No one knows that better than the defendants in the DeCSS case, who are fighting the movie industry for the right to link to computer code that theoretically can be used to break anti-copying features on DVDs.
The Motion Picture Association of America last year sued Eric Corley and his online hacker publication, 2600, saying he violated copyright law by posting the code. The Electronic Frontier Foundation, which is representing Corley, has lost the first round of the case, although it is appealing.
"When basic rights are attacked, usually it's the fringe that's attacked first," Corley said this week after an appeals court hearing in his case.
Sporting long tangles of dark curls streaming from his receding hairline, a tattered black blazer and tennis shoes, Corley fits the stereotype of a hacker often portrayed in movies and books: unkempt, surly and unafraid to test corporate interests stepping on the rights of the little guy.
Now, however, free-speech advocates may be looking to a new candidate for poster child in their fight against the copyright holders. A Princeton professor who was barred last week from presenting a research paper, Edward Felten may be the new best hope for turning the tables in the copyright debate.
Groups such as the American Civil Liberties Union, American Library Association and EFF have been wildly successful overturning crackdowns on Internet content, including the Communications Decency Act. But so far, they've been on the losing side of battles to protect free speech in the face of corporate copyright owners seeking unprecedented digital privileges--battles such as the DeCSS case.
Both types of cases raise constitutional challenges to laws aimed at regulating the Internet, but the differences between them are as telling as the similarities. Although the content battles hearken back to age-old debates over censorship, the digital copyright debate offers few precedents. In addition, the free-speech implications of digital copyright law, which focus on attempts to limit discussions about copying technology, are arguably more subtle than other prohibitions on publishing.
According to people close to the cases, there is another important difference: the clients.
In the content crackdown cases, plaintiffs have been sympathetic sorts such as librarians or educators. In cases such as DeCSS, the free-speech fight is being waged by marginal characters who might not have much appeal to mainstream Americans.
Although free speech is supposed to protect expression made by society's fringe elements as well as by the mainstream, public opinion and even judges can be swayed by tales of mischievous crackers poised to attack your computer.
"As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."
Finding the right case
Free-speech issues--such as the right to sample, parody or talk about a product--have long been at odds with copyright law, which is premised on control of content. In the Internet Age, that tension has increased as copyright holders have convinced Congress to pass laws allowing them to exert even more control over their products, determining when, how and how often a person can hear, watch or read digital material.
For example, people who buy CDs have long been allowed to make copies to listen to in their cars and to resell CDs at used music stores. However, because material can be duplicated and disseminated so easily over the Web, copyright holders are trying to control not only the distribution of copyrighted works but also access to them in the first place through digital security measures.
One of the challenges facing free-speech groups such as the EFF is to make convincing arguments by showing how rights to listen to music, link to certain Web sites, or give a speech could be taken away--and by putting a friendly face at the forefront of the battle.
In the DeCSS case, the movie industry has repeatedly portrayed 2600 as a magazine that teaches people how to hijack domain names and perform other illegal acts. In the Napster case, another battle the free-speech advocates are losing, the judge early on accused the file-swapping company of "creating a monster," undercutting comparisons to other legal technologies that have enabled copying, such as video recorders.
Some legal experts wonder when cyber-liberties groups are going to line up their own cast of agreeable plaintiffs in an attempt to show lawmakers and judges the entertainment industry may be going too far.
The "everyman" appeal
After all, the strategy apparently helped in the content crackdown cases. For their challenges to limits on Internet content, the ACLU and its allies have stacked their lists with librarians, educators and the everyman who uses the Web.
In its most recent Internet content case, which challenges a mandatory filtering law for public schools and libraries, the ACLU has picked some of the most sympathetic, and diverse, characters of all: a Philadelphia teenager and her aunt, whose only Internet access is at libraries; PlanetOut.com, a gay and lesbian site; and even Jeffrey Pollack, a onetime conservative congressional candidate and former filtering advocate until he found out that some blocking software kept surfers from visiting his campaign site.
To reverse the downward spiral of the copyright debate, legal experts say the groups must find equally sympathetic people and make them plaintiffs. Until now, free-speech groups have been on the defendant's side of the copyright debate, fighting on behalf of people accused of breaking the law by promoting the theft of copyrighted works.
"They need to have some better plaintiffs, not just people who want to get free movies or hackers, who are doing things that otherwise might be fine but a judge doesn't agree," Burk said.
This time, the groups may have found their man in Felten, a geeky Princeton professor who teaches computer science when he's not testifying against Microsoft in its antitrust trial, investigating security bugs in Java, or writing books and journal articles.
Just last week, Felten was set to present a paper to a technology conference in Pittsburgh, describing how his team cracked watermark security measures designed to protect digital music.
However, the Secure Digital Music Initiative (SDMI)--an entertainment industry group formed to come up with ways to prevent piracy--sent threatening letters to Felten and his team, saying publication of the findings could violate digital copyright laws by disseminating information about getting around security measures. Felten and his team backed down and did not present the paper.
In effect, the threats prevented a professor from giving a speech--a move many Americans might take issue with.
"It seems to me a patently clear case of free speech and academic expression being restrained," Felten said in an interview after the incident.
He would not comment on any efforts to cast him as a plaintiff in a suit, saying only, "We are talking about our legal plans."
EFF attorney Cindy Cohn--who earlier this year told CNET News.com that her group would consider bringing a case challenging digital copyright law if it could find the right plaintiff--would only say "no comment" when asked if she was planning a suit on behalf of Felten in the wake of the SDMI episode.
Averting a backlash?
Moreover, the entertainment industry itself may be sensing that it's treading close to a line that could turn its track record in such cases from a winning one to a losing one. Immediately after Felten buckled and said he would not present the paper because he didn't want to open his team and their institutions to legal liability, the entertainment industry rushed to issue a press release trumpeting its support of academic freedom and freedom of speech.
"The Secure Digital Music Initiative Foundation does not nor did it ever intend to bring any legal action against Professor Felten or his co-authors," the release began.
Felten's answer to that? "It was only after the threat had already worked that they seemed to back down," he said.
Meanwhile, ACLU attorney Chris Hansen said his group isn't working on anything similar to Felten's situation right now, but that doesn't mean it won't eventually. "If the appropriate case came along, we'd consider it," he said. "We're obviously talking about these issues all the time, but we don't have anything in the works."
He said most groups considering such cases probably are awaiting the outcome of the DeCSS case. A victory for Corley and 2600 could embolden other groups who feel their rights have been trampled to take on copyright holders. A defeat could rally the troops to fight even harder, especially as people watch the rights they currently have--such as the ability to copy songs or movies they already own or to link to certain materials on the Web--slowly erode.
In crafting a potential lawsuit, such groups may look to two other cases of professors whose speech was quashed. In one case, the 9th U.S. Circuit Court of Appeals in San Francisco ruled that a government attempt to prevent math Professor Daniel Bernstein from posting encryption code was a restraint on free speech. Cohn represented Bernstein during that case before joining the EFF.
In a separate case, the 6th U.S. Circuit Court of Appeals in Cincinnati ruled in favor of Case Western University law Professor Peter Junger, who sued to post his encryption code to his Web site--an act the government said was illegal without a license. Junger was represented by the ACLU.