Intel v. Hamidi verdict is in, let the interesting times begin ...
Hamidi's an ex-Intel employee who has been sending messages critical of Intel to tens of thousands of Intel employees, unsolicited, at their Inte work addresses. Intel sought an injunction against him, won in lower court, and just lost by a narrow 4-3 ruling in California Supreme Court
I've always thought this was a "hard cases make bad law" situation. Most civil-libertarians I know, who aren't dedicated anti-spammers, analyze it in term of a Little Guy being shut-up by A Big Corporation. And indeed, on the facts of it, I rather agree. On the other hand, in general, the law simply doesn't seem to have a "Little Guy vs. Big Corporation" exception in it. There's something to that effect in labor law, but Hamidi's cause itself didn't fall under it. I thought he was going to lose his case.
Well, hail California, they actually found for him, if narrowly To me, it's very interesting how, in my view, the majority basically seemed to want to write "We hold that he's a Little Guy being shut-up by A Big Corporation, and we're going to let him slide here because he's just not doing any real damage":
Intel's e-mail system was equipment designed for speedy communication between employees and the outside world; Hamidi communicated with Intel employees over that system in a manner entirely consistent with its design; and Intel objected not because of an offense against the integrity or dignity of its computers, but because the communications themselves affected employee-recipients in a manner Intel found undesirable.
The problem is, that fits every spammer, in terms of "consistent with its design". Spammers use email systems to deliver email, that's the whole point. The majority then lets Hamidi off the hook, as Intel objected for content (and hence, in practice, making a "Little Guy" exception). There's long sections in their opinion where they seem to try to say "Real spammers, don't try to use this, we don't mean to help you, no, no, no". They're commercial, Hamidi's non-commercial, which is a fair point. But spammers aren't noted for their honesty and strict construction in legal matters.
I suspect California is going to have some very interesting spam cases soon. ("My company must tell your employees about this great new way to improve their marital happiness, because an employee happier at home is happier and more productive at work ...")
And it must be wonderful to have legal backing ...
Walt Crawford has some nice commentary regarding various material, especially RIAA lawsuits and DMCA censorware testimony, in his "Cites & Insights" publication for July 2003. Particularly the following section [I'm biased :-)]
N2H2, DMCA, Seth Finkelstein and all
When Finkelstein is asked whether he can provide details of how he decrypted N2H2's database, he points out that the threat of lawsuit--a very real threat based on previous occurrences--discourages him from doing so without immunity. David Burt says he's not in a position to provide such immunity, and neither is the government--thus allowing Burt to continue to say that nobody's done such decryption. He didn't say "And if you try to prove I'm wrong, we'll sue your butt." But he also didn't provide an offer to hold harmless. ...
[David Burt] makes some questionable statements, as in saying that if Finkelstein can decrypt the list, "We have ceded all control over our copyrighted material, over our database, to somebody else..." simply because Finkelstein can see it. Band points out that almost all copyright-protected material is distributed to the public--and is protected from abuse by copyright. Somehow, Burt manages to say that peer-to-peer networks illustrate the "dangers of allowing these copyright protections to be disabled." He continues to try to conflate Dialog with N2H2's censorware list, and the others aren't buying it. At one point, Band suggests that Burt's testimony reminds him of the Iraqi Information Minister...
...[James] Tyre discusses some actual examples showing the need for decryption--and also real-world examples showing the need for ongoing investigation, since censorware companies keep adding and reclassifying sites. ... As Tyre concludes, "Not because they're malicious, but because they do most of this by computer robots, not by human review, and the computer robots are stupid. Computers are not smart for this kind of work. They never have been. Some day they may well be, but they surely are not today." I'm less optimistic about "some day." There is, as always, lots more in the transcripts. You can find the HTML versions at sethf.com/anticensorware/ and the PDF versions are also readily available. What will come out of all this? Since the Supremes upheld CIPA, it's even more important that we be able to understand just what those mandatory programs are doing.
[I'll have an entry posted soon with regard to Metalitz]
I suppose I should note David Burt's triumph, in this part of the CIPA decision:
Congress learned that adults "us[e] library computers to access pornography that is then exposed to staff, passersby, and children," and that "minors acces[s] child and adult pornography in libraries."1
And what's footnote 1? None other than David Burt's masterwork: (emphasis added)
1The Children's Internet Protection Act: Hearing on S. 97 before the Senate Committee on Commerce, Science, and Transportation, 106th Cong., 1st Sess., 49 (1999) (prepared statement of Bruce Taylor, President and Chief Counsel, National Law Center for Children and Families). See also Obscene Material Available Via The Internet: Hearing before the Subcommittee on Telecommunications, Trade, and Consumer Protection of the House Committee on Commerce, 106th Cong., 2d Sess. 1, 27 (2000) (citing D. Burt, Dangerous Access, 2000 Edition: Uncovering Internet Pornography in America's Libraries (2000)) (noting more than 2,000 incidents of patrons, both adults and minors, using library computers to view online pornography, including obscenity and child pornography).
Sigh ... it must've been so nice to have gotten support, even while being a mega-flamer.
I've said this before, but after this week, it deserves saying again:
The best public-relations censorware companies ever did, was to get their products named "filters".
As I mentioned I've spent a great deal of time saying "Censorware is about control". That the issue at stake with censorship of libraries is about the right to read, not disfavored content ("PORNOGRAPHY!"). That in order to control what people are allowed to read, there must be prohibitions on privacy, language-translation, image-searching, etc
I don't know if I'm being heard. It's as if I'm trying try speak over someone yodeling ...
