[Transcript excerpts, taken from the EFF website]
The last day of testimony... where do I start? With the anxiety in the pits of our stomachs, with the resignation of waiting for the appeal, with the hope that we've opened the door just enough to jam our foot in it?
I want to start from the end and work towards the beginning.
Judge Kaplan made this remarkable statement at the end, a sort of summing up, I suppose:
My tentative sense from having listened this week -- and last -- with a lot of care, is that probably not much has changed with respect to the DMCA itself. I think one thing probably has changed with respect to the constitutional arguments. I really find what Touretsky had to say today extremely persuasive and educational about computer code. I really don't think it's tenable to say that computer code of any kind has no expressive value, source or object. I'm really in doubt that saying computer code is expressive speech goes very far towards answering questions in this case. In the past the Supreme Court has fit ...[speech] into various pigeonholes: fighting words, commercial speech,... I'm really not sure that paradigm fits this case, or if it does, which pigeonhole it goes in. I reread the draft-burning case at lunch hour... the speech/conduct distinction they drew in that case is... debatable. There's some kind of analogy here. These are my views, they're very unformed.
Maybe, just maybe, we have a chance at this.
And what prompted this extraordinary statement? The testimony of David Touretsky, the Other CMU Professor(tm). If you haven't visited his CSS descrambler gallery, do so now (link on the front page of these documents). But for those of you who are just too lazy or want to hear how the live version was, here's the summary:
It started with the premise that the C source code for DeCSS was prohibited speech under this court's order in January. So, how about another implementation of the algorithm, say, css_descramble.c? Well, that's C code too, so maybe if we turn it into something non-compilable like a scanned image of the source, that's ok. But of course someone could just type it in and get the source code back again. All right, suppose that it's written in a C-like language with somewhat different syntax for which there exist no compilers. At this point, Touretsky paused thoughtfully and added,
I'm pretty worried about this because I have no way of preventing another person from writing a compiler for my language, and then I'll be in a position of providing code for which there is now a compiler.
[Anybody care to write one? A simple translator ought to take about 5 minutes...!]
Okay, suppose then that we describe the algorithm in plain English, as referenced in the file "plain-english.html" (here the judge interjected, "I'm delighted, Doctor, that this is plain English to someone"). We'll make sure this isn't compilable; it has a picture in it, an introductory paragraph, and then a translation of the C into English. Now, this should be protected because the court specifically refused to enjoin discussion of the algorithm in the January order. Of course, it might be a little hard for someone who doesn't know the rudiments of C to turn this back into source code, so suppose we put indented comments, one above each line, with a blue highlighting background in html, that give the C code corresponding to the translated line?
He continued in this vein until he got to the Copyleft T-shirt, which, he pointed out, if it is prohibited speech, then the wearing of it in public could be interpreted as trafficking in a 'circumvention device' [DMCA lingo].
It brings back fond memories of the crypto wars... oh, I forgot, we're still fighting those, aren't we? If we publish the code in a book and put a checksum at the end of each page and use a nice OCR-friendly font and *then* ship it overseas where strangers scan it back in and post it, etc. etc... Thank God we're through with *that* nonsense, at least for open source crypto posted on the Web. Now we just e-mail the BXA and post the source.
So here's my modest proposal: you can post DeCSS or its equivalent on the Web as long as you e-mail the MPAA first :)
But Touretsky wasn't done after explaining the gallery; he then went on to deliver a clear, precise step-by-step description of how source code is turned into object code, complete with reading assembly instructions and their corresponding hex machine code -- and the judge was not only letting him go on, he was fascinated! In fact, at the end of the testimony he made another astonishing remark:
This was illuminating and important and I was hoping we were going to hear something like this through the whole trial. Thank you for your time.
And you got the feeling that he really meant it.
Which brings us to the end of the trial: briefs are due August 8th, and there's still some wrangling about exhibits to be done. Closing statements will be made maybe later this week.
And now, the waiting. An opening? An illusion? A change of heart? A dead end?