"The death of hypertext" is much exaggerated, despite the most current claims by cybertext theorists. In fact, the hypertext link is the crux of ongoing struggles over copyright, intellectual property, and the expressive role of computer source code. The purported convergence of media forms that neutralizes the theoretical interest of the hypertext model – with its insistence on textuality – turns out to rely on links. Links remain the nodal point of translatability between new media formats. My paper focuses on the court battles surrounding the deCSS software allowing illegal decryption of DVD's. The eventual rulings, which are still being contested, are the major implementations of the Digital Millenium Copyright Act, a sweeping legislation on the copying and control of intellectual property in digital technology. A November 2001 California ruling dealt with third party links to deCSS source code. In question was whether such linkages themselves consisted of illegal distribution of the code or if links were protected as free speech. The resulting legislation on the nature of links declared a so-called "linking prohibition" (a la the 18th Amendment). In effect, the court declared that links were not covered as free speech in the way other texts are because links contain both a speech and a non-speech component, or an "informational" and a "functional" component (this functionality being reduced or literalized to "clicking"). The ruling was intended to demarcate the legal reach of Internet linking, and relied on particular assumptions about the nature of text and technology. While the court intended the notion of "clicking" to delimit access to illegal material, in doing so they institutionalized an aporetic definition of the link open to infinite generalization. Rather than literalizing links, the legislation created a kind of poetic and proliferating interlinkage. In effect, any reference to the deCSS, in whatever media, including the reference in this sentence, is both legal and illegal according to the decision. These implications were explored by hackers and activists, who responded by turning the CSS code into a range of objects, including haiku, mp3 and midi audio files, mpeg movies, yahoo greeting cards, t-shirt, and many other forms, all of which test the intermedial translatability legislated by the court. Each artifact may or may not be considered a "link." The link as legal crux of copyright and property, and as productive site of original artwork, testifies to this still central role of hypertext in new media.
Introduction
The linking prohibition is an act of law, handed down in the August 2000 term of the U.S. 2nd Circuit Court of Appeals in the case of Universal City vs. Reimerdes, an act that delimits and declares what a hypertext link is and must be. The linking prohibition literalizes the link to control the technical acceleration and automatic iterability underlying digital technology. Every act of law requires reference to the exemplary status of literature qua law, literature as the text against which the legal text is written. This case is no different, defining the link in terms of its First Amendment protection by comparison to the protection afforded novels or poems. Literalization always means the latest version of the literal. In this case the now-binding definition of a link is twofold: both a speech element, covered as expression under the First Amendment, and a second functional element, a prosthetic extension of the underlying computer code. The legal status of a link is not an expression of an author but a function of the mediality of writing qua technological substrate. And this functionality can not be simply delimited as the “materiality” of the underlying technology: the prosthesis involved is infinitely extended, the functional reach of the link cannot be fixed. While the court intended the notion of the "functionality of clicking" to delimit access to illegal material, in doing so they institutionalized an aporetic definition of the link open to infinite generalization. Rather than literalizing links, the legislation created a poetic and proliferating interlinkage. Acts of law create institutions but this institution, like a link, is never itself, never in its place. Literalization always means more literature, appearing elsewhere behind the backs of the institution of the literal. With the literalization of the link comes a new fictional performance which repeats and speeds up the proliferation and generalization of linkages, an unconstrained distribution of forces across digital media. All links are against the law and all links repeat the literary textuality of linkages without delimitation. In fact, Ted Nelson’s originating definition of hypertext as "nonsequential writing" (8) names a radical sequentiality without sequence, a capacity for iteration and generalization in the concept of the link. Anything may be a link. Just as allegory functioned in the early modern texts studied by Walter Benjamin, where the world turned enigmatically readable, so too the hypertext link is everywhere and nowhere, exceeding any possible literal or legal accounting.
"Cybertext killed the Hypertext Star"
I see the linking prohibition in light of recent claims for the death of hypertext. "Hypertext is dead," declares Markku Eskelinen (3). "Cybertext killed the hypertext star," answers Nick Montfort, who replaces the link as an "interesting feature" with cybertext, that is, with a focus on the computational structure of texts, and claiming in the process to "free" the new category "from the chains of a critical-theory-influenced and essentially non-computational perspective" (7). That is: theory kept us from grasping the real material and computational status of texts. Focusing on cybertext as computation, Eskelinen demotes links to one of some 576 possible descriptors (3). By contrast, Jim Rosenberg’s work on spatial hypertext describes an enormous range of possible link types, where linking is not limited to the binary either-or commonly understood as hypertext, but can be thought of in terms of modes of "gathering" through set and category relations (9). Having freed ourselves from links, we find a proliferation of new media forms that may or may not still be constituted as links. In fact, the ambiguity of the link, in contrast to the descriptive wealth of the cybertext, is not a limitation but a problem that must be addressed. Scholars of hypertext should heed Lawrence Lessig’s critical analysis of "code as law" as closely as Eskelinen’s canny cybertext theory (5). Hypertext links are the crux of ongoing struggles over copyright, intellectual property, and the expressive role of computer source code. The purported convergence of media forms that neutralizes the theoretical interest of the hypertext model – with its insistence on textuality – turns out to rely on links. No doubt the linking prohibition debate occurs at a different level of cultural analysis than that engaged by cybertext theorists, nevertheless, the point remains that links are the nodes of translatability between new media formats. If hypertext is dead, its afterlife haunts all media.