P-O-R-N-N-N-N-N-N-N-N! P-O-R-N-N-N-N-N-N-N-N! P-O-R-N-N-N-N-N-N-N-N!
What bothers me so much about this idea, is that it's the classic "Big Picture" Talker. Proposals, conferences, pilot projects - it's tailor-made for blathering, yet never doing anything, but talk, talk, talking about it. Action is a detail. Over and over, the proposers can say, "This is what I think that someone else should do. Will work! Is too! Sez me!". They get Visionary-points for that, and raining on the parade is not popular.
Remember, the requirements of CIPA are not generic "pornography". Not even "hard-core pornography". But rather, specific legal categories, relating to child pornography, obscenity, and harmful-to-minors.
Quick question: Who is going to take responsibility for evaluating the child pornography portion of the open-source censorware blacklist? I sure don't want that job! Remember, mere possession in this instance is a serious crime.
So I've been trying to cut down on the recycling of discussion, with my challenge. Find me libraries who want to take an absolute minimalist approach, and are willing to fight for that in terms of Federal compliance with CIPA (as opposed to simply foregoing all the hassle with funding).
It's a bit like the corporate adage "Nobody ever got fired for buying IBM" (or Microsoft, etc.). The library has to take on the burden of certifying Federal compliance. The library's lawyer has to put his or her professional reputation behind the idea that this is OK. That's a huge barrier.
In a start at meeting my challenge, Walt Crawford writes in with a reference to one library actually adopting this approach. That's interesting, and it's the first piece of ground-level evidence which I've seen. It would be good to know more about their reasoning regarding meeting Federal compliance standards.
[Disclaimer - Again, if there's demand, leading to funding for this idea, I reserve the right to take it :-)]
The idea of minimal, "open-source", library-specific censorware is being widely discussed (see, e.g. Edward Felten's comments - thanks Donna)
Here's the problem:
1) If any library wanted to play challenge-the-law, all they would need to do is sit back and say "Give us the specific, judicially-decided, URLs to be banned, and we'll ban them -- but not one URL more." And then wait for the compliance lawsuit to be brought. Very simple.
2) If they don't want to be challenging the law, why would they undertake what will certainly be a major PR hassle? That is, anyone can come up with harsh-but-not-illegal sites and say "Library X allows these PORNOGRAPHY sites to be viewed!". So do they get added to the blacklist or not? You mean the library is going to stand up to a constant barrage of bad PR like this? If they were willing to do that, we'd be in case #1.
Two words: Robert
Mapplethorpe.
Blacklisted or not? Think through your answer in either case.
What happens when the "North American Man-Boy Love Association" asks to be whitelisted?
The idea of Open-Source Censorware (more accurately, an Open-Source Censorware Blacklist) is one which is very appealing from 10,000 feet. But it falls apart on any close examination.
OpenCensorware is far more work than may be apparent.
Here's the most well-known people who are trying it:
http://www.squidguard.org/
http://www.squidguard.org/blacklist/
Heard of them? No? Consider there's reasons why.
By the way, the Australians tried this idea too:
http://zem.squidly.org/software/guilt.html
http://www.anu.edu.au/mail-archives/link/link0002/0275.html
"Announcing the GnU Internet Lust Terminator, an open-source censorware proxy that only filters ABA-supplied banned URLs.
The software is being developed by Zem for 2600 Australia and will be eventually submitted to the IIA for inclusion as an approved filter"
The Australian government didn't approve it.
[Update 6/26 - I've also suggested privoxy (http://www.privoxy.org/) ]
Before people write back, here's my challenge:
[Disclaimer - I said to one proponent of this idea that I'd help make it happen, if he could find libraries which wanted it, and funding for it, as part of a challenge above]
Today I've been searching Google news for the keyword censorware. So far I've found one (1) article. From a conservative publication The Weekly Standard:
... -the ACLU and the American Library Association call the filters "censorware," ...
I wish! I wish! I love the world this writer is constructing. It reminds me of the old Jewish joke:
A Jewish man was riding on the subway reading a copy of Arab World News. A friend of his, who happened to be riding in the same subway car, noticed this strange phenomenon. Very upset, he approached the newspaper reader:
"Moshe, have you lost your mind? Why are you reading that garbage newspaper?" Moshe replied: "I used to read the Jewish newspaper, but what did I find? Jews being persecuted, Israel being attacked, Jews disappearing through assimilation and intermarriage, Jews living in poverty.
So I switched to Arab World News. Now what do I find? Jews own all the banks, Jews control the media, Jews are all rich and powerful, Jews rule the world. The news is so much better."
(thanks to Rhino's blog for the text)
I keep hearing "but the censorware can be turned-off for adults". Justice Souter put it best, in his dissent:
First, the statute says only that a library "may" unblock, not that it must. ... In addition, it allows unblocking only for a "bona fide research or other lawful purposes," ... and if the "lawful purposes" criterion means anything that would not subsume and render the "bona fide research" criterion superfluous, it must impose some limit on eligibility for unblocking, ... ("[C]ourts should disfavor interpretations of statutes that render language superfluous"). There is therefore necessarily some restriction, which is surely made more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not. ...
Bluntly, if the censorware could be turned-off on request, what would be the point of the law in the first place?
I'm quoted - accurately - in the following article:
Questions and answers on Internet filtering
Critics say they have found sites on art, human rights, sexual education and sexual orientation similarly blocked by filters. Seth Finkelstein, a leading filtering expert, terms it ''electronic book burning.''
