[iwar] [fc:A.Cold.Look.at.Chilled.Speech]

From: Fred Cohen (fc@all.net)
Date: 2001-10-03 13:09:15

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From: Fred Cohen <fc@all.net>
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Date: Wed, 3 Oct 2001 13:09:15 -0700 (PDT)
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Subject: [iwar] [fc:A.Cold.Look.at.Chilled.Speech]
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A Cold Look at Chilled Speech
By Mark Anderson 

2:00 a.m. 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, 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 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 &amp; Certification Act" (SSSCA) 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 U.S. 
Supreme Court's decision on New York Times v.  Tasini, 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. 

"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 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."

------------------
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