The Broken Wheels of Justice
We are a nation founded upon the very principles of fairness and equality - at least on paper. We like to tell ourselves that there is equal justice under law and that everyone is entitled to their day in court. The truth will set you free and all that. But as we get to experience more of the legal system, it becomes painfully clear that such things are fleeting at best, next to nonexistent at worst.
Take the most recent absurdity to come our way ("most recent" meaning at the time this was written - we can only imagine what other legal battles we'll be facing by the time you read this). You may remember back in October we got one of those nasty letters from General Motors accusing us of trademark infringement for daring to register f*ckgeneralmotors.com. As if anyone would be confused into thinking that such a site was sanctioned by General Motors! We had a good laugh over it back then, as we did with all of the other corporations that tried to quell dissent and criticism by threatening sites which insulted their precious corporate image. We actually had anticipated such attempts, which is one of the reasons why the domains were registered in the first place. And in all of those cases, free speech took the upper-hand - nobody was willing to step forward officially and challenge the inherent right of people to express themselves.
Until now. In fact, it was right when we were in the middle of preparing for our Second Circuit appeal in the DeCSS case that we became aware of bungled attempts being made to serve us with more court papers. Another lawsuit. But instead of coming from General Motors, the papers were being filed on behalf of Ford! There had to be some mistake, we thought, since we didn't even have a domain with Ford's name in it. It turned out we didn't have to. You see, right before General Motors started to threaten us, we hadn't even come up with an actual site yet. We didn't even tell anybody about it. All the publicity for the domain came from the General Motors threat. So while we were waiting for the perfect anti-General Motors site to come along, we pointed the domain at their main competitor - Ford. And then we kind of got distracted as we were working on the DeCSS appeal.
Without any kind of a warning or attempt to contact anyone at 2600, Ford simply filed a lawsuit against us. They claimed that we had no right to link to them and that we were somehow engaging in fraudulent behavior - simply by pointing the domain at them! Their logic went something like this: someone would take it upon themselves to type www.fuckgeneralmotors.com into their browser, would then be transported to www.ford.com, and would wind up being mortally insulted, thinking that Ford was using nasty language against their competitors. Ford would lose customers and would have its image irreparably damaged - all because of us.
It was still funny to see how these corporations interpreted and attacked the concept of free speech. But now it was no longer simply a threat - they had actually gone and sued us! And we had no choice but to pool our resources and launch a defense.
At press time we were still waiting for a verdict - a hopeful sign since Ford had wanted the judge to rule against us immediately. If the judge had thought we were a serious threat to Ford, he would have no doubt ruled on the spot. But this isn't completely about whether or not we win. A major injustice here is that this kind of thing happens in the first place without any kind of accountability. Being dragged into court can be extremely costly and draining, regardless of how things turn out. We first saw this back in 1990 when Craig Neidorf of Phrack was charged with a crime for publishing information in an electronic magazine. Even though the charges were dropped, he was left with crippling legal bills. Where was the vindication, the day in court we all imagine where the world finds out that we are innocent of wrongdoing and everything somehow gets made right?
Since those early days, we've seen scores of people get charged with crimes of a ridiculous and absurd nature. We've seen many of them sent to prison. We've seen preposterous lawsuits filed by huge corporations that crush the endeavors of individuals, such as when General Motors put Satellite Watch News out of business, simply for publishing technical information that their DirecTV subsidiary didn't want people to know. These are true injustices - make no mistake about it. But the injustice takes on an even more serious tone when it no longer seems to matter whether or not you're found guilty or innocent - whether you win or lose. If you're even brought into the game, you lose regardless of whether or not you win. Sounds crazy? It is. And it's what the American justice system has turned into.
