[Upd-discuss] Ruling in Cyber Patrol Copyright Controversy

[JHBrandt@aol.com]

For those of you who don't get the ACLU news releases, there has been a recent lawsuit of interest to UPD.

The toy company Mattel, Inc., which now owns the Cyber Patrol internet "Censorware" program, sued two foreign nationals (one Canadian and one Swede) for copyright infringement; specifically, for writing and distributing a program which decrypts Cyber Patrol's "blacklist" of blocked Web sites.  In response, some Web sites within the U.S., as well as some foreign Web sites, mirrored the program in question.

When Judge Edward F. Harrington granted Mattel's motion for a 10-day temporary restraining order against the decrypting program's authors, Mattel sent legal notices to all Web sites indicating they would be bound by the restraining order, as well as any future decisions in the case.  This is what got the ACLU involved.  The way I understand their press release, they filed a motion to intervene on behalf of three Web site operators who had been threatened by Mattel.

When it became apparent that Judge Harrington was all but certain to rule in favor of Mattel, the authors of the decrypting program settled the suit.  Unfortunately, this left the status of the mirror sites *un*settled.

Judge Harrington apparently prefers to keep it that way. According to the ACLU, "In an opinion issued late [Tuesday] Judge Edward F. Harrington refused to say whether U.S. website operators who posted 'mirror' copies of the program are subject to the settlement terms.  He also appeared to suggest that mirror sites could test that question only by risking a contempt charge that could lead to fines and jail." (Apparently this judge has somehow managed not to learn of the existence of the Declaratory Judgement Act.)

The ACLU went on to quote the judge as asking, rhetorically, "...who is to control the educational and intellectual nourishment of young children - the parents or the purveyors of pornography and the merchants of death and violence."

Oh, puhlease.  This case had nothing to do with parents vs. pornographers and "merchants of death and violence" (whoever that is).  It was a classic copyright case involving reverse engineering, which has long been held legal under U.S. copyright law.  In fact, the whole point of the program was to give *more* power to "parents" by letting them see just what their Cyber Cop considered "offensive."  Too bad the judge was so blinded by his hatred of erotica to actually figure this out.

Mattel misrepresented this case in the media, saying they were suing because the program also decrypts Cyber Patrol's password, which would allow someone to use the decryption program to turn Cyber Patrol off.  But "bypass" programs have existed for a couple of years now, and Mattel must have known about them, because they blocked the Web sites that carried the offending programs (which is what the ACLU argued they could have done in this case)!  Besides, Mattel quickly changed Cyber Patrol so that the decryption program no longer works with the current version.

It seems that what really bothered Mattel was the thought that people could now see their blacklist, warts, mistakes, "hidden agendas," and all, for themselves.  At any rate, it's difficult to see how Mattel, let alone Judge Harrington, could have made this into a copyright infringement case.  I guess it's possible that the decryption program "copied" the decryption routine from Cyber Patrol itself, but that seems unlikely, and it would obviously be easy to get around in any case.  More likely they claimed it didn't infringe directly but merely enabled infringement, and that it had no "substantial non-infringing use" (to quote from the Betamax decision).  I don't think that claim would pass a reality check, but if you throw around enough scare words like "pornography," sometimes you can fool people and get away with it.