Killer Code

Jeff Taylor from the November 2000 issue

The First Amendment, fair use doctrine, and common sense were all casualties in the most recent decision in the Motion Picture Association of America’s case against a DVD player for Linux operating systems.

In August, U.S. District Judge Lewis Kaplan found no legitimate purpose for the DeCSS program, which allows viewers to decode DVD movies and play them on computers. Kaplan fully accepted the MPAA’s assertion that it was a pirate’s tool and nothing more.

Further, the judge held that anyone who directly linked to the DeCSS program or described it in enough detail to allow others to reproduce it would be violating copyright law.

The court’s one concession to the defendants: Kaplan ruled that the Web site which posted information on a program that could defeat copyright protection for DVD movies did not have to pay $4 million in plaintiff’s legal fees.

The implications of Kaplan’s decision are immense. He expressly found that writing computer code isn’t like speech, which enjoys broad constitutional protections. Kaplan evidently believes that code is more like witchcraft, with dangerous, mysterious, and unpredictable powers.

"Society must be able to regulate the use and dissemination of code in appropriate circumstances," Kaplan wrote. "The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact." So code’s capacity for evil, in Kaplan’s view, requires strong state safeguards.

How strong? On par with those designed to thwart assassins. "Computer code is not purely expressive any more than the assassination of a political figure is purely a political statement," Kaplan said. "Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin’s action."

Kaplan also adopted the MPAA’s view that there is, in effect, no such thing as fair use in the digital age. Those who want to make backup copies of copyrighted works or engage in other traditionally permitted forms of fair use would have to purchase analog copies for that.

This sweeping ruling is sure to be appealed, perhaps all the way to the Supreme Court.

But it is already possible to discern the world that big content owners want: Ever more restrictive "copyright protection" schemes will be introduced, some of which may even harm the quality and functionality of copyrighted work. (Some sound engineers say supposedly inaudible digital watermarks planned for recorded music aren’t.)

Consumers will be told that "pirates" are to blame as independent work-arounds, adaptations, and evaluations of the schemes are suppressed by waving copies of Kaplan’s ruling at Internet service providers, who will have to ban the posting of such material or risk legal action.

Love Joyce, Hate Jazz?

By Sara Rimensnyder

Authorities around the world have repeatedly banned James Joyce’s masterpiece Ulysses, usually because of the literally climactic soliloquy of the character Molly Bloom, who unabashedly cries out, "yes I said yes I will Yes" after detailing her erotic exploits. Now Italian performer Anna Zappa-roli has adapted that scene to the stage, performing it for the Edinburgh Fringe Festival in August. Sitting atop a grand piano and accompanied by a jazz band, Zapparoli sings lyrics taken from Molly’s monologue.

Not everyone’s excited about Molly Bloom: A Musical Dream, which the festival’s program listed as "adults only." Stephen Joyce, the Irish author’s grandson and zealous guardian of his estate, struggled but failed to halt the production.

Joyce says it wasn’t the propriety of ditties like "Song of the Big Hole" that rubbed him the wrong way. Nope, he quibbled with the idea of adapting the novel as a stage musical. His grandfather, he said, intended the passage to be the conclusion to a novel, and so it should remain. "The listener/viewer should not have their attention distracted by music [and] Molly lying on a piano," Joyce railed in a letter to Zapparoli, complaining also that she had turned the passage into a "jazz element in a jam session."

But the elder Joyce himself considered adapting Ulysses, among other works, for other media. In James Joyce, biographer Richard Ellman relates that the author spoke with Russian director Sergei Eisenstein and others about turning Ulysses into a film (which it was, in 1967, years after the author’s death). And Ulysses itself was informed by Homer’s Odyssey, which Joyce presumably read, despite the fact that the blind bard intended it for the oral tradition.

Joyce’s grandson wouldn’t have looked any more absurd if he had stuck to the simpler explanation he used in May, when refusing an Irish composer’s request to use 18 words from Finnegans Wake: "My wife and I don’t like the music."

