Unintended Consequences

Kochan: Bloggers as Pamphleteers

Donald Kochan's new article in the Nexus Law Journal, "presents an historical perspective on information flow and the marketplace for ideas, and argues that the blogosphere is merely a technological transformation and stimulus of traditional pamphleteering - an individual's opportunity to introduce his ideas to the community." SSRN-The Blogosphere and the New Pamphleteers by Donald J. Kochan

Reading: Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers

On June 13, 1971, the New York Times began publishing the top secret history of the Vietnam war commissioned by Robert McNamara that came to be known as the Pentagon Papers. The documents had been secretly copied and provided to the Times by Daniel Ellsberg, a former intelligence analyst with the State Department and RAND Corporation who obtained them under authority of his "Top Secret" clearance. Efforts by the administration of President Richard Nixon to halt the publication and to discredit Ellsberg were part of a pattern of activity that ended in a constitutional crisis and Nixon's resignation.

"Secrets: A Memoir of Vietnam and the Pentagon Papers" is Ellsberg's personal story of his years studying the war in Vietnam, including his time travelling "in-country" with civilian advisors and embedded with active combat units, and why he believed publication of the history was essential. The narrative is often overweighted with personal details and colored by his political opinions. It is still an insight into the mind of an insider who starts as a "team player" and becomes an active dissident exposing government secrets.

Read more ...

Ellsberg opens his book with an anecdotal memoir of his early years, which included service as a Marine infantry officer, and post graduate studies of game theory at Harvard. His involvement with Vietnam began in 1964, when he joined a team analyzing information about the United States support of the government of South Vietnam. He tells of his review of highly confidential assessments for the President of the United States (POTUS) from senior advisors concluding that the Vietnam war could not be won by the United States, that escalation would lead to massive U.S. casualties and that it would be unable to withdraw without national humiliation. The assessments were surrounded with supersecrecy that Ellsberg attributes to the desire to preserve a fiction that POTUS had few real alternatives to escalation.

Ellsberg provides anecdotes of his travels in the countryside around Saigon with John Vann, the civilian affairs advisor to the commander of III Corps, and his anecdotes of a "pacification" effort in the VC-controlled district around the village of Rach Kien. At the time, Rach Kien was described as an area in which U.S. forces had never before tried to operate. Ellsberg patrolled with infantrymen up to their necks in the fetid rice paddies, and described the guerrilla "hit and run" tactics by which a handful of VC could impede U.S. progress. The U.S. eventually abandoned efforts to "pacify" Rach Kien. Years later, Ellsberg saw a report about a new attempt to "pacify" Rach Kien. At the time, it was described as an area in which U.S. forces had never tried to operate.

The story of Rach Kien illustrates a recurring theme of Ellsberg's story: his theory that the mistakes in Vietnam resulted from the inability or unwillingness of those making the decisions to learn from history or critical analysis. He points to the political fate of Robert McNamara, whose advocacy of a negotiated exit strategy within the White House "marked the beginning of the end of his influence with the president and of his tenure." Secrets, p. 182.

Ellsberg describes the major "lesson of Vietnam" as: "the impact on policy failures of internal practices of lying to superiors, tacitly encouraged by those superiors, but resulting in a cognitive failure at the presidential level to recognize realities. This was part of a broader cognitive failure of the bureaucracy I had come to suspect. There were situations -- Vietnam was an example -- in which the U.S. government, starting ignorant, did not, would not learn. There was in Vietnam a whole set of what amounted to institutional 'antilearning' mechanisms working to preserve and guarantee unadaptive and unsuccessful behavior. There was the fast turnover in personnel and the lack of institutional memory at any level. * * * There was a general failure to study history or to analyze or even to record operational experience, especially mistakes. Above all, effective pressures for optimistically false reporting at every level, for describing 'progress' rather than problems or failure, concealed the very need for change in approach or for learning." Ibid at 185-186.

In the history of the earliest years of the Vietnam conflict, Ellsberg saw "realistic internal pessimism, deliberately concealed from the public." In the administrations of both Kennedy and Johnson, Ellsberg concluded, "it was the president who was deceiving the public, not his subordinates who were deceiving him." Id. at 193.

