Randy's post when he invokes the First Amendment. Economic regulation generally doesn't affect speech, but some of it does and where it does courts often subject those regulations to higher scrutiny given the Constitution's speech protections. The effect of DRM and related restrictive licensing provisions may have largely economic aims--attempting to reduce piracy and protect all revenue streams--but it also has the effect of shutting down academic dialogue by precluding the ability to access source code, as well as restricting second-generation creative work such as remixes, mash-ups, and the like. These are unambiguously speech acts, and the effect of the DMCA on this kind of conduct takes it out of the realm of purely economic regulation and into the category of regulation that sufficiently implicates individual rights that makes it a possible object of civil disobedience.

I say "possible" object because the final question is whether the DMCA as applied in the AACS encryption key case actually restricts speech in a meaningful way. For many of the reasons mentioned in this post and elsewhere, I don't think it does, and so I think much of the Digg.com controversy was overblown. But I would stop short of saying that this kind of regulation is merely economic and thus purely divorced from the kind of individual rights concerns that we typically associate with laws that may warrant civil disobedience.