An Open Letter to the SPA

(To Ken Wasch, Software Publishers Association founder and president)

Dear Ken:

You probably don't remember me, but we spoke circa 1985 or '86. I was practicing law then, specializing in computer law, and I was representing a software publisher whose software was being ripped off on bulletin boards across America. I may have been the first attorney in the United States to sue a bulletin board sysop for software piracy, and I called to bring you up to speed on the case. You sent some money towards my legal fees. Later on, you jumped into the business of suing software pirates yourself in a major way.

I sued four or five bulletin boards before I got out of it, and won consent injunctions and financial settlements in every case. The difference between what I was doing back then, and what you are doing now, is patently obvious. I was suing BBS's with names like "The Pirate's Lair", where the top screen bore messages like "Upload something juicy for admission to the inner sanctum." My client would gain admission and would ascertain that illegal copies of his programs were being stored on the board, with the sysop's knowledge.

You are suing Internet service providers, and you are complaining that pages stored on their servers provide links to other Web pages which support piracy or discuss copying techniques. Its right there on your Web pages. In your "ISP Code of Conduct", you require that an ISP refrain from

the linking of one or more sites on its server(s) to one or more other sites that contain pirated computer programs and/or cracker material.... unless such linking clearly appears to be intended for lawful purposes.

And, in another document, called, "Why the Risk Exists--Theories of Copyright Infringement," you claim that "contributory infringment" under copyright law includes:

linking to FTP sites where software may be unlawfully obtained; informing others of FTP sites where software may be unlawfully obtained.

You've gone way overboard. You yourself are an attorney and you have been in the copyright enforcement business long enough to know that the speech you are describing cannot possibly be contributory infringement.

A link is the online equivalent of a footnote. If I published a book tomorrow on software piracy and cited in a footnote a book on how to pirate software, would you sue me? If I published a manual on how to commit software piracy, in fact you could not sue me; the First Amendment protects not only the speech we approve of, but even some quite despicable speech; otherwise it wouldn't count for anything.

Add to this the fact that the ISP itself is at one remove from the Web page containing a link. It is simply providing storage space for a page maintained by someone else, and it doesn't have the bandwidth to review all the Web pages contained on its equipment. Though the law does not yet give ISP's this protection, it is no more appropriate for them to screen all user pages than it would be for a bookstore to perform a legal review of the contents of all books which it carries or for the phone company to screen its customer's phone calls.

I have no objections to your suing software pirates and, as I said at the outset, have done so myself. But your lawsuit against Sameer Parekh of Community Connection, and the phrasing of your online materials on ISP's, suggest very strongly, in my opinion, that your policy extends to suing quite innocent ISP's in order to get user Web pages unplugged.

By suing ISP's for contributory infringment, you are shamelessly exploiting the average federal judge's continuing ignorance about the Internet. If the judges before whom you filed these actions clearly recognized that there is no difference, for these purposes, between a Web page and a book or magazine, they would dismiss your complaint out of hand, and might very well entertain a request for Rule 11 sanctions for your unsupported interpretations of the contributory infringment laws.

ISP's today are the weak link in the system of online freedom of expression. Unlike the telephone company, they have no legal immunity for the content of the messages they carry. Strong freedom of speech protection for the Internet, harbingered by the decision in ACLU v. Reno, has little practical value if any private party opposed to the expression of an idea can effectively use the threat of litigation to bully an ISP into pulling the plug on a Web page.

Most ISP's, especially small ones, simply do not have the financial resources or legal representation to defend a lawsuit, even a groundless one, and will therefore always err on the side of unplugging a user's web pages. The vulnerability of ISP's to tactics like yours leaves individual users, making noncommercial uses of the Web, extremely vulnerable.

I understand that your motivation is to be assertive in defense of your members' interests. However, you also have a responsibility to respect the community of which you form a part. I find your aggressive pursuit of ISP's to be disrespectful of two overlapping communities: software users, many of whom maintain Web pages or at least use the Web, and the online community, of which you form a part by maintaining Web pages of your own.

I am on the board of directors of two software companies, and would never consider having either of them join your organization for as long as you pursue your policy against ISP's. In addition, I will not purchase the software of any members of your organizations who lend their names to lawsuits which you bring against ISP's, and I would hope that others who read this letter--which I am posting on the Internet--will consider doing the same.

Sincerely yours,
Jonathan Wallace