In 1968, after the surprise Tet Offensive, Ellsberg first leaked confidential documents, the top secret "Wheeler Report," which found its way to Senator Fulbright. The Wheeler Report, according to Ellsberg, indicated secret plans to escalate and dramatically expand troop forces in Vietnam. Following the leak, Sen. Fulbright publicly warned the White House against further escalation of the war without express approval from the Congress.

From this incident, Ellsberg concluded that "the president's ability to escalate, his entire strategy throughout the war, had depended on secrecy and lying and thus on his ability to deter unauthorized disclosures -- truth telling -- by officials." Id. at 204. Ellsberg also decided that disclosures that diminished that ability could be "patriotic and constructive." Id. at 206.

In 1968, Richard Nixon had just been elected president on a promise to end the war "with honor," but Ellsberg's insider contacts led him to conclude that Nixon intended to continue support of the war indefinitely. Ellsberg had reached the deep seated personal belief that the continuation and escalation of the Vietnam war was not only a political mistake and strategically destructive but also profoundly immoral, even criminal. He and others at the State Department were concerned that the secret McNamara study (the Pentagon Papers), which was ended in 1969, might become an embarrassment and a target for quiet destruction. To preserve the history, Ellsberg took a complete copy to his new job at RAND.

As the war continued, he leaked more of the Papers to senators, hoping that public knowledge of the history would diminish or eliminate the ability of the White House to continue and expand the war. They were reluctant to publish them, and Senator Fulbright asked Ellsberg, "isn't it after all only history?"

Ellsberg next went to the New York Times, which began publishing the Papers on June 13, 1971. The Oval Office Tapes for June 14, 1971, writes Ellsberg, revealed H.R. Haldeman's concern with publishing the history: they suggested that (in Haldeman's words): "you can't trust the government, you can't believe what they say, and you can't rely on their judgment; and the -- the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it's wrong, and the president can be wrong." Id. at 413. An attempt to enjoin publication ended on June 30 with the Supreme Court decision in New York Times v. United States, 403 U.S. 713 (1971).

Ellsberg was charged with violation of the Espionage act (18 U.S.C. §793) and for theft and conspiracy. President Nixon wanted to also destroy Ellsberg's credibility in the press, which led to the June 1971 burglarization of his psychiatrist's office by "White House Plumbers" Howard Hunt and J. Gordon Liddy. That the Plumbers were working for the White House was revealed in 1973, as part of the Watergate investigation triggered by the Plumbers' botched 1972 break-in at the Democratic National Committee offices at the Watergate. As more information emerged, the judge in Ellsberg's case ruled that the overall pattern of the government's conduct offended a sense of justice and precluded a fair trial for Ellsberg. He dismissed all criminal charges against Ellsberg, with prejudice, on May 11, 1973.

As the trial ended, the Oval Office Tapes later revealed Richard Nixon's personal reaction to the fact that the "sonofabitching thief is made a national hero and is going to get off on a mistrial. And the New York Times gets a Pulitzer Prize for stealing documents. * * * They are trying to get at us with thieves. What in the name of God have we come to?" Id. at 457.

On August 8, 1974, Richard M. Nixon resigned the office of President of the United States in the wake of revelations of his personal involvement in the Watergate cover-up.

See also, from the National Security Archive at George Washington University: The Pentagon Papers: Secrets, Lies and Audiotapes (The Nixon Tapes and the Supreme Court Tape).

And, at Mount Holyoke College, Pentagon Papers, Gravel Edition, Summary and Chapter I.

And also, David Rudenstine, "The Day the Presses Stopped: A History of the Pentagon Papers Case" (1998)

And, Neil Sheehan's Pulitzer Prize winner: "A Bright Shining Lie : John Paul Vann and America in Vietnam" (1989)

Reading: Ellsberg, "Secrets: A Memoir of Vietnam and the Pentagon Papers" (2002)

DougSimpson.com/blog

What DVD CCA v. Bunner is NOT.