From a library discussion list (Web4Lib):
And the piranhas are already attacking... my techies have gotten two vendor phone calls already (before 11 am CA time) INSISTING that we HAVE to buy filter s/w, which is not the case unless we've received federal funds for technology.... methinks I see a conspiracy.... (yes, yes, only kidding, but often it feels that way). I, too, am interested in exactly what constitutes filtering and how it has to be utilized and so, will wait for more information from???? someone????
Oh course I could rant on about just how it's not "burdensome" to turn off filtering, but let's not go there.
I promise to serve some cheese with my next whine.
Good luck to us all Jean Willis
From "Center for Democracy & Technology:
The Children's Internet Protection Act requires public libraries that receive federal funding to install and use Internet filtering software. CDT, along with other civil liberties, public interest, educational, corporate and conservative organizations, publicly opposed filtering mandates as a violation of the First Amendment. While CDT believes that when used by families filters can serve as a useful tool in guiding children's online experience, CDT maintains that their mandated implementation by government is an unconstitutional restriction of free speech. In June 2003, the Supreme Court upheld CIPA, suggesting that adults had a right to insist that librarians unblock legal sites that were blocked. Going forward, it will be important that public libraries use filters wisely and press to make sure that filters foster First Amendment rights.
And
Jerry Berman called upon the library community to use filters wisely and to insist that they foster free speech values. "Librarians," he said, "should seize this unwelcome opportunity to demand that filters be more First Amendment-friendly by disclosing what they block and how they can be customized to suit the needs of local communities."
My comments: This is ludicrous. Censorware companies aren't going to open their blacklists to anyone. They've said that time and again. They sue over people trying to expose those blacklists, remember?! And even if they did by some miracle allow someone to look, nobody has the time to investigate every day, the changing blacklist. Think of how much effort that would require. The above is pure PR balderdash.
http://www.kansascity.com/mld/kansascity/news/breaking_news/6151827.htm
Later reports say 6-3 decision
For good links to the decision, see http://www.goldsteinhowe.com/blog/archive/2003_06_22_SCOTUSblog.cfm#105637997083608116
Here's my predictions, made purely for the exercise in punditry, as to how the "Children's" Internet Protection Act (library censorware case) will be decided. Keep in mind, censorware is not just for kids anymore.
Main: CIPA will be upheld, but with a mess of splintered concurring and dissenting opinions.
Rehnquist will write an upholding opinion.
O'Connor will join what Rehnquist writes
ScaliaThomas will vote to uphold. I don't know if it'll be part of the Rehnquist opinion or separate.
Kennedy on the upholding side, probably with Rehnquist and O'Connor
Same for Breyer.
Souter will dissent, strongly.
I'm not going to try for the others.
Yes, I'm a pessimist.
Here are some things I believe I will be saying over and over next week:
1) Even though CIPA is called the "Children's Internet Protection Act", the name is Orwellian. The censorship law applies to every one, all ages, adult as well as children.
2) Censorware is not a "pornography filter". That focuses thinking supposedly undesirable material to be "filtered". Censorware is about control. Here, it is about what government will permit citizens to read.
3) Moreover. there is the issue of banning not just "bad" material, but sites which provide escape from the control, "LOOPHOLE" sites. Do you really favor banning the Google cache?
Then again, maybe I won't be saying these things, because nobody will be listening to me ...
The New York Times recently had an article on upcoming Supreme Court decisions. Mandatory library censorware (CIPA) was mentioned.
The portion below is being posted in some places:
Of the 11 cases argued in February, only one is undecided and only Chief Justice Rehnquist has not written a majority opinion. The case, United States v. American Library Association, raises the First Amendment question of whether the government can require public libraries to install antipornography filters restricting Internet access.
If Chief Justice Rehnquist is in fact writing the majority opinion, there is little doubt that the court will uphold the law, the Children's Internet Protection Act.
With the following portion omitted:
On the other hand, he is one of the court's fastest writers, raising the question of why the decision in what is now the term's oldest undecided case is taking so long. One possibility is that there are many separate opinions, both concurring and dissenting. Perhaps he started out writing a majority opinion but lost the majority along the way.
Amusingly, when I posted that second part, someone responded, "Dream on, loser."
I don't know how long I should drag out the Eldred discussion with Derek, but the following part motivated me to write yet another item on the topic:
That's why I don't really think of this discussion as people naively reading too much into the Eldred opinion. I look at it as a starting place for the next person who gets sued.
As I just said, cough, cough, cough ...
It's exactly because of being a starting place for the next person who gets sued, that I think people are naively reading too much into the Eldred opinion!
Quite frankly, nothing is worse for such a person than a pundit-lawyer on a hobby-horse, who needs a reality-check (nothing personal to anyone involved in this discussion, just a comment/example from more "intense" times).
I think I've found a fairly concise way of illustrating where I think there's a small (very small) gain, and a large gap:
Here's the good news, regarding this part of the 2600 Appeals decision:
Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement. ...
[And the fair use discussion in Eldred fits right here. One could say that it establishes there is such a requirement. Eldred at least unarguably adds strongly to the pile of evidence in favor of that point.]
Here's the bad news. Contrast the key fair use paragraph in Eldred here:
Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U. S. C. ß107, the defense provides: "[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The fair use defense affords considerable "latitude for scholarship and comment," Harper & Row, 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group's musical parody of Roy Orbison's "Oh, Pretty Woman" may be fair use).
With this pronouncement in the 2600 Appeals decision:
A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.
Where is there anything, anything, in what was said in Eldred, which screams that a Supreme Court opinion on the DMCA would reject that baleful phrase "Fair use has never been held to be a guarantee of access to copyrighted material ..."?
Try it as a positive assertion: "The Eldred decision establishes the contention that fair use is a guarantee of access to copyrighted material ...". See how stretched it is? How much it sounds like wishful thinking?
