No one knows that better than the defendants in the DeCSS case, who are fighting the movie industry for the right to link to computer code that theoretically can be used to break anti-copying features on DVDs.
The Motion Picture Association of America last year sued Eric Corley and his online hacker publication, 2600, saying he violated copyright law by posting the code. The Electronic Frontier Foundation, which is representing Corley, has lost the first round of the case, although it is appealing.
"When basic rights are attacked, usually it's the fringe that's attacked first," Corley said this week after an appeals court hearing in his case.
Sporting long tangles of dark curls streaming from his receding hairline, a tattered black blazer and tennis shoes, Corley fits the stereotype of a hacker often portrayed in movies and books: unkempt, surly and unafraid to test corporate interests stepping on the rights of the little guy.
Now, however, free-speech advocates may be looking to a new candidate for poster child in their fight against the copyright holders. A Princeton professor who was barred last week from presenting a research paper, Edward Felten may be the new best hope for turning the tables in the copyright debate.
Groups such as the American Civil Liberties Union, American Library Association and EFF have been wildly successful overturning crackdowns on Internet content, including the Communications Decency Act. But so far, they've been on the losing side of battles to protect free speech in the face of corporate copyright owners seeking unprecedented digital privileges--battles such as the DeCSS case.
Both types of cases raise constitutional challenges to laws aimed at regulating the Internet, but the differences between them are as telling as the similarities. Although the content battles hearken back to age-old debates over censorship, the digital copyright debate offers few precedents. In addition, the free-speech implications of digital copyright law, which focus on attempts to limit discussions about copying technology, are arguably more subtle than other prohibitions on publishing.
According to people close to the cases, there is another important difference: the clients.
In the content crackdown cases, plaintiffs have been sympathetic sorts such as librarians or educators. In cases such as DeCSS, the free-speech fight is being waged by marginal characters who might not have much appeal to mainstream Americans.
Although free speech is supposed to protect expression made by society's fringe elements as well as by the mainstream, public opinion and even judges can be swayed by tales of mischievous crackers poised to attack your computer.
"As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."