Downstream republishers of cracked secrets take limited comfort from the 2/27/04 decision for Andrew Bunner by the Court of Appeal in California. Limited to a ruling on a preliminary injunction, the opinion finds "little question" that the sharing of DeCSS "is unethical and and that it probably violates other laws." But an injunction against information no longer secret "can be justified only on a rationale of punishment and deterrence * * * ordinarily inappropriate in trade secret actions."

The opinion invites further research and analysis around its apparent limitations:

Irwin Schiff Case Gets Delusional, but Appealing

Tax scofflaw Irwin Schiff is delusional, say his attorneys (and his psychiatrist), and fantasizes that he is the only person who can interpret the federal income tax law. Not so, says his friend and co-defendant Cindy Nuen, who told the New York Times (Feb. 7, 2004 page B3) that his lawyers have filed that "ridiculous" defense just because they won't argue that the United State income tax law is "meritless and fruitless."

Of course, the truly delusional are always the last to know. See, e.g. Avika Goldman, "A Beautiful Mind" (Ron Howard Film 2001). (More ... )

The case also involves a pending appeal of a District Court injunction entered in June against Schiff or his associates selling his latest book advocating filing "zero revenue" returns regardless of your income. #357: 06-16-03 COURT ENJOINS IRWIN SCHIFF AND TWO ASSOCIATES

The ACLU filed an amicus brief in the District Court, and issued a statement in May. "This matter is significant because it is an attempt to ban a book that primarily consists of a political diatribe attacking the government," said Allen Lichtenstein, General Counsel with the ACLU of Nevada and author of the ACLU brief. "Regardless of what one thinks about the author's theories, his right to espouse them must remain unhindered."

Some remarks on the legal theories of the case ( U.S. v. Schiff, No. CV-S-03-0281-LDG-RJJ (D. Nev.) from Law.com

The Times reports that the Court of Appeals for the Ninth Circuit will hear oral argument on Schiff's appeal on Tuesday, February 12.

Comments?

DougSimpson.com/blog

Sensitive Info in Wired World: Yale ISP Reading Group

Readings are now online for first session of a reading group concerning the legal aspects of the PORTIA project. This semester, the group examines legal aspects of: copyright and digital rights management; SPAM and freedom-of-speech; privacy-preserving data mining; privacy-preserving data surveillance; and a topic to be announced. It will meet for five evening sessions at Yale Law School in New Haven, CT, starting February 5. (more ... )

The Yale Information Society Project describes the NSF-funded PORTIA (Privacy, Obligations, and Rights in Technologies of Information Assessment) as "a five-year, multi-institutional and multi-disciplinary attempt to examine, define and create technological systems that ensure the rights of data owners, data users, and data subjects. The project’s primary participants include professors from the Yale Computer Science department (as well as participants from other leading institutes in the U.S. and abroad). In addressing these issues, the project confronts difficult legal questions that pertain to privacy, intellectual property, and information law."

More info at:
Session1: Copyright, Digital Rights Management, and Privacy
Monday, February 9, 2004
Led by: Eddan Katz, ISP Fellow.

I plan to attend all five sessions. If either of my occasional readers are there, please introduce yourself.

DougSimpson.com/blog

DVD CCA drops Bunner complaint

IDG News reports (seen via The Standard) that DVD CCA, the holder of the rights to the CSS technology, has dropped its complaint against Andrew Bunner and others who published the DeCSS tools that allowed decryption of the DVDs protected by CSS. Their advocate's statement cites an "evolving legal strategy." See: Industry group drops DVD copying case. This case was outlined in a context of legal theory of trade secrets in Unintended Consequences: Institutional Secrets in a Time of "Smart Mobs".

DougSimpson.com/blog

Institutional Secrets in a Time of "Smart Mobs" - II

Two central themes come to mind thinking about the sequence of four cases that I sketched in Institutional Secrets in a Time of "Smart Mobs".

Institutional Secrets in a Time of "Smart Mobs"

Technology and constitutional rights intersect in ways that challenge traditional expectations of the security of government and corporate secrets. Networks allow "smart mobs" of individuals to share information in ways that are fast, cheap and out of control. Those with an agenda can today extract and publish institutional secrets in ways that may be hard to detect, let alone remedy with money damages or sanctions.