Replying to Derek, about Eldred decision meaning:
I reject the argument that the "traditional contours" argument is just a "vague phrase" without any meaning. It's not just that one phrase; it's a thread that runs through her entire argument. If none of that argument is important, then she would not have said that the lower court had erred in any way - her opinion would be equal to a categorical first amendment immunity for all copyright legislation. Given that she specifically said no such immunity exists, I don't see how one can ignore the traditional contours portion of her argument.
Consider the whole paragraph:
The First Amendment securely protects the freedom to make or decline to make one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.
Let me say, as a disclaimer, that I'm not a lawyer, not even a lawyer-in-training. But my reading of court decisions has made me very cynical. So when I encounter a passage such as the above, I don't see a ringing clarion-call for the ramparts of fair use. Rather, I hear, bluntly, a blow-off. A "But ...". Someone clucking "Now, that Circuit Court went a little too far, but don't you get any crazy ideas about First Amendment arguments overturning these laws."
The problem with Balkin's "pony-hunt" is where he's assuming exactly the conclusion he wants to reach (my emphasis:)
Does the DMCA "alter[] the traditional contours of copyright protection"? Yes, it does, in two respects. ...
Congress clearly did mess with those horizontal aspects in the DMCA, and so, under the logic of Eldred, it infringed on the "built-in free speech safeguards" of copyright law.
However, the "legal hack" argument of the DMCA is that it does not infringe on "built-in free speech safeguards" of copyright law, because it doesn't affect fair use in terms of a technical exception (as opposed to a substantive limit).
I am absolutely certain that in a DMCA Supreme Court opinion, they will analyze the issue of fair use extensively, instead of dismissing it out of hand. To this extent, I'll agree Eldred established fair use as a Constitutional requirement, rather than something which exists at the whim of Congress.
But I fear in that analysis, we are likely to see pages and pages explaining how in fact, in the court's view, the DMCA does not alter the "traditional contours of copyright protection" And the blueprint for that is in all the lower court decisions enthusiastically saying how the DMCA is not a fair use issue. Channeling Ginsburg, we'll get:
In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection.
[Now insert: The DMCA doesn't affect idea/expression]
Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.
[NOW insert: There's no right to access, fair use is merely a technical exception not a substantive limit - this is the whole argument]
I can see this very easily. Very easily indeed.
I believe people are reading into the Court's fair use discussion, something they themselves deeply believe is true, and so desperately want the Court to endorse as true. I share these feelings. But that can be a fatal error. I sadly see little evidence that the Court is saying anything DMCA-unfriendly.
C'mon. Do they sound business/copyright-power unfriendly to you?
[I wrote this for a mailing list, about how the DMCA defines circumvention devices]
Much as it's fun to proclaim "Magic Markers Are A Circumvention Device" (and Therefore The DMCA Is Absurd), let's not forget the technical definition in the law does take that issue into account:
* (A) is primarily designed or produced for the purpose of
circumventing protection afforded by a technological measure that
effectively protects a right of a copyright owner under this
title in a work or a portion thereof;
* (B) has only limited commercially significant purpose or use
other than to circumvent protection afforded by a technological
measure that effectively protects a right of a copyright owner
under this title in a work or a portion thereof; or
* (C) is marketed by that person or another acting in concert
with that person with that person's knowledge for use in
circumventing protection afforded by a technological measure that
effectively protects a right of a copyright owner under this
title in a work or a portion thereof.
I must admit I've wondered about that part (C) - "marketed". It does seem to me to arguably cover e.g. an eBay auction that says "Magic Markers - great for circumventing CD copying restrictions". hat's odd to my techie-mindset. But it actually seems to fit the legal framework around earlier infringement-capable devices (i.e., you can in general sell a device that has an infringing use, but marketing it for the explicit purpose of infringement is a no-no).
So, I started digging through Pamela Samuelson's recent paper on The Constitutional Law of Intellectual Property After Eldred v. Ashcroft (per blog recommendation of Derek Slater). I spotted a technical error, my pet peeve of the DeCSS history.:
The controversy concerned a Norwegian teenager who reverse engineered the Content Scramble System (CSS), an encryption program used by major motion picture studios to protect DVD movies. This teenager figured out how CSS worked, developed the DeCSS program to bypass CSS, and then posted the program on the Internet, to the dismay of major motion picture studios.
No, an anonymous German reverse-engineered CSS. Said German remaining anonymous for very obvious reasons ... I feel for that anonymous programmer ...
Oh, I was vastly "amused" by this summary remark:
Samuelson suggests that even if we couldn't mount an attack on the entire DMCA, we could see more successful challenges by particular defendants. They might have more success as fair users rather than traffickers (think Felten).
Derek Slater has an extensive post on After Eldred, and comments in it:
Oh, and as for Seth's argument about the "DMCA does not limit fair use" clause - I don't buy it. Corley, for good reason, did not read that clause to mean that the DMCA provided a fair use exception. Its designers did not intend such an exception.
Indeed. In fact, the Memorandum Order says outright:
If Congress had meant the fair use defense to apply to such actions, it would have said so.
But I argue this is key for exactly the reasons being discussed, what Frank phrases as "how to treat technology in relation to expression". I semi-agree that the "The court clearly had trouble figuring out how to treat technology in relation to expressions". But the trouble seemed to me more in fitting the legal theory to the outcome they saw as absolutely necessary. And hence we get back to practical fiction that the DMCA does not limit fair use.
In a nutshell:
I suppose you can make those technologically inconvenient fair uses, in the abstract. But it's greatly altering the way you experience the content.