The linking prohibition
The story of the linking prohibition goes like this: in 1999, a Norwegian teenager named Jon Johansen reverse-engineered the Content Scrambling System or CSS used to encrypt DVD's. There are some competing accounts attributing the hack to others, but one way or another, the resulting deCSS was a new step in illegal DVD copying. CSS is built into all DVD players and disks, preventing playback on non-CSS system. Moreover, the motion picture industry will not license movies for DVD's unless the manufacturer includes such encryption. Unlike existing DVD rippers and similar illegal copying devices, deCSS actually decrypts the DVD, creating a computer file that can be recompressed, copied, transmitted over the Internet, and so on. deCSS is an algorithm, a set of procedures translatable into different platforms and formats.
Digital Rights Management
In the background are digital rights management or DRM technologies. The current strategy of DRM is to protect copyrighted works through hardware-level access protocols. The legislation that supports DRM is the Digital Millennium Copyright Act or DMCA passed by Congress in 1998. Two sections are particularly important: Section 1201(a)(1)(A) forbids circumvention of technical measures copyright owners use to protect access to their work; Section 1201(a)(2) forbids manufacture or distribution of technologies primarily designed or produced to circumvent access control. As a result, the DMCA legislates that "no person shall manufacture, import, offer to the public" or "provide" technologies for circumventing DRM (2). As constitutional law scholars point out, the ambiguity of DRM is suspended in the concept of "rights." The DMCA institutes an interpretation of rights as "access." At stake is the legalization of access control as protection of rights and related problem of the ambiguity in defining what constitutes "providing" circumvention technologies.
"Just a click away"
In January 2000, Universal City Studies, supported by the Motion Picture Association of America, sued *2600 Magazine: The Hacker's Quarterly* for publishing the deCSS code. A California court was already embroiled in prosecuting over 500 sites for displaying or linking to the deCSS code. *2600* removed the code but posted hundreds of links to sites where deCSS was available. Universal brought 2600 to court again, arguing the links still constituted a violation of the DMCA's prohibition on "distribution of technologies primarily designed or produced to circumvent access control." 2600 argued that the links were protected free speech under the First Amendment. The court replied that posting the deCSS on the web site made it "instantly available at the click of a mouse." Removing the deCSS code but posting the links was no different, in the words of the court's opinion: "with a hyperlink on a web page, the linked web site is just one click away." Linking 2600 to deCSS sites was an extension of the circumvention technologies available on those sites and subject to enforcement under the DMCA. Links are prostheses of the sites they link to, and the act of clicking is so hard and immediate that the click is already there, built into the link. The court ultimately handed down a so-called "linking prohibition," in the spirit of the 18th amendment, proscribing links to sites enabling circumvention of CSS technologies. In doing so, they ruled on the definition of hypertext links and computer source code. In examining the court's argument, I focus largely on the final statement released after the August 2000 session. At issue here is the status of computer code or source code, and particularly its translatability or mediality (rather than materiality) (6).
Code and Free Speech
To understand the First Amendment status of code, the court invoked several comparisons. The first was necessarily literary: literature is the initial clearing of space for free expression. "If someone chose to write a novel entirely in computer object code by using strings of 1's and 0's for each letter of each word," the court offered, "the resulting work would be no different for constitutional purposes than if it had been written in English" (6). The novel could be read and understood and would be "no more incomprehensible than a work written in Sanskrit for those unversed in that language." In this sense, computer code is protected free speech because it constitutes an expression in the same sense as a novel.
The second set of comparisons, however, moves from literary texts to distinguish computer code by its use as "primarily the language for programs executable by a computer" (6). Code is more like a recipe or musical score, intended to carry out some baking or playing music. This procedural or instructional quality differs from the example of the novel. Code is a scene of performance, a particular stage of action, whereas the novel is purely expressive speech. Its performance can not be determined – the court insists that the readability of the novel in no way bears on its constitutional status – which means that literature has no performative function but also that its performance is yet to be determined, that literary works exist as procedures who range and force are unevaluated.