Q: Where should government and business look for protection? Tighter information security? Tough criminal laws and prosecutions? Prayer?

Q: What is the future of institutional secrets? (More ... )

The Pentagon Papers
In 1971, someone leaked to the New York Times the "Pentagon Papers," a top-secret DOD study critical of the United States involvement in Vietnam. The Times began publishing articles based on the contents, but the United States sued to block any further publication of the Top Secret material. The case quickly reached the Supreme Court, which decided that the damage to national security from publication did not outweigh the damage to the freedom of the press from prior restraint. The Court's ruling is a landmark decision on the balance between secrecy and free press. New York Times Co. v. United States, 403 U.S. 713 (1971)

The nine separate opinions (6 to 3 in favor of the defendants) left open the possibility of criminal prosecution of the Times and the Post after publication, but found insufficient basis for prior restraint. Of the majority, two maintained that the First Amendment provided no room for any prior restraint of the press. The other four conceded that prior restraint could be justified in proper cases, some noting as exceptions publication of troop movements in time of war, prohibitions of obscenity, and restraints on publication of material in violation of copyright, which protects the form of expression rather than the ideas expressed. Ibid. Members of the Court have since written about the importance of the Pentagon Papers to a matter of significant public debate as an essential element in the outcome. Bartnicki v. Vopper, 532 U.S. 514 (2001).

The Cigarette Papers
In 1994, thousands of pages of internal documents previously kept secret by Brown & Williamson Tobacco Corporation were anonymously delivered to the University of California, San Francisco (UCSF) with portions also sent to Congressman Henry Waxman and the New York Times. In a related case, District Court Judge Harold Greene characterized the documents as possible evidence "supporting a 'whistle-blower's' claim that the tobacco company concealed from its customers and the American public the truth regarding the health hazards of tobacco products." Maddox v Williams 855 F.Supp. 406, at 414, 415 (D.D.C. 1994).

The university library added the papers to its tobacco industry archives, made them available to the public and prepared to publish scanned copies electronically. They quickly became a popular source for anti-tobacco litigators and activists, through whom B&W learned of UCSF's collection in January 1995. B&W demanded that UCSF return the documents, deny public access and disclose the names of all who had seen them, and sued when UCSF refused.

The California Superior Court allowed UCSF to keep the documents and publish them. In its opinion, it emphasized the lack of evidence that UCSF was involved in any wrongful taking of the documents, the fact that they were not being introduced into evidence against B&W, the strong public interest in the documents' relevance to public health issues, and the futility of action against UCSF when the documents were widely available elsewhere. The California Supreme Court let the decision stand and on June 30, 1995, the University began publishing the documents on the Web. A year later, both a hard-bound and an online analysis of the collection was published by University of California Press.

The DeCSS Algorithm
In 1999, "DVD Jon" Johanson, a Norwegian, reverse-engineered the proprietary technology inside the Content Scrambling System (CSS) used by the DVD Content Control Association (DVDCCA) to protect commercial DVDs from unauthorized copying. He wrote an algorithm that enabled unscrambling of the disks, and called it "DeCSS." He posted it on the Web and copies spread rapidly. When it learned about DeCSS, the DVDCCA demanded that operators of websites where it appeared take it down and sued those that refused, including Andrew Bunner.

In California, the Superior Court hearing the case against Bunner found that DVDCCA had a likely case for Bunner's violation of California's trade secret act (a version of the Uniform Trade Secrets Act or "UTSA"). The Court entered a preliminary injunction against Bunner using or disclosing DeCSS or linking to sites that disclosed it. The Court of Appeals found that DeCSS was "pure speech" and overturned the injunction as a First Amendment violation. In August of 2003, the California Supreme Court reversed the appellate decision and sent the case back for further proceedings.

The California high court agreed that DeCSS qualified as speech protected by the First Amendment, but ruled that an injunction could be justified by an actual trade secrets act violation. They balanced the governmental interests served by the trade secrets act against the magnitude of the speech restriction that would result from an injunction. They found that publishing the DeCSS code was not necessary to debate on a matter of substantial public interest such as that which characterized the 2001 decision in Bartnicki v. Vopper, 532 U.S. 514 (2001).