And thus we return to the DMCA argument is that there's no particular right to experience content (i.e., DMCA not affecting fair use):
Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies,36 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, ...
36 In their supplemental papers, the Appellants contend, rather hyperbolically, that a prohibition on using copying machines to assist in making fair use of texts could not validly be upheld by the availability of "monks to scribe the relevant passages."
Note that phrase even an arguable limitation. What we are doing here is reiterating at great length, with many variation on the theme, the fundamental conflict in views of fair use: substantive limit, or technical exception? In terms of a procedural reply to a copyright infringement charge, sure, there's no limitation. But regarding real-world impact on ability, such a statement would be ludicrous.
People are going ga-ga over one vague phrase in Eldred, "the traditional contours of copyright protection". But there's pages and pages of dismissal of fair use, substantively, in Corley.
This reality obliges courts considering First Amendment claims in the context of the pending case to choose between two unattractive alternatives: either tolerate some impairment of communication in order to permit Congress to prohibit decryption that may lawfully be prevented, or tolerate some decryption in order to avoid some impairment of communication. Although the parties dispute the extent of impairment of communication if the injunction is upheld and the extent of decryption if it is vacated, and differ on the availability and effectiveness of techniques for minimizing both consequences, the fundamental choice between impairing some communication and tolerating decryption cannot be entirely avoided.
In facing this choice, we are mindful that it is not for us to resolve the issues of public policy implicated by the choice we have identified. Those issues are for Congress. Our task is to determine whether the legislative solution adopted by Congress, as applied to the Appellants by the District Court's injunction, is consistent with the limitations of the First Amendment, and we are satisfied that it is.
I'd say this is sadly the inverse of "splitting the technology from the expression, divorcing the use of code from actual human experience." What the court seems to say, up and down, throughout the entire decision, is basically, in my view, that if they accept a First Amendment or fair use defense of code, in practice, it's going to allow too much to get through. So it won't be allowed.
We can't split the difference with source code versus object code. Again, in practice, the court is concerned with the effects, so source versus object is immaterial. My reading of it is that they "got" the implications, they understood all about technological mediation of experiential aspect. And they came out on the issue that, bluntly, users lose.
The 2600 Appeals Court decision is critical reading on the topic of the DMCA versus fair use Here's the problem with Balkin's "pony-hunt" in a nutshell, from that decision:
We need not explore the extent to which fair use might have constitutional protection, grounded on either the First Amendment or the Copyright Clause, because whatever validity a constitutional claim might have as to an application of the DMCA that impairs fair use of copyrighted materials, such matters are far beyond the scope of this lawsuit for several reasons. In the first place, the Appellants do not claim to be making fair use of any copyrighted materials, and nothing in the injunction prohibits them from making such fair use. They are barred from trafficking in a decryption code that enables unauthorized access to copyrighted materials.
There's the "legal hack" at work. You're not accused of copyright infringement, you're accused of DMCA violation. The fact that access for the purpose of making a copy is deemed irrelevant. That's the trick. And if the Supreme Court can swallow "limited times" which are retroactive and finite-yet-unbounded, I'm unfortunately having a hard time seeing where they won't swallow that the DMCA hasn't "altered the traditional contours of copyright protection,", under the theory that it's not really copyright. That's why I call it a "legal hack".
DMCA/fair-use blog party!
Donna and Derek and Kerr and Balkin and Solum and Frank ...
Let me jam too.
I think understand what Balkin is saying, and also what Kerr is saying.
Here's the deep question, which is being batted around:
Is fair-use a substantive limit, or a technical exception?
The side Kerr is arguing, what some call "affirmative defense", I call the "technical exception" view. That is, it conceives of fair use as having no overarching meaning, no deep significance. It's just a procedural reply in some particular sections of copyright law. The implication here, being that if one creates a new section of the copyright law - such as the DMCA - there's no carry-over, no principle to apply. The sections of the laws are partitioned, and never the twain shall meet.
The side Balkin is arguing, I call the "substantive limit" view. Fair use is an aspect of the First Amendment. It's intrinsic to any copyright-associated law by virtue of drawing power from the First Amendment's scope and reach, as a Constitutional provision. It's a bit like an all-pervasive Holy Spirit that way (the DMCA makes baby Jesus cry).
Now, Balkin is reading the Eldred decision as having a kind of genuflection to the pervasive spirit of fair use. How he does this, from perhaps the largest copyright-grab in history, is awesome to behold. The idea is that the court says the copyright-grab is OK in part since it didn't change fair use:
But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.
So, goes the thought, this is a shining reaffirmation of the importance of fair use as substantive limit. And that strengthens the argument of those who argue that the DMCA is a restriction of this substantive limit. Follow the reasoning?
Frankly, this strikes me not as making lemonade out of lemons, but rather, wading through a pile of manure and trying to find a pony.
The cyanide in this lemonade is that it in fact doesn't help much against the "legal hack" that the DMCA doesn't affect fair use:
* (c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
So the DMCA defenders are going to argue that in fact "[the DMCA] has not altered the traditional contours of copyright protection". Why? It says so right there, see? "Nothing in this section shall affect ...". But, respond the DMCA opponents, fair use is a substantive limit! No, say the DMCA defenders, fair use is a technical exception ...
Roundabout, here we come, right back where we started from ...
In a reply to my entry concerning Jesse Jordan being sued by RIAA, Edward Felten commented and discussed the elephant in the room:
But let's not forget the plaintiffs' other claim, that Jordan was a direct infringer, based on his alleged redistribution of hundreds of copyrighted works from his own computer. If proven, this claim would have cost Jordan much more than $12,000 in damages. And it seems reasonable to assume that the direct infringement claim was not baseless, especially given that Jordan has not denied it.