Mile High Cops

By Katherine Mangu-Ward

The first obstacle to securing a position in the CIA is its strict policy against hiring anyone who has used illegal drugs. Apparently, local police do not face nearly so stringent a requirement. Jesse Katz of the Los Angeles Times recently obtained redacted versions of the applications filled out by Denver’s 80 new police recruits last year. Fifty-two of them–that’s 65 percent–confessed to prior drug use. In surveys of the general population, by contrast, only about half of 18- to-34-year-olds admit to having used an illegal drug.

One might hope that this would make the Mile High City’s cops less fervent drug warriors, but there is little evidence of this. In the past year, these zealous new recruits and their colleagues have made 6,600 arrests on drug charges.

AIDS Scare

By Brian Doherty

As an attention-grabbing headline, "AIDS Activists Call for Cutting Federal Spending on AIDS" is right up there with "Man Bites Dog." Still, some Washington, D.C.—area newspapers saw so little newsworthiness in the story that they wouldn’t even run an ad that four ACT-UP chapters put together to announce their surprising position. The ad argued that government AIDS expenditures have so far been largely misdirected and scandal-ridden.

Roll Call, a newspaper that covers Capitol Hill, ran the AIDS advocacy groups’ advertisement on June 22. But The Hill, another paper focused on Congress, and The Washington Blade, a gay paper, both refused to do so, claiming the ad made undocumented assertions. (The Web site www.actupsf.com does provide extensive support, mostly from newspaper articles, for the claims.)

The ad’s sponsors–the San Francisco, Atlanta, Hollywood, and Toronto chapters of ACT-UP–are renegades in the larger AIDS activist community: They think that HIV is not a necessary or sufficient cause of AIDS. The ad did not discuss that point, instead stressing more typical objections to government spending, including the misuse of money from the Ryan White Act (an umbrella program name for federal AIDS money) and other AIDS assistance programs. The ad notes that $2.2 million in federal money meant for AIDS was rerouted toward political payoffs and bribes in Puerto Rico (a case that has so far led to more than 10 criminal convictions). The ad also points out that many popular AIDS drugs paid for with federal dollars have life-threatening side effects.

ACT-UP San Francisco spokesman Michael Bellefountaine says the group hasn’t been able to get much support from any politicians for its specific position, which calls for redirecting AIDS funds to more general health and housing aid for any sick American. (The ad also featured a bar graph showing that AIDS gets more federal money per victim than any other disease.) "A lot of the right-wingers who might jump on defunding AIDS wouldn’t jump on the overall push of the ads," Bellefountaine explains. But he also notes that some of the horror stories of fund misuse were brought up in congressional debates over this year’s funding for the Ryan White Act.

Pentagon Play Money

By Brian J. Taylor

Don’t know where the Pentagon is storing billions of dollars’ worth of inventory–everything from ammunition to weapon systems to medical supplies? You’re not alone: Neither does the Pentagon.

Without knowing what material it already owns or where it is located, the Department of Defense is wasting billions each year buying redundant items. A full 58 percent of items "on-hand" –worth over $36 billion–are unnecessary, according to the General Accounting Office.

Several branches of the armed services lack proper inventory records, especially when material is transferred to a different location and soldiers lose track of it. Neither the Air Force nor the Army keeps adequate records of material moved or knows its value, according to recent audits. And as a result of the Navy’s failure to notify inventory managers of shipments, items worth billions have been declared "lost during shipment."

The GAO also recently accused the Defense Department of gross financial mismanagement. No major component of the department has ever passed an independent audit. According to GAO testimony (viewable at www.gao.gov/new.items/a400163t.pdf), this is due to "pervasive weaknesses in [the department’s] financial management systems, operations, and controls," weaknesses that in 1995 convinced the GAO to put the Pentagon on its high-risk list of areas "vulnerable to waste, fraud, abuse, and mismanagement." Five years later, it’s still there.

Ivory Tower Terror

By Jeff A. Taylor

Can America be kept safe from college students who switch majors? According to the National Commission on Terrorism, it’s a danger that needs to be addressed. Otherwise, foreign students could shift from such evidently innocuous fields as English literature to physics or chemistry, disciplines that, one gathers, might teach them to make bombs.

Congress set up the terrorism commission two years ago, after an Islamic faction bombed U.S. embassies in Africa. Interestingly, the terrorists responsible for those bombings don’t seem to have studied in the United States.