Justice Moreno, in his concurring opinion, agreed that an injunction could be justified in a proper protected speech case, but maintained that this was not one of them. He argued that the record was clear that DVDCCA had no case against Bunner because DeCSS was so widely disseminated that it was no longer actually "secret." As a result, he wrote, it was not protected by the trade secrets act, making an injunction an unlawful prior restraint on speech.

The case was sent back to the Superior Court for further consideration of the merits of the claim that the CSS technology is a protected secret and that Bunner's publication of DeCSS violated the trade secrets act. DVD Copy Control Association, Inc. v. Bunner, 31 Cal. 4th 864 (2003). The DeCSS code continues to be widely available on the Internet at international locations easily discoverable through use of a common search engine.

In December, a Norwegian appeals court affirmed the acquital of "DVD Jon" Johanson on criminal charges of breaking the CSS copy protection on DVDs he bought. The charges were brought by the Norwegian Economic Crime Unit (ØKOKRIM) under Norwegian Criminal Code 145(2), upon the complaint of DVDCCA and the Motion Picture Association of America (MPAA). The Norwegian court ruled that his action was legal under Norwegian law. An earlier acquittal had been appealed by the government. See "Legal victory for 'DVD hacker," BBC News 12/22/03, and " and "DVD-Jon" Defeats Hollywood: Consumer Rights Upheld in Norway," IP Justice.

The E-Voting E-Mails
In August of 2003, electronic copies of thousands of internal e-mail messages between employees and contractors of Diebold, Inc. were posted on a publicly accessible website. The e-mails indicated Diebold had knowledge of security flaws and regulatory violations involving its electronic voting software widely used by state and local governments. News of the material spread, and other websites hyperlinked to the compilation, including student websites hosted on university computers.

When Diebold learned of the material, its lawyers issued "takedown" notices to ISPs that were hosting the material or sites linking to it, triggering the "safe harbor" provisions of 17 U.S.C. §512, the Digital Millenium Copyright Act (DMCA). Universities responded by directing students to take down the material and links, and cut off Internet access of students who failed to comply. Rather than filing the counter-notifications provided for in the DMCA, students moved the files to other sites and urged others to copy the files and "mirror" the archive on multiple hosts elsewhere, which many did. At Swarthmore, an activist group's website tracked the efforts of Diebold, the reactions of universities and students, and the spread of mirror sites throughout the Internet.

The national media picked up the story in October, widely publicizing the existence of the documents and Diebold's attempts to discourage their publication. In November, the website of Congressman Denis Kucinich posted excerpts from the material, adding a public scolding of Diebold and a call for a Congressional investigation into its actions.

Online Policy Group (OPG), an ISP to which Diebold sent a takedown notice, filed a federal lawsuit to enjoin Diebold from further efforts to discourage publication. OPG got legal represetation from the Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School. In a November 17 procedural hearing on a motion for a preliminary injunction, the District Court judge's questions focused on the public interest in information about voting systems and First Amendment issues raised by the controversy.

Diebold seemed to realize that the harder it pushed, the more adverse publicity it got and the further the information spread. On November 24, it advised the District Court that it would not sue those hosting copies of the materials for copyright infringement and was withdrawing its DMCA notices, as an indication of its commitment to an open discussion of "helping America vote better."
http://www.eff.org/Legal/ISP_liability/OPG_v_Diebold/DieboldResponse.pdf.

_____________

Some sources:

The Pentagon Papers

Case Note on DVD CCA v. Bunner (California 2003)

In August 2003 the California Supreme Court resolved a conflict between the status of DeCSS software as protected speech and the status of trade secrets as protected property, applying the "Madsen" standard of scrutiny of speech restrictions proposed as a remedy for actual trade secret misappropriations. It found no application of the Bartnicki decision, which it read as limited to speech addressing matters of more substantial public concern than those involved in the publication of DeCSS. It reversed a Court of Appeals ruling that an injunction on use and republication of DeCSS was an unconstitutional prior restraint, and remanded for appellate review of the factual determinations in light of these principles.

