Yale fellow Ernest Miller and EFF's own Jason Schultz on Friday broke a story that provides an excellent opportunity for demonstrating the harm that the combination of overly restrictive copyright law and user-override technology can do to speech fundamental to a functioning democracy.
The story in a nutshell: the e-voting company Diebold, notorious for its efforts to squelch the publication of documents indicating flaws in its e-voting systems, suffered yet another embarrassing document leak -- this time, via its attorneys at Jones Day. The documents, which Miller analyzes at length in his post at Corante.com, show that Diebold was warned that using uncertified software in California's elections was likely illegal -- but went ahead and did it anyway.
The Oakland Tribune got hold of the documents, and Jones Day reacted just as Diebold did when the previous set of documents were leaked: It took legal action to stop publication. On Thursday, a Los Angeles judge agreed with Jones Day, ordering the newspaper to turn over the documents to the firm. Jones Day also moved to stop Internet publication, but because the documents were already online, that request was denied.
Enter the bloggers. "Unless there has been criminal action by the reporter to obtain the documents..., newspapers must be free to report on such documents when they come to light," wrote Miller. "If a newspaper can publish the Pentagon Papers, I don't see why a newspaper can't publish some legal memos regarding our voting system."
Schultz took the discussion a step further, pointing out that if the leaked papers had been protected by digital rights management (DRM) or trusted computing, breaking the digital lock to publish the papers would have been illegal under the Digital Millennium Copyright Act (DMCA) -- regardless of how beneficial the "fair use" anyone may have wanted to make of them.
"With Trusted Computing and the DMCA, fair use is no defense," wrote Schultz. "Under current law, circumvention of Trusted Computing and/or DRM is arguably a criminal and civil violation -- whether your purpose is to publish the Pentagon Papers or the Diebold Papers."
Thankfully, the decision to force the Oakland Tribune to return the leaked documents to Jones Day is now under appeal. Unfortunately, efforts to "appeal" the most damaging portions of the DMCA have only rarely succeeded. Courts for the most part are hamstrung -- if the law ignores potential harm to the public in perfectly protected content, the courts can't be expected to recognize it.
The end result is that in cases like this, technology could become both judge and jury -- deciding, for example, whether or not voters get to understand that they are at risk of being disenfranchised.
Congress passed the DMCA because it wanted to protect copyright holders. But under the U.S. Constitution, copyright law is supposed to balance the rights of copyright holders with those of the public. How many more unintended consequences can we expect to suffer before Congress understands that the public is being harmed and that balance must be restored?