The Emperor's New Suit

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The Strange World of Tapu would make a grown crypto-anarchist, unabombin',
cellular-phone crackin', antisocial cyberpunk weep in awe. This Web page is
truly an achievement. It's the one-stop directory for all manner of shady
business.

I wish I could provide the address to the spot, but I can't. Not because it
would be illegal. There's nothing even vaguely illegal on Tapu's site; it
consists almost entirely of links to other Web sites. Yet if we printed that
URL, City Paper and yours truly might find themselves on the receiving end
of a lawsuit from the Software Publishers Association, the trade
organization for the desktop business-software industry.

Last week I wrote about the SPA's initiative aimed at cracking down on
Internet piracy (Cyberpunk, 10/23). What is interesting about this approach
is that the association is not going after those who post illegal copies of
software, but rather those whose Web pages contain pointers to "warez"
sites. Whether those pointers infringe on copyright laws is questionable.

One of the SPA campaign's first targets was the Strange World page, which
included such links. Tapu informed me by E-mail that on September 26 she
received a call from Jeff McGough, president of Intergate, Tapu's Internet
service provider (Tapu prefers not to give out her last name or where she
lives). McGough said he was destroying all of Tapu's Web pages, even those
unconnected to the Strange World page, at the behest of the SPA, which
threatened a lawsuit if he didn't take action within 24 hours. "It was
ludicrous," McGough says. "But neither I nor Tapu had the money to tell them
to take a flying leap."

"I was shocked," Tapu writes. "It was pretty confusing, because my page was
pretty content-free, nothing but links.." (Ironically, once word got around
that Tapu's page was removed, it mysteriously popped up in 23 other
locations-in at least eight different countries-courtesy of on-line
sympathizers. At least a few of these copies can be found pretty easily
through a Yahoo search.)

At first glance the SPA's actions may seem a bit tangential, like the FBI
prosecuting the publishers of the telephone book which held the Ryder ad
that Timothy McVeigh allegedly referred to when shopping for a truck to
drive to Oklahoma in. Naturally this case has the civil libertarians up in
arms. They see SPA's action as a serious threat to free speech.

Robert Costner of Electronic Frontiers Georgia, an advocacy group for
on-line civil liberties, notes that the decision to remove material "was
made not on the merits of the case, but on the threat of civil action. . . .
This is the most chilling aspect of the SPA's actions."

However, Joshua Bauchner, SPA litigation coordinator, argues that using the
right to free speech to defend the existence of warez sites is simply
irrelevant. "Copyright infringement is not protected by the First Amendment,
just like the First Amendment does not give anyone the right to sell drugs,"
he tells me.

This is a valid point. But here is the SPA's dirty little secret: There is
no law forbidding the direct promotion of piracy. You can search the U.S.
Code 17, chapter one-the section covering copyright law-but you won't find a
trace of it. (The code can be found on the Web site of Cornell University's
Legal Information Institute)

Even the U.S. Supreme Court has noted, "The Copyright Act does not expressly
render anyone liable for infringement committed by another" (Sony
Corporation v. Universal City Studios, 464 U.S. 436).

Which is not to say someone can't possibly lose their shirt over it. In the
legal world, Bauchner says, there is a fairly well-known concept called
"contributory infringement," and it's what SPA is basing its suit on.

Contributory infringement, as defined by William Patry in the well-regarded
Copyright Law and Practice, occurs when "the defendant induces, causes, or
materially contributes to a third party's infringing activity." The SPA is
arguing that the creation of sites that have pointers to sites with "warez,"
"hacker," or "cracker" information is promoting or "materially contributing"
to infringement.

SPA is leaning heavily on Patry's definition, which was formed entirely in
connection with cases dealing with older media forms, such as Supreme Court
opinions on the legality of taping television shows at home and of record
stores allowing in-house taping of music. Bauchner also sites a case in
which a department-store chain was successfully sued for allowing an
independent vendor to sell bootleg records in its stores.

As much as Bauchner feels the SPA has a pretty strong case based on these
precedents, he admits there hasn't been a defining case on the matter as it
applies to cyberspace.

How applicable the concept of contributory infringement is to the Web
depends largely on how well it is accepted in the legal community in the
next few years. So heads up.

As for Tapu, she remains unable to put up her home page. "I guess I didn't
realize that anybody can just threaten people with a frivolous lawsuit,"
Tapu writes. "If the victim doesn't have any money, they pretty much have to
do whatever the perpetrator wants."

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