Judge Moreno's concurrence called for a higher threshold of proof of actual trade secret misappropriation before allowing such restrictions on speech, cast doubt that DeCSS still actually qualified as a secret, and challenged the efficacy of license agreements that attempt to override statutory shelters for "reverse engineering."

DVD Copy Control Association, Inc. v. Bunner, 31 Cal. 4th 864 (2003).

Procedural Status

The controversy arose from the Internet publication of DeCSS, a program that decrypts content on DVDs secured with the Content Scrambling System ("CSS"). The program was developed by a licensee of CSS that reverse engineered its proprietary technology despite a provision in the license forbidding such reverse engineering. The program was widely republished on the Internet, one of its republishers being Mr. Bunner.

When DVD CCA discovered the decryption tool was at large, it filed legal action alleging trade secret misappropriation in violation of the California version of the Uniform Trade Secrets Act (UTSA), Cal. Civil Code §3426 et seq. The District Court found that DVD CCA was likely to prevail on the merits and issued a preliminary injunction against the defendants (one of whom was Mr. Bunner) forbidding use, copying, or distribution of DVD CCA's trade secrets generally and DeCSS specifically.

The Court of Appeals assumed as true the trial court finding that a trade secret misappropriation had occurred but found that the injunction constituted a prior restraint of "pure speech" and violated the First Amendment.

The California Supreme Court also assumed that a trade secret misappropriation had occurred, but reversed the Court of Appeals and remanded for further consideration, holding that the First Amendment did not preclude a preliminary injunction on the assumed facts.

The Court's Analysis
First, the Court acknowledged that computer code such as DeCSS qualified as speech protected by the First Amendment, citing, with discussion:
* Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
* Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000)
* Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001)
* United States v. Elcom, Ltd., 203 F.Supp.2d 1111 (N.D.Cal. 2002)

Second, the Court found that the injunction was "content neutral" because its principal purpose was protection of a statutory property interest, with only incidental impact upon the content of the enjoined communication, citing, with discussion:
* Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)
* Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974)
* San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987)

As a "content neutral" sanction, the Court applied a lower level of scrutiny prescribed by Madsen v. Women's Health Center, 512 U.S. 753 (1994), under which the Court ust ask "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Madsen, 512 U.S. at 765.

The Court distinguished the decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), noting that "five justices in Bartnicki endorsed the application of a lesser standard even though the statute arguably prohibited 'pure speech.'" The California Supreme Court favored Rodney A. Smolla's analysis of Bartnicki in "Information as Contraband: The First Amendment and Liability for Trafficking in Speech" 96 Nw. U.L.Rev. 1099 (2002). In that article, Smolla makes the intriguing argument that the true holding of Bartnicki was expressed not by Justice Stevens' majority opinion, but by the combined opinions of the two concurring and the three dissenting justices in that case.

Bunner provides useful guidance about what might qualify as specially protected speech on matters of public concern. It does so through its discussion of why Mr. Bunner's situation does not qualify. The Court applied the test found in Connick v. Meyers, 461 U.S. 138 (1983) and examined the following elements of the content, form and context of the statements in question.
* The information in question was not publicly available and conveyed only technical information.
* DeCSS was not posted in order to comment on a public issue or to participate in a public debate. With the exception of a few "encryption enthusiasts," as the Court called them, the public would be interested only in the use of DeCSS, not the content of its code.
* The public debate over the use of encryption and copy protection of DVDs does not require disclosure of DeCSS, and the debate will not be impaired by enjoining its distribution.

Third, the Court noticed significant governmental interests served by California's trade secrets law, including innovation incentives, maintenance of commercial ethics and the protection of property interests. The Court found that the DeCSS content disclosed by Bunner did not address, involve or illustrate matters of substantial public concern, so that Bartnicki did not control its decision. It also saw a clear distinction from the cases involving attempts to enjoin publication of information lawfully obtained, such as:
* Florida Star v. B.J.F., 491 U.S. 524 (1989)
* Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)
* Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)
* Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977)
* Cox Broadcasting v. Cohn, 420 U.S. 469 (1975)

On balance, it found that the injunction satisfied the Madsen standard of scrutiny, assuming that an actual trade secret misappropriation occurred.

