"A scream is better than a thesis," Emerson wrote, his point being, of course, that making a lot of noise gets more attention than a carefully worded argument. But few screams were to be heard at a poorly attended press conference held Thursday at Stanford Law School to protest the Digital Millennium Copyright Act (DMCA). Instead, critics appeared to pin their hopes on a private strategy meeting and a wide-ranging court campaign -- a campaign that, so far, hasn't been working to the advantage of DMCA foes.
Technically, the gathering at the school was labeled a "protest" inspired by hearings held in a nearby campus classroom by the U.S. Copyright Office. The hearings are being conducted to allow public comment on how the DMCA might best incorporate exemptions to its strictures forbidding the creation and distribution of tools that circumvent copyright protection. But with only a dozen free software fans passing out flyers to the occasional passerby, the protest and even the hearing were unlikely to make much of an impact on the public debate.
Indeed, despite the chance to argue for exemptions that would be put in place at the end of the year and the opportunity to alter the law before it clamps down any further on what the anti-DMCA movement considers its right to free speech, many protesters left the premises just as the hearing started and organizers said they were happy to simply have a few reporters in attendance.
The real benefit of the gathering had more to do with legal strategy, said protest organizer Chris DiBona.
After the press conference, DiBona, the "Linux evangelist" at VA Linux, a manufacturer of computer hardware pre-installed with Linux-based operating systems, said, "We've got a lot of cases going on both coasts." He was referring to four legal actions involving DeCSS, a utility that allows computers running Linux to play DVDs. Eight movie studios are suing distributors of the program, including the so-called "hacker quarterly" 2600. "It's important to get everyone together for strategy and to clarify the thinking behind where we're going."
The focus on legal strategy isn't a bad idea. In recent months, as copyright holders have won a string of courtroom success, the need for some kind of coordinated approach has become painfully obvious.
On Jan. 20, for example, a judge enjoined 2600 from even linking to sites that contained information on the DeCSS program -- "limiting their right to free speech in an unprecedented way," says Eben Moglen, a law professor at Columbia who is assisting the DeCSS defense team.
Meanwhile, in the music arena, a New York federal judge ruled against the MP3 access site MP3.com and in favor of the Recording Industry Association of America, determining that one of MP3.com's new services was in fact replaying music that it had copied illegally.
And in the most high-profile clash between the recording industry and the Internet, Napster, which provides swapping software that makes it easier to find and play MP3s, failed to convince a judge that it qualified for DMCA "safe harbor" protection because no files actually resided on or passed through its servers.
But these defeats tell only half the story, say DMCA critics. "Court cases are cropping up like mushrooms because the law is so vague," says Frederick Weingarten, director of the American Library Association's Office for Information Technology Policy, and a member of the press conference panel. "In the courts, that's where the boundaries of the law will really be defined."
Indeed, the law's virginal status has already sprouted some interesting pranks. Pushing at the limits of the term "distribution," for example, a crowd of free software fans took to the streets of New York this winter and passed out the code for DeCSS on T-shirts and balloons. And this week, after Metallica asked Napster, the popular music-swapping software company, to ban 300,000 users from its service, Napster used the DMCA's fine print to try to gain a few back. Specifically, the company encouraged users who believed they had been misidentified to let Metallica know. If the band failed to prosecute within 10 days, according to the law, Napster could reinstate them.
Such victories appear to be small successes as viewed against the larger setbacks. Big money has big power -- as Martin Garbus, an attorney for 2600 and the other three defendants, notes, "The concerns [of anti-DMCA critics] were not paid attention to in Congress and they won't be paid attention to here because there are very substantial financial interests standing in the way."
It's hard not to hear defeat in these words; hard not to wish that the protest actually generated some steam -- or screams. But then again, no matter how important these issues may seem to geeks who just want their MP3s and DVDs, their concerns may be best expressed in courtrooms rather than on college campuses. As Garbus put it, "It's not like Vietnam."