DeCSS: design your own H-bomb?

On 8/17/2000, a federal judge ruled against 2600 for publishing DeCSS source code. The Decode Content Scrambling System allows GNU/Linux users to watch and even copy DVDs.

The judge had no choice in his ruling because the 2600-lawyers argued the case incompetently. They used a "prior restraint" defense, which only helps the first publisher (which 2600 was not).

We formed our opinion while reading Lessig's Code and Other Laws of Cyberspace. If one of Lessig's arguments is correct, only the first publisher of the DeCSS code should be in legal trouble (but still be able to avoid conviction). Mirror sites are perfectly legal.

Therefore, it seems the "prior restraint" defense of 2600 was on the wrong track -- because it only helps the first publisher. This explains why the lawyers couldn't even prevent the judge from issuing an injunction against mirror sites early in the trial. All things considered, we do not recognize the injunction or the ruling.

In Chapter 12, Free Speech, Lessig explains how the 1st Amendment protects against "the power of prior restraint", which is "when the government gets a court to stop publication of some material, rather than punish the publisher later for what was illegally published." He uses the New York Times' publication of the Pentagon Papers in 1971 as an example.

But then Lessig goes on to write, "if the Pentagon Papers had already been published by the Chicago Times, the government would have claimed no compelling interest to stop its publication in the New York Times. When the cat is already out of the bag, preventing further publication cannot prevent the cat from getting out the bag." (Of course, then the Chicago Times would have been slapped with the lawsuit....)

Lessig gives an example: a judge issued a temporary restraining order against The Progressive's "how to" article on H-bombs -- but the government dropped their case when a similar article was published elsewhere.

Lessig: "Note what this sequence implies. There is a need for the constitutional protection that the Pentagon Papers case represents only because there is a real constraint on publishing. Publishing requires a publisher, and a publisher can be punished by the state. But if the essence or facts of the publication are published elsewhere first, then the need for constitutional protection disappears. Once the piece is published, there is no further legal justification for suppressing it." (You might want to read that again. It is the basis for our opinion.)

That is, Lessig argues, the Pentagon Papers case involving "prior restraint" is no longer important in a world of Internet-enabled publishers. For instance, the New York Times could have anonymously published the Pentagon Papers on a USENET newsgroup before putting them in print -- and avoided the lawsuit altogether.

In any event, if it's legal to be the second publisher of Pentagon Papers and H-bomb plans, it should be legal to mirror DeCSS code.

Other controversial, historical documents:

• The Ten Commandments
• The Holy Grail: Cisco IOS Shellcode and Exploitation Techniques: "Network administrators are in serious error when basing their security topology on the assumption that hardware firewalls are invulnerable to remote root compromise. This is the main point which netadmins should get from the demonstration. With the technique uncovered here, remote root exploitation of a hardware-based firewall solution goes from fantasy to fact. This changes the security landscape so radically that netadmins cannot ignore it -- though many will."

Last modified: 8/19/2005

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