Fourth, the Court found that the injunction was not a prior restraint because it was content neutral and based upon unlawful conduct that had already occurred. It distinguished CBS Inc. v. Davis, 510 U.S. 1315 (1994) invalidating an injunction of a broadcast of a video revealing unsanitary practices in a meat packing plant. Without a finding that the video was unlawfully obtained, the substantial public concern with the facts revealed outweighed the interest of the packer in preventing the broadcast.

Finally, the Court applied the same analyses to dispose of Bunner's claims under the Constitution of the State of California.

It remanded the case for further review, emphasizing that the injunction was justified only if appellate review supported the finding that DVD CCA was likely to prevail at trial.

Judge Moreno's Concurring Opinion

In his opinion, Judge Moreno analyzed the case differently and questioned the validity of the trial court's findings. He cited the dangers that a preliminary injunction may work to bar protected speech before adjudication of the merits of the speaker's constitutional claims, citing Pittsburg Press Co. v. The Pittsburg Commission on Human Relations, 413 U.S. 376 (1973). Criticizing the majority's analysis as "incomplete," Judge Moreno characterized the injunction as "subject matter censorship" that was unjustified because DVD CCA's proprietary information had become so widely disseminated on the Internet that it was no longer actually a secret.

He acknowledged that trade secret laws serve sufficiently important societal purposes to justify limiting First Amendment rights in proper cases, citing:
* Cohen v. Cowles Media Co., 501 U.S. 663 (1991)
* Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)
* Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974)
* Ruckelshaus v. Monsanto, 467 U.S. 986 (1984).

He called for a more rigorous evidentiary standard in order to "separate meritorious trade secret claims from those involving protected speech." A plaintiff, contended Judge Moreno, "should be required to actually establish a likelihood of prevailing on the merits, regardless of the balance of harms," or the injunction may constitute a prior restraint.

He noted that a higher hurdle would also apply when substantial public concern was implicated, even when secrets were unlawfully obtained, as in New York Times v. United States, 403 U.S. 713 (1971).

He contended that there was "no likelihood that DVD CCA would prevail on the merits," because "DeCSS was not demonstrably secret in this case when Bunner republished it, and Bunner was neither alleged to be the original misappropriator nor to be in privity with any such misappropriator."

He also cast doubt on the use of a license agreement to nullify statutory language excepting reverse engineering from the definition of "improper means" of acquiring a trade secret, citing Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) and the exclusive jurisdiction of federal patent law.

DougSimpson.com/blog

Spread of Encrypted "DarkNets": The Legacy of RIAA's Crackdown?

Will the RIAA's legal push against music file sharing result in greater security for terrorists and organized crime, by promoting the spread of decentralized networks exchanging encrypted data, sometimes called "DarkNets"? For years, the government has worried about strong public key encryption in the hands of spies and criminals. The Clipper Chip was supposed to make the Internet safe for democracy, but it was quickly cracked and neutralized.

Consumers didn't bother to use strong encryption, because ... hey, its more work, and few folks have much worth the trouble of hiding. The RIAA's new moves, to obtain identities behind "peer-to-peer" file swappers by service of DMCA-empowered subpoenas, then sue those individuals, has dramatically changed the battlefield. As any student of military history and technology knows, the deployment of any new weapon is soon followed by the deployment of a new defense or countermeasure. Sometimes the countermeasure proves more powerful than the weapon: that's how we got the tank, as a countermeasure to the machine gun.

In today's e-letter, Clay Shirky suggests that in this case, the response to RIAA's offensive will be more widespread use of encrypted decentralized "dark nets" like WINW and BadBlue. He compares the situation to that during Prohibition, in which efforts to prevent alcohol consumption failed in their primary purpose, but did succeed in hatching organized crime: a countermeasure that survived the repeal of Prohibition and is a thorn in society's side today. He sees the result as a profound change that goes beyond the realm of music sharing.

