And more recently, at this year's Def Con, the annual hackers conference held in Las Vegas (which took place the weekend after Patel's injunction), "participants couldn't stop talking about the law," Granick says. She sits on a legal panel every year, but typically questions center on criminal liability: what will land people in jail. "This year, most of the questions were directed at the civil lawyer," Granick says. "They're not worried about going to jail. They're worried about losing their businesses, their cars, their homes. They realize that they may be at risk."

And these worries will probably result in self-censorship, argues Martin Garbus. "Whether a lawsuit is valid or not, the power of a lawsuit stops people," says the First Amendment attorney, who is defending Corley/Goldstein in the DeCSS case. "The real question isn't whether or not Corley or Napster wins or loses, it's about how much the content industries are willing to throw at this issue." Looking at the number of lawsuits they've started -- MP3.com, Napster, Scour, DeCSS, iCraveTV and others -- it's easy to see that "they're ready to throw a lot. The mere fact that you know someone is out there -- with the money and desire to sue -- keeps you locked up," Garbus asserts.

Certainly Remeirdes is thinking about what might happen to him if the RIAA or the MPAA -- which have already brought seven lawsuits against companies making possible the online distribution of various forms of entertainment -- decide to make an example of him.

"I hired a lawyer to preserve the concept in case the media companies decide to sue me," he says. "If the MPAA was going to come after me again, I wanted to make sure everything would be in order. I'm not going down without a fight. The worst thing that could happen would be to see federal judges censoring my coding."

Whether or not that happens depends, in large part, on how the courts interpret copyright law as it applies to software. And copyright is a pretty murky area of the law. "Up until 1982 or 1985, copyright law was this very obscure branch of the law where you only had a few people in New York and L.A. who practiced it," says Mark Radcliffe, a copyright specialist at the Palo Alto, Calif., law firm of Gray Carey Ware and Friedenrich. Unlike, say, product liability law, which is rich with cases of injury and harm, furnishing judges with a strong body of precedent to rely on, copyright law typically has come to play only in minor skirmishes that often settled quickly, leaving little of the legal nuance that most judges rely on. "There are still so many things up that are up in the air," he says.

Under copyright law, for example, Clarke, Reimerdes and the developers of other file-sharing software could be held liable for contributory infringement if it can be proven that they profit from illegal uses of the service. Since no one has made any money from file-sharing just yet -- not even Napster -- they would seem to have a foolproof defense.

But, it turns out that "profit" can be construed in a variety of ways. "Even if it's not in the form of cash, judges often find direct financial interest," Radcliffe points out, noting that the court came down against a swap meet organizer who failed to keep pirated goods out of the flea market. Rather than considering the organizer's role to be that of a landlord, who can't be held responsible for what occurs on his property, the court ruled that organizers profited from a vendor selling pirated Latin music tapes, "because the seller draws more people to the meet, who then pay for hot dogs and soda, giving the swap meet owner a profit," Radcliffe says. You can bet this precedent will be trotted out when and if Napster and its brethren ever start selling advertising.

And the profit question barely touches on larger holes in the law, including the fact that there is still no formalized legal definition for software. Is it a product subject to the same Uniform Commercial Code that would hold Maytag responsible if a washing machine electrocuted its user? Or because it can be repeatedly upgraded and changed, is it more like an ISP -- a service that's governed by the terms of a contract between its operator and user? Or is it speech, worthy of protection for its contribution to "an open exchange of ideas?"

No single statute or decision spells this out. Generally, the only thing the courts have established is that when software is incorporated into other products, it is considered a product. Radcliffe says that in one classic case, the courts held the maker of X-ray machine software liable for sending out a dangerous level of radiation -- which suggests that if the GPS system in your Mercedes urges you to plunge down a hillside, the software's designer would probably be found liable.

But this does little to solve the problem of pure software -- things without a single clear function, code that can do as many things as a ball of Silly Putty. And it says even less about hybrids like Napster, in which you download a product that gives you access to a constantly changing service. Add to this the fact that software is by its very nature a malleable entity, and what you've got is a legal quandary.

What, from a legal point of view, is software? "This is all a new area," answers King, Metallica's lawyer. "I don't think anyone knows the answer."

The Free Software Project
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