October 14, 2003

The DMCA As Seditious Libel

[See also previous The DMCA As Technical Obscenity]

Continuing the repercussions of SunnComm having threatened to use the DMCA to sue Princeton student Alex Halderman over his research), Ed Felten just commented (noting my previous post):

It seems to me that an accurate, truthful research report has more merit, rather than less, if its results are relevant to a public policy debate.

Which reminded me of something Lessig recently wrote:

I'm sure there will be a world of legal support to help Halderman establish what should be an obvious point: tell the truth is not yet a crime, and (fortunately for most professors) writing even wrong papers is not either.

The DMCA doesn't say this, but it might as well: "You can't handle the truth!"

Discussing 18th century English libel law, the Columbia Encyclopedia states (my emphasis):

Severe restrictions on the press continued, however, in the form of seditious libel laws under which the government was able to arrest and punish any printer who published material in any way critical of the government. There was no clear definition of what constituted seditious libel, ... At this time, both true and false criticism of the government was considered libel. In fact, legal doctrine proclaimed that "the greater the truth the greater the libel." Only in the mid-19th cent. did truth become admissible as a defense in English libel cases.

It strikes me that we are in a similar situation today with the DMCA, except in terms of copyright business, not government criticism. That is, with regard to how a copy control systems works, the truth of a technical statement is no defense. The theory is more like "the greater the truth the greater the libel.". That is, the more accurately one describes a problem, the more harm is deemed to be done (could one defend oneself from DMCA charges by pleading a paper was wrong? Shades of Galileo being forced to recant!).

Further in this metaphor, it used to be that reverse-engineering as a defense against intellectual-property charges, functioned like truth as a defense against libel charges. But that defense has been all but taken away now, with it being severely limited in the DMCA text, and eliminated by shrink-wrap license.

Indeed, in terms of the DMCA rationale, why should truth be a defense? When words are property, their truth-value is truly irrelevant.

By Seth Finkelstein | posted in dmca , legal | on October 14, 2003 10:36 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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