Intent and the Web

In their efforts to ban the Net, lawyers have come up with an interesting new weapon called “intent.”

Under the rule of intent, speech that is otherwise legal can be declared illegal if a judge looks inside your mind and doesn’t like what he or she sees.

The new doctrine is the creation of Judge Lewis A. Kaplan of the U.S. District Court for the Southern District of New York, in Manhattan.

Kaplan used it to justify banning links to DECSS code from 2600, which is usually dubbed a “hacker’s” Web site but actually reports on hacking while allowing “news organizations” like CNN to keep their links online.

Kaplan’s reasoning was made necessary by the Digital Millenium Copyright Act (DMCA) of 1998, one of the first laws to make software illegal. Until the DMCA and its companion legislation, the No Electronic Theft Act (NETA), were passed, software was just a tool. Courts could act against users of software, but the software itself was neither good nor bad.

Hollywood’s lobbyists anticipated what the Internet might do to copyright, however, and pushed for NETA and the DMCA. Under NETA, you can be held in jail for up to three years if your computer holds an “illegal” Britney Spears MP3 file (and since her publisher hasn’t issued any legal ones, this means any Spears MP3). Under the DMCA, writing or distributing any software injurious to copyright becomes actionable in civil court and so, under Kaplan’s test, does reporting on it if you support the software author.

Together NETA and the DMCA placed the stiffest straightjacket on free speech since the heyday of Joe McCarthy and the House UnAmerican Activities Committee (HUAC). The difference is that while the HUAC “exposed” Communists (or fellow travelers) and used the pressure of hearings to keep them from working, the idea of “illegal software” has been written into our law.

Judges have no choice but to enforce that law, unless that law is found to be unconstitutional. So far, the Supreme Court has seen no case charging that the DMCA or NETA violates the First Amendment.

But as Judge Kaplan’s tortured reasoning makes clear, such a case will eventually come up. Kaplan thinks the difference between Eric Corley and CNN is that Corley is a hacker and, thus, has bad motives. In fact, the difference between Corley and CNN is that CNN has lawyers and lobbyists who can make a First Amendment case if Kaplan enjoins their links. It is a distinction without a difference.

As a journalist, I have sworn, like Thomas Jefferson, “eternal hostility against every form of tyranny over the mind of man“. The time has long since come for those who love liberty – not just software, but liberty – to recognize that copyright is not unlimited and that it can’t trump speech.

The time has also come for you to make a choice. What’s more important to you, the money you might make from your content or your right to create new content? Unless democracy can separate money and speech, through the courts or our elected representatives, the former will strangle the latter.