"They realize they cannot shut down these decentralized systems," the 23-year-old Queens, N.Y., native wrote in an e-mail that morning.

Then, at about 8 p.m. EDT, Reimerdes began to reconsider. He discovered in a chat room that U.S. District Judge Marilyn Hall Patel had issued a sweeping injunction against Napster, blaming Napster's founder, Shawn Fanning, for creating a "monster" that has encouraged millions of people to download pirated MP3s. In her unforgiving ruling, Patel ordered the service to remove copyrighted songs within a matter of days -- a sentence that would require Napster to shut down.

Suddenly, the scales seemed tipped. If Napster could be held responsible for how other people use its technology, couldn't Reimerdes, whose Yo!NK gave people the ability to find music and movies all over the Web -- copyright protected or not -- find himself in hot water? His program might be unstoppable, but he wasn't counting on being held accountable for what others might do with it.

Even worse, as an independent programmer, couldn't Reimerdes be held personally liable for the actions of Yo!NK's users, if he was sued by the litigious recording or movie industries for contributory copyright infringement? Fanning is shielded by the corporate veil that was created when he transferred the software's ownership to Napster, but in Reimerdes' case, couldn't a legal defeat cost him his car, his apartment, even his computer? Instead of waiting to find out, he went in search of a lawyer the very next day.

At about the same time, Freenet creator Ian Clarke experienced a similar change of heart. When Patel's ruling first broke, Clarke's e-mails were filled with fiery defenses, and on CNN, the baby-faced Irish programmer told the world he wasn't worried about the ruling, since -- with no central servers -- his file-swapping software could never be stopped. But by early last week Clarke had changed his tune and was looking for ways to protect himself. "I'm investigating setting up a nonprofit corporation in conjunction with an L.A.-based lawyer," he now says.

Is this newfound interest in the law warranted -- or are these two programmers just paranoid? Well, if you listen to the attorneys, it sounds like a storm of lawsuits could rain down on developers at any moment.

An appellate court stayed Patel's decision until summer's end, leaving the gates open a bit longer to the MP3 free-for-all. But Howard King, an attorney for Metallica -- which has brought its own suit against Napster -- figures Patel's ruling, if upheld, will give record companies and movie studios "the ability to bring actions for damages against users and developers -- actions that will stop them in their tracks." And Cindy Cohn, a San Mateo, Calif., attorney who successfully defended a professor's rights to share encryption code with his colleagues, says "If Judge Patel ... is upheld, then there is trace-back liability to the authors. It's very likely that the creators of these programs will find themselves in court."

It sounds a bit scary. And Reimerdes has been in this spot before. He was one of three webmasters sued by several movie studios late last year for posting the code of DeCSS, a program that decrypts DVDs. In that case, he reached a pretty easy settlement, by agreeing to take down the DeCSS code and not provide links to sites that posted it. But, his fellow defendant, Eric Corley, aka Emmanuel Goldstein, the publisher of the hacker quarterly 2600, is still facing down the movie studios, who will ask that Corley pay their legal fees (surely a bankrupting proposition) if they manage to win the case and permanently strip him of his right to post the code. And a separate DeCSS case in California is proceeding, with the DVD player industry adding new defendants as it finds them -- everyone from alleged DeCSS creators like Jon Johansen to Copyleft, a company that sells T-shirts adorned with the DeCSS code. In essence, the DVD cases go one step beyond the Napster suit -- making not just the creators, but even the distributors of code, somehow accountable for the uses it may be put to by others.

Free speech, copyright, piracy and the fundamental nature of source code -- ever since the Internet began its surge to cultural and economic prominence, these concepts have swirled around each other in a confusing and contradictory morass. Now, in courtrooms from coast to coast, judges are attempting to bring order to the burgeoning online chaos. And from the first indications, programmer freedom may end up coming under the most sustained assault yet seen.

If courts decide that software's creators are responsible for how their creations are used, we could find ourselves facing a colossal cultural shift. Ever since 1945, when the physicist J. Robert Oppenheimer defended his role in building the nuclear bomb by saying, in essence, "I built the bomb, I didn't drop it," American inventors have enjoyed the luxury of moral indifference. Gunmakers, carmakers and plenty of other industries have made successful use of this argument.

But legal experts say it's not so clear-cut for software. For one thing, courts haven't even decided how to classify code -- is it primarily a tool, a service, a work of art? And what to do about the fact that one developer's code has the inherent ability to morph in the hands of another? Unless technologists take a leading role in shaping the legal debate, says Jennifer Granick, a San Francisco lawyer who regularly defends people accused of computer crimes, Oppenheimer's legacy of freedom could be lost.

"People have always said that the law doesn't matter because technology will outpace it," Granick says. "The idea is that you'll never be able to stop things like Napster or its new iterations -- the horse is out of the barn. But the law is a lot more powerful than people realize. It has the ability to severely retard or stop these things entirely."

The Free Software Project
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