Hypertext as recipe
For the moment, I will put aside issues of source code as concrete poetry, as practiced by PERL poets, or in John Cayley’s "aesthetics of compilation" where the challenge is to discover a liminal text readable in poetic terms and executable on computer hardware (1). The court's opinion insists that computer code is intended to be machine readable as well as human readable. This procedural binding of computer code does not in itself void First Amendment protection. The court points out that a recipe is "no less "speech" because it calls for the use of an oven, and a musical score is no less "speech" because it specifies performance on an electric guitar" (6). However, the comparative movement from literature to recipe or score extracts performance from computer code. The movement insists on the doubleness of code as expression and action.
The court then defines and locates this doubleness by insisting on the difference between code and the earlier examples: unlike the possibility of action in a recipe or score, code necessarily involves a "functional" or "non-speech" component. The force of performance is already contained in and with code. It is this functionality that leads to the linking prohibition: hypertext links are functional and automatic extensions of the sites they link to. At issue is the human action involved: according to the court, while a blueprint or a recipe "cannot yield any functional result without human comprehension of its content, human decision-making, and human action," with computer code, by contrast, "the only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse." The court immediately recognizes that some human action is required to load the code into the computer, but that this "momentary intercession of human action does not diminish the non-speech component of code, nor render code entirely speech, like a blueprint or a recipe" (6).
Hypertext as functional, non-speech
What is this functional, non-speech component? The judge's ruling repeatedly notes that the acceleration and iterability or reproducibility of source code is built into links a way that it is not in a recipe or blueprint. The Judge's ruling emphasizes that hyperlinks could "take one almost instantaneously to the desired destination." Moreover, computer code is subject to an "accelerated blurring of the line between "source code" and "conventional speech"" (6). This dromological blurring means that the performance of the link through clicking is increasingly indistinguishable from the code itself. Reading the code already speeds one towards performing the code or linking. The blurring is a kind of emblem of the acceleration of global media. The judge asserts that "given the virtually instantaneous and worldwide dissemination widely available via the Internet, the only rational assumption is that once a computer program ... is disseminated, it will be used" (6). We are to assume that the code is already performed – as a link or in other forms, say, as DVD decryption. Acceleration extracts a kind of automatic performance from source code: it will be performed, it must be performed. This speed-text renders code very much like literary text: the speed of technology makes computer code's performance as undetermined as the novel's, always suspended and possible, even in the absence of a computer. The performativity of the code is virtual, an invisible matrix emanating from the text. The link is both literally fixed, defined as speech and functionality, and endlessly proliferated.
Images are not links
The linking prohibition means that a link is an appearance of what it clicks to. The link is already clicked through the projectivity of speed. The linking prohibition even extends to inactive links, that is, to web addresses posted as text in a web page. The court argues that then "the linked web page would only be four clicks away, one click to select the URL address for copying, one click to copy the address, one click to "paste" the address into the text box for URL addresses, and one click (or striking the "enter" key) to instruct the computer to call up the linked web site" (6). Links need not be links to link. The linking prohibition literalizes and defines, but in doing so creates a spreading, viral linkage. By contrast, a link made into an image file, say a .jpg or a .gif, would not violate the DMCA because it requires the user to actually type the address into the browser rather do four rapid clicks. The image returns the link to speech or expression.
Clicking vs. typing
Without dwelling on the mysterious disappearance of typing as the exemplary instance of an automatized activity – the cessation of human decision-making in rapid dictation and typing cites an earlier and now naturalized paradigm of automatization – I want to point out the boundary established here between typing as a means of expression and clicking as pure function. Pointing and clicking, even repeatedly, is understood as automatic action. The information processing of the computer takes over the user at high speed, and the click is not action but an extension of the network and an auto-amputation of the subject, in McLuhan's phrase. By contrast, typing the address into the bar is an act of communication. The address is rendered an expression between constituted subject. Typing is subjectivity. Now, there are several problems here that I will not have space to explore. Mouse clicking as functional reaction removed from human decision making is contradicted in another set of DMCA-based lawsuits by Microsoft, concerning so-called "click through" licensing, lawsuits that highlight the instability of digital rights as access. In question is the legal status of clicking "I accept" on a screen announcing software licenses. Does such a click through constitute acknowledgment or just a click? Extrapolating from the deCSS ruling, the speed of computation makes clicking the link a function already present in the link and not an expression of the decision-making power of the human who clicks. Microsoft, unsurprisingly, argues otherwise in still unresolved court cases, claiming that clickthroughs are binding agreements.
Hypertext before the law
Hactivists, computer scientists, and free speech advocates have taken up the linking prohibition to create a range of artifacts that may or may not be links. Their works challenge the DMCA legislation by asking what constitutes a representation of the deCSS and what constitutes a link to such representations. Each example explores the unstable and invisible speed-boundary of expressive speech and functionality.
