Fair Use, Copyright, and a Mike Godwin story

I'm going to endeavor to make a point concerning the recent "use it or lose it" discussions regarding making copyright and fair use determinations. I'll try to do it in a somewhat non-traditional way. Let me tell a story from my experience. Warning: this is not a pretty story. But then, neither is the prospect of being sued.

In late 1995, when I first decrypted censorware blacklists, I had the misfortune to ask one of the most then-famous net lawyers, Mike Godwin, for advice about legal issues (this was a big mistake, because of the politics of censorware-is-our-saviour, but that's another story).

The relevant point to the current discussion is that Mike Godwin had, at that time, the idea that censorware blacklists were not subject to copyright. His reasoning was, briefly, that the blacklist items were "facts", and the blacklist information itself had no copyright. I'm not breaking any confidences or revealing much of a secret here. He expressed that view repeatedly and, err, forcefully, some years later in a long mailing-list discussion. This was related to the lawsuit in 2000 against the programmers who reverse-engineered CyberPatrol (a censorware/"filtering" program), AND PUBLISHED IT (I had similarly reverse-engineered it earlier, but not published anything except a few results, and those laundered through journalists - another story/mistake, sigh). I didn't argue with him in 1995. He wouldn't have listened. Privately, however, I thought his advice was wrong. One sad implication of his views though, was that since he knew, with supreme confidence, that censorware blacklists were not copyright-able, and knew this with all the arrogance that an egotistical lawyer can muster, my disagreement with him must've been simply a reflection of my cowardly nature, or worse. How could it be otherwise?

But in 2000, the subject was a big public discussion. And, Mike Godwin was sooo confident of the rightness of his views on lack of copyright of censorware blacklists. Bear with me, I'd like to give the flavor of the absolute certainty with which this was proclaimed:

I'd happily go to court on that issue. And I'd win. Facts are facts, and are not copyrightable.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23484.html

But the fact of what is blocked is not copyrightable. It's just a list, and no deeper a list than the list of names in Feist.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23487.html

If I were to post that entire list of sites in a different order from that used by CyberPatrol, for example, I would not be a copyright infringer. It is only the particular expression of that list of URLs that is protected by the Copyright Act -- not any and all instantiations of the same information.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23522.html

I don't believe that my own [hypothetical] publication of what CyberPatrol blocks is infringing, even if I include all the sites they block, so long as I don't duplicate their precise expression of their list.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23552.html

I should add that I understand why censorware's defenders may be arguing for the more expansive view of copyright, in order to protect CyberPatrol's right to sue in copyright.

But I'm certain I'm right to argue that CyberPatrol is wrong to assert a copyright interest in the mere fact of whom they don't like.

You friends of CyberPatrol, have at me!

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23489.html

When James S. Tyre gave him some factual corrections, e.g.

"the list itself includes the blocking categories"

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23490.html

Mike Godwin responded in typical abusive fashion, even accusing James Tyre of unethical behavior (this was highly ironic, the coal-bin calling the bone-china black).

Are you making the pro-CyberPatrol argument that the blocking categories are creative expression, James?

Do your clients know you're doing this?

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23491.html

I should note he was flamed hard for this, by law professor Peter Junger

I am afraid that Mike Godwin is us reverting to his old tendency of making nonsensical arguments. ... [later] And anyway, if the lawyers for our side go into court convinced that there is no merit in the other side's arguments, then we are going to be the ducks in that barrel.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23510.html

And me, for which I make absolutely no apologies:

In terms of treatment of clients, Mike, you are a disgrace to your bar certificate. I seriously considering bringing an action against you for breach of attorney-client privilege, for your various misuses of confidential information. And it was in fact *Jim Tyre* who convinced me not to do it.

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23499.html

Anyway, this "discussion" went on for quite a while, good and bad. And finally, after several distinguished lawyers who specialized in intellectual property law, and prominent authors in that legal field, all told Mike Godwin he was wrong, he conceded.

After speaking with my friend Pam Samuelson at Computers, Freedom, and Privacy here in Toronto, I've come to the conclusion that Bruce Hayden and others were right, and that I was wrong, with regard to whether Feist should be read as protecting compilations of facts based on selection alone (apart from arrangement).

http://legalminds.lp.findlaw.com/list/cyberia-l/msg23855.html

There was pointedly no apology to several people most abused, though. Especially the programmer (me) who would have been very badly off to have relied on his wrong copyright advice earlier, in 1995. In fact, as usual, I lost reputation-points myself (yet another story). The eventual court findings were horribly against fair use and in favor of copyright claims.

Why do I go through all this? Well, the speaker here was not (just) some flamer. It was net.legend Internet lawyer Mike Godwin. And many people who said he was wrong were showered with accusation and vituperation.

I'll put the moral of the story as this:

No matter how many times a theory is repeated, that doesn't make it correct. And the people on the risk end if it's wrong have a right to doubt it. Because it'll be them being sued.

There's a lawyer joke: After being convicted at trial, a criminal defendant turns to his lawyer and asks "Where do we go from here?" The lawyer replies, "We? I go back to my office. You go to jail."

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)