It used to be, before technology became what it is today, that the past was past, and that what was done was done beyond any hope of redoing it. As Justice Johnson pointed out in Fletcher v. Peck, 10 U.S. 87, this is or at least once was true ``on a general principle, on the reason and nature of things: a principle which will impose laws even on the deity.''
But now, when almost everything is digitized, when there is nothing to keep anyone who can gain access to the digits from erasing them, or, worse, changing them, we live in a world where the past is unpleasantly mutable, not only, as George Orwell foresaw, at the whim of the organs of the state, but also at the option of anyone with access to the proper codes.1
A to my mind horrible example--perhaps only because I have a couple of degrees from Harvard and like to believe that it would not condone such unfairness and stupidity, or at least not condone such stupidity--is the recent antics of the editors of a publication, or, as it says in its masthead, ``production,'' of the Berkman Center at Harvard Law School, called, in an apparent effort to repel anyone who might not be familiar with the names of Unix utilities, Greplaw.com.2
Now what the Greplaw editors, who apparently are more geeks than lawyers, have done is take the software that is used by the popular, at least among the digerati, website known as Slashdot and set up their own ``production'' which publishes articles about law and technology and then publishes comments about those articles.3
After a set period the period for comments closes and the article and its comments are sent to a permanent and supposedly unmodifiable archive.
All that is prologue to the sad story that I am telling here.
A few months ago the editors of Greplaw asked Seth Finkelstein if he could take part in an interview and Seth, with what I gather was considerable reluctance, agreed and the interview was duly published, inspired a few comments, and was sent off to a supposedly permanent archive. Unfortunately I don't have a link to that article in the form that it was originally placed in the archive.
Then, a few months later,4within the last few weeks, Seth discovered, by accident, that the archived text had been altered in a way that distorts its meaning and Seth believes--quite reasonably--defames him.
When Seth complained to the editors of Greplaw and to the authorities at the Berkman center he was met with the ``Who me?'' and the ``There Ain't Nobody Here but Us Chickens'' defenses. The Greplaw editor in chief--who apparently has had no connection with Harvard Law School since he graduated, other than editing Greplaw--informed Seth that they would not restore the text of the interview to its original condition, but did offer to remove it altogether from the Greplaw archives, a result that would leave the redacted version of the article in the archives of many other webpages and, of course, of Google. There was not even a suggestion that they would publish a response by Seth to the defamatory material that they had added to the interview.
That's enough background.
Here's a letter about this matter that I wrote a couple of days ago to the editors of Greplaw:
To: Named Recipients
Subject: Re: Formal Request To Restore Interview To Agreed-Upon Form
Date: Wed, 25 Aug 2004 20:51:45 -0400
From: "Peter D. Junger" <junger@samsara.law.cwru.edu>
I am one of those to whom Seth Finkelstein sent a copy of his "Formal Request To Restore Interview To Agreed-Upon Form" addressed to the editors of greplaw. I presume that he copied me both because we share an interest in free speech and computing and because in times past I have felt obliged to try to deflect some of the public attacks made against him by Mike Godwin, who is--as I suspect you are only too well aware--rather a bully.
I am not, however, sending this message in support of Seth, or even in support of his request that his interview in greplaw be restored to its unredacted form.
I am writing to express my outrage that any publication of the Law School--of which I am a 1958 graduate--or of one of its centers would attempt to change the historical record and revise a published article, rather than run a retraction or clarification at a latter time.
Now it is true that publications on the World Wide Web can be changed retroactively and that that, in fact, happens all the time. The normal result, however, is not that the original version of the article disappears, but that the various archives on the Web and the rest of the Internet thereafter have two incompatible versions.
But even were the Orwellian nightmare of a changing historical record technically possible, I trust that there are few reputable publishers--at least academic publishers--who would be willing openly to admit that they favor the use of such technology.
As I understand the way that greplaw works, there is a period in which anyone can publish there comments about a published article. No one would have had a right to complain if Godwin had used this mechanism to respond to Seth's interview, but he did not do so. Instead, after the comment period had expired, he somehow persuaded the editors to change the text of the published article when it would no longer be possible for anyone--including Seth or myself--to post a comment responding to the changes.
I know that that is the case because, when I received the message from Seth, I immediately went to the greplaw website with the intent of posting a comment protesting the redaction. I could not, however, do so because, as is explained at the end of the interview: "This discussion has been archived. No new comments can be posted."
I trust that you can understand that inserting a statement about Mike Godwin's objections to what Seth said in the portion of his interview about the Censorware project grossly distorts what Seth actually had to say.
Here is how the revised archive shows the beginning of that portion of the interview:
# What was the Censorware project?
[Mr. Godwin has contacted the editors of Greplaw to expressly deny Seth Finkelstein's implication that Godwin has shared (or would share) any privileged information with the RIAA, or with any other party adverse to Seth Finkelstein's interests. Mr. Godwin further denies being in the possession of privileged information regarding Seth Finkelstein that has not already been publicly disclosed by Seth Finkelstein. As with all such interviews, the views expressed in Mr. Finkelstein's interview here do not reflect the views of the Greplaw editors or anyone at the Berkman Center for Internet & Society at Harvard Law School. See also Godwin's statement below.]
Now this introduction would undoubtedly lead a reader to believe that Seth implied in this part of the interview that Mike Godwin had shared privileged information with the RIAA, which simply is not true. Seth referred to the RIAA only in an analogy--"Imagine if" were his words--as to what it would be like today for someone to be in his position.
Nor did Seth say that Godwin gave privileged information to any party adverse to Seth's interests.
What Seth did claim, and what Godwin apparently does not deny, is that Godwin publicly attacked Seth using confidential information--which is by the way no longer secret--that Godwin had obtained "within the framework of an attorney-client relation which he briefly had with Seth," to use the words that Seth quoted from James Tyre.
I am not privy to the reasons the editors of greplaw had for attempting to revise the text of Seth's interview long after it was published. I cannot help but suspect, however, that that act of censorship was induced by a threat of suit by Mike Godwin.
And that is what I as an alumnus of the law School find so disturbing. I know of no other reputable publication that has attempted retroactively to change the text of a published article, as opposed to publishing a separate retraction or correction. But then perhaps the only conclusion that one can draw is that greplaw is not a reputable publication and that the Berkman Center has little regard either for free speech or for the historical record.
It would be interesting to see what would happen if Seth should now threaten to sue the Berkman Center and Harvard for defamation. - --So interesting that I would be willing to donate a thousand dollars towards the legal expenses of such a suit and spend some time working on the briefs and pleadings.
Peter Junger
Emeritus Professor of Law
Case Western Reserve University