"What technologists do is create technologies," says Kan. "What policymakers do is try to control technologies that do ill and what criminals do is use the technology for ill purposes. So go after the criminals, not the technologists."

Kan says programmers are being singled out. The law is threatening to abandon them even though it has previously protected the people who invented cars, guns, bombs and everything that's come before.

"Computer technologists should not be held to a higher standard than anyone else," he argues. "These questions were never asked when automobiles, paper clips, candles and computers themselves were invented. Fortunately not, because if society were bound to invent technologies which could only be used entirely within the law, then we would still be sitting in caves sucking our feet."

And Clarke points out that even other technologists seem to be held in higher legal regard than the file-swappers. "The creators of the Internet know that the Internet can be used for violation of copyright, yet does that make them legally liable?" asks Clarke. "Creators of women's pantyhose know that they can be and are being used in bank robberies, but does that make them liable?"

One hope left to programmers lies with the First Amendment. Garbus, Corley and others are relying on the idea that code is speech, that computer science is expressed as code and that if computer code is not afforded full First Amendment protection -- in the words of Carnegie Mellon computer scientist David Touretzky -- "anyone who publishes a computer program is at risk."

On the last day of the New York DeCSS trial last month, Touretzky argued that if the court cracked down on people who simply posted code, it would be limiting his ability to discuss, analyze and tinker with it; it could conceivably take away his right to work and even to express himself.

"We're looking at a new kind of vulnerability that we didn't have before. The idea that we can't talk about things is pretty un-American and dangerous," he said in an interview. Besides, "It's not always easy to foresee the effects of technology and a lot of times people are wrong," he added, pointing to the much used example of VCRs, which rather than destroying the movie industry have made it far richer.

In arguing for the right to share code that may be used illegally by others, Touretzky asked the court to protect the freedom to share code as it does the freedom of speech. "My theories are expressed as computer programs," he said.

But this argument is hardly foolproof. If the courts rule that DeCSS or Napster's code is speech, for instance, it won't necessarily follow that they are protected forms of speech. "Conduct is more important," Garbus says. "It outweighs speech. That's why in a draft card case called the O'Brien case, in which a guy burned a draft card, the courts held that that you can't burn something of value. You can't turn over a car for speech, for example."

With that in mind, some attorneys suggest that developers take an active role in changing the conduct on their services. "There's nothing about their programs that says they're only for piracy," says Cohn. But if that's the only thing they are used for, they may still find themselves in trouble. After all, the most damning evidence against Napster, in Patel's opinion, seemed to be that 87 percent of the songs were copyrighted.

"I think people who want to see this system go forward need to post other things -- public documents and source code for example," says Cohn. "Public domain items need to go on these networks. They need to be filled with 'substantial non-infringing uses.'"

To a certain extent this is already happening. Freenet's indexes -- text lists of what people say they've posted -- contain not just Britney Spears MP3s, but also a Commodore 64 programmer's reference guide and the Unabomber manifesto. It also contains editorial comments like "INSERT ALL YOUR METALLICA. FUCK LARS," but you get the point.

Still, this brings up the question: Will technologists have to clean up the messes made by the unruly, law-ignoring masses who might make use of their software? And, if so, shouldn't we be outraged?

Bill Joy, Sun Microsystems' chief scientist, says no, times have changed. "Most scientists, historically, have believed that discovering things was always OK, that they weren't responsible for uses ... That was in the days when there was a sharper distinction between pure and applied science, and between science and technology ..."

"Now, it's harder to argue that inventors aren't responsible for consequences," he says. "I think the common-sense answer is that scientists and technologists have to take responsibility. This is why I have argued, among other steps, to start with an oath for scientists along the lines of the Hippocratic oath. I think scientists and technologists need to make this part of their culture."

That, however, is a process likely to be as lengthy and as contentious as any of the lawsuits against new technologies now making their way through the courts. And in the meantime, coders like Reimerdes still believe in the inherent power of technology -- arguing that, with legal sanction or not, software and the applications people put it to, will certainly continue to unfold.

"It's possible that the RIAA/MPAA will try and crush all the coders to ensure that their new business models survive," says Reimerdes. "The DeCSS lawsuit was a scary example of just how far the corporations will go to try to stop technology and computer science. But more lawsuits against technology will just mean more ingenious software being written. You cannot silence the techno-elite. The idea has already been planted and others will help it evolve."

The Free Software Project
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