Page:Fair Circumvention.djvu/13

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FAIR CIRCUMVENTION

may not undo what Congress so plainly has done by construing the words of the statute to accomplish a result that Congress rejected.”[1]

The persuasive force of Reimerdes is occasionally impaired by the heated—at times, borderline intemperate—rhetoric of the court’s opinion. For example, the court seemed to insinuate that the DeCSS technology was guilty by association with various sordid topics also covered in the defendants’ magazine.[2] The court apparently found it damning that the defendants had previously published “a guide to the federal criminal justice system for readers charged with computer hacking.”[3] Elsewhere, the court likened the defendants to political assassins and the DeCSS code to a virus.[4] It painted the authors of DeCSS, who plausibly claimed to be motivated by the desire to play their lawfully purchased DVD discs on computers running the Linux operating system,[5] essentially as anarchists, describing them as “adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located.”[6] The effect is to make it difficult to tell whether, and to what extent, the court’s sweeping reading of the DMCA’s liability provisions, and its denial that copyright’s fair use doctrine was relevant to the reach of the

  1. Id. (quotation marks omitted); see also RealNetworks, Inc. v. Streambox, Inc., No. 2:99CV02070, 2000 WL 127311, at *8 (W.D. Wash. Jan. 18, 2000) (reasoning that accused producer of circumvention tool may not defend against DMCA claim based on its customers’ fair uses of the tool).
  2. Reimerdes, 111 F. Supp. 2d at 308-09 (“Not surprisingly, 2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, access other people’s e-mail, intercept cellular phone calls, and break into the computer systems at Costco stores and Federal Express.”) (footnotes omitted); see also id. at 343 (“Defendants are in the business of disseminating information to assist hackers in ‘cracking’ various types of technological security systems.”). The court’s repeated use of the words “hacker” and “hacking” as pejorative epithets—a usage at odds with the generally accepted meaning of those terms among technologically sophisticated computer users, for whom the word “hacker” connotes skill and competence rather than malicious intent—also suggests a certain visceral dislike of the defendants. Cf., e.g., Lawrence Lessig, Code: Version 2.0 8 (2006) (“Our government has already criminalized the core ethic of this movement, transforming the meaning of hacker into something quite alien to its original sense.”); Eric S. Raymond, The Cathedral and the Bazaar 231-32 (1999) (explaining terminological distinctions between skillful “hackers” and malicious “crackers”). See generally Sam Williams, Free as in Freedom: Richard Stallman’s Crusade for Free Software app. B (2002).
  3. Reimerdes, 111 F. Supp. 2d at 309. Creating such a guide, one might presume, could as readily be portrayed as a form of public service. Cf., e.g., United States Dep’t of Justice, National Criminal Justice Reference Service, http://www.ncjrs.gov/.
  4. Reimerdes, 111 F. Supp. 2d at 304.
  5. See id. at 311.
  6. Id. at 346. The court’s comparison of the free and open-source software movement to destructive anarchism, already a strained analogy at the time of its decision, became wholly insupportable in the years following Reimerdes. See, e.g., Don Tapscott & Anthony D. Williams, Wikinomics: How Mass Collaboration Changes Everything 92 (2006) (“No longer just an ad-hoc collection of individual volunteers, most of the participants in the Linux ecosystem are paid employees of Fortune 100 tech firms.”).