The panel, made up of private security experts and former government officials, also wants the Pentagon, as opposed to civilian agencies, to take the lead in responding to major terrorist attacks on American soil. Implicit in that change would be a move away from the law-and-order model the U.S. has applied to terrorists for decades, which holds that terrorists are not warriors but simple criminals. Either that, or the commission wants Congress to revisit the Posse Comitatus Act and allow the military to enforce domestic law.

The notion of advancing foreign and domestic policy by acquainting foreign students with police state surveillance also seems suspect. That approach merely teaches that freedom doesn’t work and that the ends justify the means.

Borderline Cases

By Jacob Sullum

Prosecutors in southern Texas went on strike in July, refusing to accept drug cases referred to them by federal authorities. But the lack of cooperation does not necessarily signal a lack of enthusiasm for the war on drugs.

Indeed, state Sen. David Sibley (R-Waco), who supports the strike, charges the feds with being too easy on drug smugglers. He told The Dallas Morning News that the Justice Department was only "paying lip service" to the idea of "zero tolerance" because it routinely declines to prosecute cases involving relatively small amounts of drugs, instead passing the ball to local authorities.

"For years, border counties, the poorest in the U.S., have borne the burden of border justice," another state senator told the News. "We can no longer bear this burden. The federal government must prosecute and pay for what it is charged to do."

The money could be on the way. Gov. George W. Bush has promised that if he’s elected president he will push for $50 million to help border counties prosecute the drug cases the Justice Department doesn’t want to bother with.

Phony Deregulation

By Adrian T. Moore

Ralph Nader recently characterized San Diego as the "canary in the coal mine" of electricity deregulation, arguing that the state essentially sold out the public’s right to a reliable supply of electricity when it tried to open the door to competition. He misplaced the blame. San Diego’s skyrocketing electricity rates are the result of political horse-trading and compromise, not free markets.

The 1996 law at the center of the debate is not some radical rewriting of the rule books. California didn’t deregulate its electricity market; it "restructured " it. While the generation of electricity was partly deregulated, additional regulations and controls were placed on the rest of the system. The result violates most basic principles of deregulation: It discourages entry into the market, it restricts expansion of capacity, and it sustains the old systems and rules that prevent competition.

Witnessing the legislative battles and compromises, most potential competitors outside California adopted a wait-and-see approach. The most recent attempts to freeze electricity rates at pre-restructuring levels have only confirmed their worst fears–it isn’t a deregulated market at all, just some hybrid that no one knows how to navigate.

Under real deregulation, higher prices would spur more competition. But under California’s system, political hurdles ensure that no out-of-state relief can be expected anytime soon.

So what about new power supplies in-state? Many pundits complain that no new capacity has come online since restructuring, but they don’t bother to ask why. First, the restructuring law forced California’s utilities to get out of power generation and sell their power plants–so they aren’t investing in new ones. Several groups have applied to build new generation plants, some of them immediately after the law was passed. But even after four years, those new plants aren’t likely to come online until next year because of the glacier-slow approval process.

As important, restructuring left California’s existing power supply dangerously exposed by lengthening the regulatory process for repairs and upkeep. The last thing you want during a power shortage is to have existing plants break down. But because of a deal brokered in restructuring, power companies must now get regulatory approval before doing major repairs or refits. The result: While San Diego County suffers blackouts, the power supply problem gets worse.

Worst of all, because electricity rates were not uniformly deregulated–only San Diego is experiencing "unregulated rates"–folks upstate have no incentive to conserve power. Supply is further diminished, and prices are pushed higher.

Given that the normal benefits of deregulation–competition and price-sensitive demand–were compromised out of the restructuring legislation, what do lawmakers want to do now? They want to reimpose price controls. While this may offer San Diegans short-term relief, it will have no effect on the long-term health of the power supply. In fact, combining artificially low prices with severe bureaucratic barriers to new supply is a recipe for major power shortages.

Contrast this with true deregulation in other industries, such as trucking and long-distance phone service. In those cases, prices were deregulated uniformly across the market; barriers to entry were removed, not added; and firms were encouraged to add capacity and were allowed to grow, shrink, or revamp themselves to respond to changes in demand. The result has been huge decreases in prices and increases in service quality and choice–the very things those who labeled California’s electric restructuring "deregulation" promised.