Note I've now had some correspondence with him about this, and he does in fact deny that direct infringement allegation.
That direct infringement claim was much on my mind, as I dug through the RIAA complaint documents. It's a very touchy matter to ask someone if they are in fact guilty, especially in a high-profile case. But not following the crowd wins me few friends :-(. I felt very uncomfortable suggesting that someone targeted by the RIAA might, in fact, be guilty. And that feeling was much intensified by my sympathies for the underdogs. There's definitely an opportunity here for some journalist to write a "contrarian" article ("Debunking RIAA myths"?), but it's not for me.
I was bothered by the thought: When is it reasonable to assume a claim is not baseless? The mere fact that it was made, didn't seem sufficient. I know in my life, I've had people lie through their teeth about me, on the abstract rational basis that whatever mud sticks, whatever doubts are raised, even the smallest amount, is to the attacker's benefit. It's not as if a judge is going to laugh the RIAA out of court for making a claim of direct infringement in a copyright case! It would seem an obvious allegation to make here, even if completely false. On the other hand, direct infringement is not exactly an absurd claim either. As pointed out, many people (especially college students), do formally violate copyright law on a regular basis.
So ultimately, I couldn't find a compelling analytical argument either for or against the direct infringement claim. Perhaps someone else would like to ask the other "RIAA 4" defendants if they're actually guilty :-)
Jesse Jordan is one of the "RIAA 4", four students who have been sued by the RIAA, and have settled the lawsuits
For some reason I frankly don't understand, Jesse Jordan's settlement is in the news once more, which is leading his particular settlement being reported all over again. Not that the re-reporting is a bad thing itself. The free-speech side needs all the help it can get.
Anyway, deep down, in a huge discussion on his site http://www.chewplastic.com/ , are his comments on why he settled, paying his life's saving of $12,000, versus the cost of fighting a lawsuit. I find them cautionary:
*Re: Review, cont'd.* (Score: 1)
by chew on Tuesday, June 10 @ 16:08:36 EDTActually, almost all of my legal advice indicated to me that I would be able to win this lawsuit. If I won this lawsuit, I would be in for much more than just $12,000. Defending a lawsuit of this size would cost $250,000 at a minimum, so I'm told.
Even if I win... I get nothing back from them. If I lost? I would have to declare bankruptcy after giving up all of my money anyways, and I would have a judgement against me. Going to court in this sort of lawsuit (where the defendent is not a company and did not profit from its operations) is a lose-lose situation.
For the RIAA to take all my money in a settlement is very nasty of them. Even so, it was my best choice - as they did not give me any other.
Aimee Deep is the "face" of the file-sharing program Aimster/Madster. I was intrigued by the discussion of the marketing tactic, as covered in FurdLog-1 and FurdLog-2, Matt Rolls-1, and Matt Rolls-2. The last being mentioned again recently in Matt's case commentary. That prompted me to write-up a little material I'd found. There's enough commentary on the case itself, I feel no great need to add to the pile.
The best source of information about "Aimster" the business, seems to be Evan Hoffman's page on "Why Aimster sucks" and other ponderables (http://www.evanhoffman.com/aimster/):
In case you don't know anything about me, I used to work at Aimster as one of two guys who developed Aimster's Mac client ... I no longer work at Aimster and they've really screwed me over. Rather than rehash the whole story in this space, I'll try to link to all the info I can find from here.
It's dangerous to get dragged into a "buzz" campaign, of Is-Aimee-Deep-real? That's just asking to be "used" with a dozen comments of is-she-or-isn't-she (and who knows for sure ...). Much more interesting (at least to me) is, say, a question of "How much sleazy marketing is being done by Aimster, especially maybe trying to get sympathy from horny geeks, while they rip off their programmers?" :-)
Now, it seems to be clear that John Deep, founder of Aimster/Madster, has a daughter by the name of Madeline who is now 18. There's a "Madeline Deep" listed as an honors graduate of Cohoes High School, same town where the company is located.
There's old business stories discussing the marketing, e.g. http://albany.bizjournals.com/albany/stories/2002/01/21/daily58.html
Deep said his daughter Aimee, whose real name is Madeline, will start going by her given name.
"Aimee's being called Madeline again," he said. "She's the Madster."
Deep said he'd nicknamed his 16-year-old daughter Aimee when she was a child. She has been the public face of the company and featured on the Aimster Web site in a bikini.
George Carpinello, Deep's attorney, said she can be called Aimee if she likes and Deep can sell other goods and services under that name.
So "Aimee" is not (or at least originally was not) her middle name.
There's an obscure comment on Matt's page which has some information that might warrant a greater audience. It's anonymous, but seems worthwhile:
As a former Aimster employee, I have a few things to mention:
1) Aimee Deep = Madeline Deep, John Deep's daugher (she exists, and is just a normal high school senior).
2) Madeline does not write the Musicpundit text; I'm reasonably certain that she doesn't even know the site exists.
3) Madeline is finishing her senior year of high school. If she shows up at a hearing Wed., I will be extremely surprised. My guess is that 'something' will come up. If she DOES show up, she won't be talking Aimster with anyone (because she doesn't know anything about it).
4) Your suspicions are correct. Aimee is an invented name that John (or someone) came up with after the AIM trouble. Early versions of Aimster were actually spelled AIMster. A few places in the code still use this spelling.
Aimee Deep is really just an invention of John's that happens to use his daughter as a public face. Among other things, think about that and you'll begin to get a clear picture of the kind of 'entrepreneur' he really is.
That last part ("the kind of 'entrepreneur' he really is"), is why I think there's some value in the subject of "Aimee Deep".