Take the case of ShapeShifter, our layout artist, who was arrested during the Republican National Convention last year in Philadelphia. From the beginning, it was clear that this was a case of intimidation by the authorities, who seemed to have taken lessons in crowd control from the Dictator's Handbook. Their goal was to crush any sign of dissent before the first chant of a protester was heard. Even the bail - half a million dollars in ShapeShifter's case, double that in others - was designed to make it impossible for people to be released before the convention was over. It was previously unheard of for people to be held on such astronomically high bails for such trivial offenses, which was the most that people were able to be charged with. When it came time for these cases to actually be heard in court, the vast majority of them were dropped for lack of evidence. ShapeShifter was one of the people who was completely vindicated of any wrongdoing.
So should this be considered a happy ending? Once again, the answer is no. Despite being found innocent of all charges, the very fact that ShapeShifter was brought into the arena of the legal system means that, by default, he loses. Remember the half million dollar bail? Eventually that was lowered to the point where $10,000 in cash was enough to get him released. You would think that the bail would have been returned when he showed up for the trial. It wasn't. You would think the bail would have been returned when all charges against him were dropped. It still wasn't. You would think after forcing a hearing on the matter that the full amount would be given back to the people who coughed it up, perhaps with an apology, or maybe even with the interest it had been gathering all this time. But we don't live in television. We live in 21st century America, where people are presumed guilty even after being found innocent.
In the end, the court ruled that it had the right to keep $750 for "administrative costs." And so it goes.
Every time we find ourselves in a court of law, we seem to have lost by default, something even a victory can't seem to change. Not that we don't relish the idea of standing up to any of the bullies who put us through this hell. But every time we do, it costs us and not just financially. We have to devote tremendous resources into the act of simply defending who we are and what we've been doing for all these years. And one has to wonder at the timing. The day before the "Free Kevin" battle came to an end was the day an injunction came down against us, starting the DeCSS case. And it was while we were putting together the final touches on the DeCSS appeal that the Ford papers were filed. We know all about the eternal vigilance thing - we just didn't expect to be living it so literally.
Many would say there's a simple solution to these problems. Don't put yourself in a position where you can be a victim. Recognize the threats and avoid them. It's not an uncommon sentiment. And that would have saved us the legal fees from the Ford case. It would have saved the Electronic Frontier Foundation more than a million dollars when they stepped up to defend us in the DeCSS case. And it would have saved ShapeShifter a week in jail. But what would have been gained? Absolutely nothing.
But is not gaining anything really that bad since nothing would have been lost either? The answer we always seem to reach after asking these very questions is that, yes, it is a bad thing. Because by not fighting, we do lose - we lose by default. The loss may not be immediately obvious but its effects become visible pretty quickly. Maybe the next group who registers a site that some corporate giant objects to will be intimidated into agreeing that people indeed don't have the right to criticize them. And that will be the precedent until someone else comes along to challenge it.
Same thing with the DeCSS case. Agreeing to stifle speech would have meant that someone else would one day have to fight to get it back. And that gets a whole lot harder when everyone gets used to the idea that this right no longer exists. All of the unpleasant things that have occurred in the last decade or two - mandatory drug testing, cops in schools, prisons sprouting up everywhere, the growing "need" for surveillance - will all be so much harder, if not completely impossible, to turn back because we let ourselves get used to them. It's always easier to not get involved and thereby reduce the risk of getting arrested for standing on the wrong sidewalk or sued for angering the wrong people. But by not getting involved, we wind up endorsing whatever direction things are moving in. And it's usually not a very good direction.
While we willingly accept the cost and the risk of going to battle over the issues we believe in, we must object to the way the system penalizes any of us just for being dragged into the legal game. If cases are found to be without merit, the defendant should not be punished at all, financially or otherwise. Perhaps more people would be willing to fight these battles if losing the case was truly the only way to lose.
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In happier news, our next HOPE conference - H2K2 - has already been finalized and planned for July 12-14, 2002. We now have more than four times the space of the previous conference which allows for practically unlimited possibilities. You can help in the planning stages by joining the H2K2 mailing list - send an e-mail to majordomo@2600.com and type "subscribe h2k2" on the first line of the message. Or just check our web sites at www.hope.net and www.h2k2.net.