If you ask the average (very average) copyright lawyer whether there is tension between copyright law and the First Amendment, you'll get a slogan for an answer: "No tension, none at all, so long as copyright law permits 'fair use.'" A toy company last week demonstrated how unreal this slogan has become.
Mattel (MAT) owns a company that sells Cyber Patrol. Cyber Patrol is a form of censorware; it blocks sites on the Internet based on their content. Its defenders don't like the term "censorware" - after all, they insist, it is an individual, not the government, who chooses to use Cyber Patrol. This is, no doubt, usually true - though libraries, schools and state-run universities (i.e., governments) have frequently deployed the program. But it is also true that users cannot tell which sites have been blocked, and horror stories abound about sites improperly blocked by censorware.
Two coders decided to remedy this problem. Eddy Jansson of Sweden and Matthew Skala of Canada wrote CPHack, a program that lets people see a list of the sites that Cyber Patrol blocks. They posted their program on the Web, with an essay explaining their methods and purpose, and other sites then "mirrored" the posts. The aims of these coders were likely many, but making money was not among them. They are opponents of censorware; they were keen that others see the kind of blocking the programs permit; they were pushing for a transparency in technology, by revealing how nontransparent technology works.
Mattel was not at all happy about this, and it launched a campaign to delete CPHack from the Internet. It first used Cyber Patrol to do this by adding to its list of banned books sites that carried the hack. It then raced into federal court, demanding an injunction stopping the distribution of the program. Mattel's copyrights had been breached, its lawyers told the district court judge, and as a result, the morals of American children were threatened.
The judge was quick to act. That afternoon, he issued a temporary injunction stopping the distribution of the program. Lawyers for Mattel then e-mailed a slew of subpoenas to site administrators around the world, demanding that they reveal the identity of everyone who had downloaded a copy of CPHack.
This, of course, was fuel on the fire. As news of the injunction hit the Net, and the threats of the subpoenas were repeated, the number of mirror sites increased dramatically. Peacefire.org, the Electronic Privacy Information Center and the ACLU joined forces to help defend the mirroring sites. Web hosts around the world gave the program safe harbor. And as lawyers for Mattel prepared to go back to court to get a permanent injunction against the code, it looked as if the conflagration was out of control.
But just before the hearing, the lawyers announced a settlement. In exchange for dropping all actions against the defendants, Mattel had purchased the copyright to CPHack and the accompanying essay. The copyright to the program was now Mattel's, which warned the mirroring sites to remove it.
It was a brilliant idea - for the defendants at least. It is something of an embarrassment for Mattel. For while the defendants may well have sold the rights that they had, they certainly didn't have the rights that Mattel wanted to buy. The code of CPHack had been licensed under the Free Software Foundation's GNU General Public License. Code that has been "GPLed" cannot be retrieved from the commons. As Free Software Foundation attorney Eben Moglen puts it, "GPL is software that cannot be revoked."
But whatever Mattel got from the defendants, it did get something significant from the judge. On March 28, Judge Edward Harrington issued an extraordinary permanent injunction barring both the defendants and anyone else "in active concert or participation" with the defendants from distributing CPHack. The program is thus to be erased under the threat of contempt from a federal court.
The injunction is shaky; its reach is uncertain; the claimed copyright violation upon which it rests is probably, as the ACLU argued, illusory. But Mattel has a much stronger argument up its sleeve. (Whether it realizes this is another matter.) And it is this argument that is pressing the increasing conflict between the protection of copyright and free speech.