Now, is "Aimee Deep" worst than "Betty Crocker" or "Sarah Lee"? Abstractly, no, I can't see why. I can't even get too worked up over the teen-daughter aspect per se. Being a web-site "model" isn't bad, and there's no indication she feels exploited.
What bothers me is the sense that the "booth babe" replicant is being used in a manner beyond eye-candy, and into very slimy territory. Not because there's a picture of a girl in a bikini. Rather that we're told the product is to help that poor little girl (awwe ...), and later a sense that the T&A is being used as a distraction. It's manipulative enough to have an unsavory aspect, in my view.
Dave Winer's done some great work with an agreement to have the ability for weblogs to link to the New York Times Archives. Take a look at:
New York Times Archive and Weblogs
http://davenet.userland.com/2003/06/06/newYorkTimesArchiveAndWeblogs
You have to use the URLs generated by http://backend.userland.com/directory/167/feeds/newYorkTimes , otherwise the link won't work.
Some notes of my own on the system which makes up the URLs:
The "ex" field seems to be some sort of timestamp-based database key, in units of seconds. I see variations which have intervals of exactly 86400, which is the number of seconds in 24 hours.
I'd guess the "ei" field is a partner id number. It seems to be constant.
The "en" field is almost certainly a checksum. Presumably it takes into account the URL and other fields.
The hard part of synthesizing a working URL will be the algorithm for the "en" field.
There's a fascinating specimen of censorware advocacy from "Focus on the Family":
Internet Porn Tied to the Mob
http://www.family.org/cforum/fnif/news/a0026347.html
I found it absurdly funny in terms of wild claims, almost burst out laughing at:
"The porn industry has lots of money to throw at bypassing filtering software. It hires the best technical experts to go to work on circumventing the newest filters."
BWA-HA-HA! I'm either insulted, or not "connected". Nobody, but nobody, has ever offered me a cent to circumvent censorware. I find this bit of propaganda the most hilarious part of Religious-Right censorware advocacy.
Now, to be absolutely accurate, Bennett Haselton did recently have a few bucks thrown at him. But it was the US Government (Voice Of America) which did the throwing.
In fact, "the porn industry" is one of the biggest promoters of censorware. That's for the simple reason that it just wants to be left in peace to sell its wares, and certain deals with censors can make business sense - even good business sense, because then the censors take out the amateur, non-profit, competition.
I'm so tempted to write and ask where I can find someone to throw "lots of money" - not just money, but "lots of money" - at me, to go to work circumventing censorware.
[I wrote this in reply to the message Neil Schwartzman on political correctness: blacklists vs.blocklists on Dave Farber's list, a little while ago, but it didn't make the cut]
> Neil Schwartzman [on "blacklist" vs. "blocklist"]
> I have a strong notion that this started at a company that publishes
> blacklists during a time when they were being sued into complacency ...
> and in an attempt to softsell what they were doing to a judge, they coined
> this horrid new term. However, this perversion of the English language is
> just sad, under any circumstances.
If this is referring to Media3 v. MAPS, just on factual terms, I don't see it. They've had their main product named the "Realtime Blackhole List" http://mail-abuse.org/rbl/ for a long time. And the judge called it by that term, which seems fair.
http://pub.bna.com/eclr/00cv12524.htm
"Nonetheless, in the case at hand, MAPS has done more than merely setting up a Website with allegedly tortious content. It has acted purposefully and successfully to sell and distribute its product, the blackhole list, in Massachusetts. It has directed its staff to encourage Massachusetts companies, over the telephone and through email, to discontinue spam-neutral and spam-friendly websites. Accordingly, I conclude that the exercise of this court's jurisdiction over MAPS is reasonable, and is authorized by the Massachusetts long-arm statute and the United States Constitution."
I think, for spam, aversion to the term "blacklist" doesn't have anything to do with McCarthyism in specific. But rather, my sense is it's a product of some people wanting to "have it both ways". That is, the list is intended as a tool of "disapproval/suspicion/penalized". But there's also at times a contradictory impulse to disclaim the moral implications which flow from that intent. Which leads to some very strange writing about these lists on occasion, as if they just fell from the sky and were published as curiosities.
Besides, if anyone was attempting to softsell what they were doing, as a PR tactic, they'd call it a "filter list", as the censorware companies call their blacklists :-).
The Aimster argument has been well-covered, extensively. What I have to add here is an interesting observation I dug up from the previous decision. This was sparked by a remark in A Copyfighter's Musings post on Thoughts on Aimster:
It seems much of Judge Aspen's reasoning evolves from a distrust for Johnny Deep, considering the encryption part of a mischievous willful ignorance.
Yes indeed. Sayeth the judge:
If Deep's declaration were the only means by which we could evaluate the Aimster system, we might be convinced that it is as innocent as Defendants claim. Unfortunately for Defendants, however, Plaintiffs have submitted numerous declarations to demonstrate that Deep's description of the Aimster service is less than complete.
And you can just see the venom dripping in the Opinion, especially in the portion below. The judge might just as well have written "They're all a bunch of pirates", it would be shorter. I'm adding this to my collection of items about "judicial flaming". It's especially notable for being an instance where trivial message board postings DO end up in court.
