"The judge told us to serve by certified mail a letter to anyone who might be working in active concert with Jansson and Skala," Schwartz explains. "To put them on notice, that this could mean you. I don't know if they are or not; it's an open issue. It's an example of how technology is ahead of the law."
By sending copies of the settlement to mirror sites, Schwartz again waded into uncharted cyberlaw territory. Schwartz says one reason he sent the letters was because Jansson and Skala sold the rights of the hack package to Mattel, and re-posting it now would be another copyright violation. But the mirror sites argue that the hack package was let loose on the Internet for free, under the General Public License, and is subject to "fair use"; something that has been "GPLed" cannot be seized back. But even this argument has been squabbled over -- Jansson and Skala never took any steps to file for a GPL.
Tom Dougherty
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Meanwhile, Schwartz says that the case is really a copyright infringement suit that has been misconstrued as a free speech case. "I don't see the civil liberties piece," Schwartz says. "There may be a philosophical difference over the utility of censorware -- which is a term I don't like -- but it's a commercial product. This is not a government-imposed restriction on free speech. It doesn't justify people putting out a program that demolishes the commercial utility of my product. If they don't like that a government entity is using it, then go lobby the library board, but don't attack censorware as a societal evil."
Because Mattel is one of the first companies to defend its copyright in such an aggressive way (the current legal fracas surrounding Napster.com and illegally dubbed CDs is another), Schwartz says the case has great implications for future copyright cases involving the Web.
"There seems to be this utopian view of the Internet that it is a big place, that it's about free love, and there's so many users you can't enforce the law," Schwartz says. "This case will encourage copyright holders to be more aggressive about protecting their rights. We've proven it can be done. If we act aggressively, we can get these hack sites shut down in days. Hackers don't have the backbone to stand up. Once they're held accountable, they turtle."
But Lessig says the ACLU has a valid complaint. "The ACLU is rightfully concerned about the extraordinary language of the injunction," Lessig says. "And the effect of this injunction is to make illegal the use of this hack program, which is a legitimate concern. It's a bootstrap to censor all critics of censorware. The object of the appeal is so the court will limit the scope of this injunction."
"Copyright cases are free speech cases," Lessig continues. "Copyright lawyers imagine themselves living in a world exempt from free speech issues, but that's coming to an end because copyright law is affecting the ordinary citizen in a way it has not before [because of the Internet]. This is one of the first cases to show the direct conflict and tension between the two."
Additional Links:
Mattel's site on cyber patrol:
http://www.cyberpatrol.com
The ACLU site with links to most court docs:
http://www.aclu.org/news/2000/n040500b.html
Former mirror site with links to practically everything that has been written about the lawsuit:
http://www.waldo.net/cp
Matthew Skala's web site with a good FAQ on the case:
http://www.islandnet.com/~mskala/
