Sunday, April 23, 2006

DMCA: Prior Restraint Gone Amok

The First Amendment guarantees all Americans several basic freedoms. Among those are the freedom to speak freely and to publish the printed word, pictures, drawings, and anything used for communication. Our First Amendment rights are the very foundation of liberty.

Granted, there are instances when the use of speech may present such a clear and present danger that those instances may not be protected. The most often-used example is that you do not have the right to yell fire in a crowded theater.

But almost every exception to the right to freedom of speech is restricted to when someone’s life or limb is in jeopardy.

In addition, the Supreme Court has ruled that prior restraint is unconstitutional. In other words, an activity cannot be barred or restricted by a government agency just because it might cause a problem. People, for example, have a right to gather in protest even if there is a reasonable likelihood that such protest will result in violence.

Speech that most of us would find reprehensible is also protected by the Constitution. The writing or speaking of racial slurs, for example, is protected. The publishing of those inflammatory cartoons that depicted a caricature of the prophet Mohammad is protected, even though doing so has already led to widespread violence and even death in the Muslim world.

Even publishing directions on how to build a bomb is protected.

But there is one exception to our freedom of speech and press in which the speech does not lead to direct bodily harm. And yet it is against the law now, and Congress is considering making the law even tougher.

It has nothing to do with terrorism or even violence. It is a form of prior restraint which ought to be ruled unconstitutional.

If I were to publish information explaining how to get around the copy protection of a CD or DVD, for example, I would be breaking the law, even if nobody used the information I published to hack into someone else’s intellectual property.

The Digital Millennium Copyright Act of 1998 is a powerful tool that has been used to sue individuals for doing nothing more than exercising their freedom of speech. And now, Congress wants to strengthen it and broaden its reach.

A new bill up for consideration would double the jail time for some infractions of the DMCA. And it would allow government wire taps to investigate possible infractions of it.

At a time when most scholars, computer programmers, and technology companies are lobbying Congress to back away from the DMCA, Congress is considering doing just the opposite.

The new bill is backed by the Bush administration, obviously. And it is also backed by the big record companies and the motion picture industry. These are the same corporations that have been bullying everyday people by threatening fines and jail time to old ladies for unknowingly allowing their grandchildren to download songs from the Internet.

They are the same companies that attempt to guilt you into not making copies of a movie for personal use.

When a thief pilfers something from a store or an individual, such as a CD, the store or individual who owned it no longer has it. It’s gone and must be replaced.

But when a person downloads a song from the Internet, the song remains where it was before. Nothing is taken away. And as long as you don’t make multiple copies of it and sell them for personal gain, no one has been harmed. But you can still be fined or thrown in jail.

I’m not against copyright laws. I create intellectual property myself for the Web. I also police the Web for those who copy my stuff. And if I find a violation, I confront the violator and make them take my content off their site.

But the DMCA and, if passed, the updated law that strengthens it goes way too far. It is prior restraint gone amok. And I can’t wait until the constitutionality of it is challenged.

1 comment:

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