3. Chat Rooms and Bulletin Boards Aimster's service includes message (or bulletin) boards on which Aimster users would regularly post messages to each other. Schafer Decl. 3, Ex. 1 (containing screen shots of bulletin board messages). The discussions on these bulletin boards generally fell into a range of particular topics, including: (1) Aimster users seeking to download copyrighted recordings ("I'm trying to find downloads from the Purafunalia album. Specifically the song Blast" (posted by SeanKoury, July 4, 2001)); (2) Aimster users offering recordings for download ("I have a lot of hip hop shared at all times when I'm on, usually over 500 MP3s... [F]eel free to get whatever you want" (posted by biggvince, July 17, 2001)); (3) Aimster as an alternative to Napster ("I'm a long time Napster user, with about 900 MP3s...like everyone else, the RIAA has forced me to try other mp3 websites, so here I am" (posted by honey, March 17, 2001), "Use Aimster like Napster" (posted by Marcella42, May 27, 2001)); (4) comments on the illegality of sharing copyrighted music files ("What you have with Aimster is a way to share, copy, listen to, and basically in a nutshell break the law using files from other people's computers.... I suggest you accept aimster for what it is, an unrestricted music file sharing database" (posted by zhardoum, May 18, 2001)); and (5) bashing of the music industry and the RIAA ("LET'S ALL FUCK OVER THE MUSIC INDUSTRY. . . LETS CHEAT THE VERY ARTISTS WE LISTEN TO" (posted by poiuytrewqm May 20, 2001), "I AM NOT GOING TO BUY CDS ANYMORE!" (posted by OKOK, October 9, 2001)). See, generally, Schafer Decl. Ex. 1 (attaching screen shots).
I just examined some statistics as to how many readers I've had for the censorware DMCA hearing transcripts:
http://sethf.com/anticensorware/hearing_dc.php
http://sethf.com/anticensorware/hearing_ca.php
It turns out there's only a few dozens readers each. Sigh. Why'd I bother?
Psst ... SEX in DC:
MR. FINKELSTEIN: ... I would also like to say that, for all this talk of the pornography sites, since they were blacklists, they are really bad collections of pornography sites. (Laughter.)
I want to go into this because I get this -- no, let me go into this. People are always asking me this question: "Oh, boy, have you gotten any good porn sites?" And I tell them, "It's really bad, if you want to get some good sites, don't look in this censored blacklist."
In fact, I can demonstrate that -- (laughter) -- because when the CyberPatrol blacklist went out, nobody ever said that it was such a great collection. The reason why - this is important -- I know this is funny, but the reason why that they're such bad lists is because there's so much junk in them.
If you wanted a list of sex sites, would you want to go through somebody else's tastes, sites which didn't work, sites which had changed ownership, or so forth? No, you would want a good collection from somebody who had actually made a collection which would appeal to you, and there are people who sell them. There are people who make them for free. They have absolutely no impact on the research that I am doing.
A little late, since I was busy, but just to have this in the blog-ether:
Edward Felten has a
posting
about the paper
Trusted Computing, Peer-To-Peer Distribution, and the Economics of
Pirated Entertainment, and remarks:
A new paper by Stuart Schechter, Rachel Greenstadt, and Mike Smith, of Harvard, points out what should have been obvious all along: that "trusted computing" systems like Microsoft's now-renamed Palladium, if they work, can be used to make peer-to-peer file sharing systems essentially impervious to technical countermeasures.
I'm having a bad flashback to the days of the censorware wars. Then, some pundits would opine that if we had a totally "rated" net (i.e. all content had a label on it), then - ha ha, unintended consequences - people could use the censorship system to find cool things. Or, elsewhere, taking the no-privacy ideas most often associated with David Brin, then - ha ha, unintended consequences - people could use the surveillance system against corrupt government officials. Here, if we have total computing control - ha ha, unintended consequences - people can construct a secure INTRAnet.
The problem with this approach in this case is mentioned down around the seventh page in the paper:
If the attacker can write programs that impersonate genuine clients, there is no limit to the number of malicious peers that can be introduced into the system.
Bingo. In any widely-distributed file-sharing system, RIAA/MPAA/Axis-Of-Evil will have access to clients too. Ultimately, all we've done is gone around that issue all over again. Nothing new here folks, there's going to be no techno-judo.
Today's Copyfight blogstorm is generated by Lessig's post regarding the Reclaim the Public Domain online petition
Forgive me, but the following doggerel popped into my mind over it:
I signed it, so should you.
It'a a cheap and easy me-too
But really, what will it do?
Is a net-petition anything new?
They're known, listeners are few.
I feel like a killjoy, having this view.
N2H2's (censorware company) Public Relations, David Burt, is currently posting around many places that the Edelman v. N2H2 case, a declaratory action to reverse-engineer censorware, is now closed:
Edelman v. N2H2, a case filed by the ACLU that sought to remove N2H2's legal protections preventing the publication of N2H2's copyright-protected database code, was dismissed in April.
The appeal deadline passed on Monday, 5/19. N2H2 was not served with any notice of appeal, and the court docket shows no notice has been filed.
So Edelman v. N2H2 is now officially closed.
I find his phrasing "remove N2H2's legal protections" to be interesting. Anyway, I've been responding:
As the saying goes: "Remember, no matter how hard you work, no matter how right you are - sometimes the dragon wins."
http://www.snapdragongifts.com/musgrave/dt1537.jpg
http://www.gryphonsmoon.com/Catalog/CrossStitch/pix/Dragon-Wins.jpg
http://www.simplyweb.net/jhirschy/dragon/sometime.gif
Given the various places he's posted it, and the fact that I have circumvented N2H2's secrecy about its blacklist (note MY phrasing), I wonder if he's gloating. Or maybe it's a warning.
Sigh. I used to tell David Burt, years ago, that he owed Mike Godwin a HUGE "Thank You". But I'd never tell him exactly why. Maybe he's figured it out
I don't mind saying that I didn't consider the case outcome to be good news for me.