There are a number of excellent web-based collections of these works, as well as excellent archives of DMCA and deCSS articles and legal rulings. The following examples are taken from David Touretzky’s page at Carnegie Mellon (10).
* The figure above shows part of a screen dump of the deCSS code. This is not the source code but a picture of the source code. A human could type the code into a computer and compile it. Is this speech or a functional link? Is it both? Are the images hyperlinks to the deCSS code or not?
* Seth Schoen wrote a haiku version of the deCSS algorithm. Some of the crucial verses run: "Arrays' elements / start with zero and count up / from there, don't forget!" and "Integers are four / bytes long, or thirty-two bits, / which is the same thing." Someone could read the haiku and write down code that would in fact decode DVD's. Is this a link? The haiku's author stated in the Wall Street Journal that a "program is a literary work ... The idea was to show how strange and difficult it is to classify computer programs and technical information as something other than speech" (4).
* The figure above shows a screen shot of the Windows minesweeper game. The mines are an ASCII encoding of the deCSS descrambler. The image uses the notion of steganography or hidden writing, where the message (the code) is hidden inside another message (the screen shot of minesweeper). Is this image a link?
* David Touretzky offers another example of a T-shirt showing the deCSS code. You can also buy an "I am a circumvention device" T-shirts, as well as deCSS ties. Touretzky asks whether "merely wearing one of these in public would constitute "trafficking in a circumvention device" as defined in section 1201 of the DMCA?" (10). In fact, the company distributing the shirts, Copyleft, has been named a defendant in the California deCSS lawsuits. (The image of the t-shirt is no longer available online.)
* Touretzky offers many other examples. There are dramatic reading of the deCSS algorithm (free speech or code?), including a version set to country music. There are javascript and VB routines using animated Microsoft Agents such as Wizard and Robbie to recite the deCSS code. Here we have a speech act, though the computer is supplying the speech, but does this count as protected speech? The New York Times even links to the 2600 Magazine list of deCSS sites. Is this a felony?
Conclusion
The literalized link is the appearance of the law, an appearance of the act of law and its transgression. The nonsequential links display in condensed form the conceptual mediality of digital code.
References
1) Cayley, John, "The Code is not the Text (Unless it is the Text)." *Electronic Book Review* v3. Available: <"http://www.electronicbookreview.com/v3/servlet/ebr?command=view_essay&essay_id=cayleyele":http://www.electronicbookreview.com/v3/servlet/ebr?command=view_essay&essay_id=cayleyele >, (Accessed May 12, 2004).
2) Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. "Chapter 12: Copyright Protection and Management Systems." Available: <"http://www.copyright.gov/title17/92chap12.html":http://www.copyright.gov/title17/92chap12.html >, (Accessed May 12, 2004).
3) Eskelinen, Markku. "Cybertext Theory: What an English Professor Should Know Before Trying." *Electronic Book Review* v3. Available: <"http://www.electronicbookreview.com/v3/servlet/ebr?command=view_essay&essay_id=eskelinenrip/":http://www.electronicbookreview.com/v3/servlet/ebr?command=view_essay&essay_id=eskelinenrip/ >, (Accessed May 12, 2004).
4) Hamilton, David P. "Banned Code Lives in Poetry and Song." *The Wall Street Journal*, April 12, 2001. Available: <"http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/wsj-04-12-2001.html":http://www-2.cs.cmu.edu/~dst/DeCSS/Gallery/wsj-04-12-2001.html >, (Accessed May 12, 2004).
5) Lessig, Lawrence, *Code and Other Laws of Cyberspace*. New York: Basic Books, 1999.
6) MPAA vs. 2600, Decision by the Court of Appeals of the Second Circuit, August Term 2001. Available: <
"http://cryptome.org/mpaa-v-2600-cad.htm":http://cryptome.org/mpaa-v-2600-cad.htm >, (Accessed May 12, 2004).
7) Montfort, Nick, "Cybertext Killed the Hypertext Star." *Electronic Book Review* 11. Available: <"http://www.altx.com/ebr/ebr11/11mon/":http://www.altx.com/ebr/ebr11/11mon/ >, (Accessed May 12, 2004).
8) Nelson, Theodor Holm, *Literary Machines*, Sausalito, CA: Mindful Press, 1992.
9) Rosenberg, Jim, "User Interface Behaviors for Spatially Overlaid Implicit Structures." Position paper presented at the First Workshop on Spatial Hypertext at *Hypertext '01*. Available: <"http://www.well.com/user/jer/poetics.html":http://www.well.com/user/jer/poetics.html >, (Accessed May 12, 2004).
10) Touretzky, D. S. (2000) *Gallery of CSS Descramblers*. Available: <"http://www.cs.cmu.edu/~dst/DeCSS/Gallery":http://www.cs.cmu.edu/~dst/DeCSS/Gallery >, (Accessed May 12, 2004).