Breaking into Locked Rooms to Access Computer Source Code: Does the Dmca Violate a Constitutional Mandate When Technological Barriers of Access are Applied to Software?
57 Pages Posted: 7 Jan 2002
Breaking into Locked Rooms reexamines the challenge to the application of traditional copyright doctrine to computer software in light of the enactment of the Digital Millennium Copyright Act (DMCA). This article extends the author's prior critical analysis concluding that aspects of computer software, particularly the source code, rarely should be regarded as a category of expression created as a result of independent and, hence, original authorship. Taking that argument a step further, it becomes apparent, in the author's view, that the DMCA's ostensible approval of locking up access to source code regardless of whether the source code meets the originality requirement violates copyright's constitutional mandate.
This view unfolds, first, by concluding that as a result of contemporary programming methods, a substantial portion of the source code embedded within off-the-shelf software is neither independently created nor illustrative of the minimal creative spark required to meet the constitutional requirement of originality. This conclusion follows despite the author's judgment that the refrain "source code is speech" is imprecise and too analytically debilitated to sufficiently sustain the proper balance between copyright and free expression.
In this regard, the case is put forward that the proper scope of copyright protection for software has been further distorted by Congress' recent enactment of the DMCA - which contains a thicket of legal lumber that substantially diminishes fair use by adopting a reverse engineering standard permitting only an exceptionally narrow use of reverse engineering - as well as by the recent trend among courts to restrict the fair use doctrine of reverse engineering in the context of copyright infringement. By authorizing civil and criminal liability against content and software users, who attempt to access "locked up" source code by "reverse engineering" one form of computer code to reproduce another, more readable form of computer code, the DMCA pushes copyright directly out of step with promoting the progress of science and useful arts, which, of course, is the fundamental purpose of copyright. Ostensibly, the DMCA not only sanctions locking software ideas in a technological room, but, in most circumstances, prohibits breaking into the room or circumventing the "door locks" to access the hidden ideas. In this manner, the DMCA's reverse engineering provision is uncharacteristic of a copyright law because it undercuts the public's access to ideas: ideas embedded in source code. Unfortunately, the DMCA confounds a pre-existing, but perplexing trend within copyright law: courts fronting judicial imprimatur for increasing the scope of copyright protection for aspects of computer software that should be clearly uncopyrightable.
Oddly enough, this trend provides an apparent cover for content-based speech restrictions directed toward the activities of some libertarian-oriented Internet-based computer hackers and the open source movement, whose activities are focused upon unleashing the locked up ideas of software, not hiding them. Indeed, it is the open source movement that best demonstrates, both that a wide-ranging network of programmers can develop robust, popular, and reliable software, where source code is open and freely available to the public, not hidden by access controls or technological barriers of any sort, and that some of the prior assumptions about the relationship between copyright and software are no longer well-founded. At a minimum, the future will require active support by courts and Congress for the vigilant support of fair use and reverse engineering of copyright-protected works to reverse the trend toward the over-protection of software by copyright.
Keywords: First Amendment, Free Expression, Free Speech, Copyright, the DMCA
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