"People will differ on the value of this change, depending on their feelings about privacy and their trust of the Government," Shirky concludes, "but the effects of the increased use of encryption, and the subsequent difficulties for law enforcement in decrypting messages and files, will last far longer than the current transition to digital music delivery, and may in fact be the most important legacy of the current legal crackdown." The RIAA Succeeds Where the Cypherpunks Failed, Clay Shirky (December 17, 2003).

See also:
Unintended Consequences: "Darknets" Offer Privacy to P2P Net
Unintended Consequences: EFF Links to 9th Cir Docs re RIAA Suit MGM v. Grokster, et al

DougSimpson.com/blog

Diebold Withdraws, Says EFF

Electronic Frontier Foundation reports that Diebold has backed down from its suit threats over those publishing or linking to their corporate records that reveal information concerning their electronic voting system. The court had ordered mediation, and Congressman Kucinich had entered the controversy in opposition to Diebold's actions. EFF has a series of links to documents in the case. EFF: Diebold Backs Down, Won't Sue on Publication of Electronic Voting Machine Flaws

DougSimpson.com/blog

Congressman Posts Diebold Document Excerpts

Ohio Congressman Dennis Kucinich - has posted excerpts from controversial Diebold documents on his House.gov website, with commentary on Diebold's position regarding other posters and his intention to investigate and to introduce legislation appropriate to the situation. Thanks to Donna Wentworth at Copyfight for the pointer to this. (Read more ... )

Rep. Kucinich says, at the posting linked to above, that "Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public’s information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.

EFF's Cindy Cohn, Counsel to OPG, has written a letter to Judge Fogel stating that Diebold has sent cease and desist letters to San Francisco Indymedia, an alternative media source that has posted excerpts of the controversial material. According to Ms. Cohn's letter, "Diebold claims that Indymedia's hosting of excerpts from the e-mail archives, as part of a story discussing the 'gems' available in the archive, also violates its copyrights."

The facts in this matter are developing in ways like that involving the Brown & Williamson tobacco documents back in 1993-1994. Privileged documents were taken from B&W by one of their paralegals, then released to national media and to Rep. Henry Waxman, then Chair of the House Subcommittee on Health and the Environment. At the time, Rep. Waxman was conducting hearings about health effects of tobacco and manipulation of nicotine levels.

At the time B&W found about the release, they had a pending civil suit in Kentucky against Williams, their former paralegal. In that Kentucky court, they obtained a subpoena for Rep. Waxman to provide them with all copies of the B&W documents he had received, and to submit to a deposition. Rep. Waxman's response was to remove the case to D.C., where the District Court quashed the subpoena as in conflict with the Speech and Debate clause of the United States Constitution.

The resulting opinion of the Court of Appeals for the District of Columbia is illuminating on the Speech and Debate clause and the scope of its immunities, as well as the removal of the Williams case to the District. Brown & Williamson Tobacco Company v. Williams 62 F.3d 408 (D.C. Cir 1995).

Question: Can we expect Diebold to send Congressman Kucinich a cease and desist letter, with a takedown notice to the ISP hosting House.gov? I'd like to be a fly on the wall when those arrive.

DougSimpson.com/blog

OPG v. Diebold Tests DMCA

Electronic Frontier Foundation is supporting and publicizing a lawsuit seeking to quash Diebold's notices to ISPs under the DMCA "safe harbor" clauses. EFF: Online Policy Group v. Diebold, Inc. EFF is hosting copies of the parties' pleadings and briefs at its site. Diebold had served DMCA notices on several ISPs (including OPG and Swarthmore College) that were hosting sites containing copies of Diebold emails and other records in which Diebold claims copyright. Swarthmore took down the sites in question, OPG decided to counterattack. OPG's complaint seeks injunctive relief alleging, among other things, copyright abuse. It alleges that the publication of Diebold's material is protected free speech on a matter of public interest: allegations of defects in electronic election systems made by Diebold and widely used in elections in the United States. A hearing was scheduled for 11/17.

DougSimpson.com/blog

No Court TV ... but we've got Blog

Who needs live TV in the courtroom when there are bloggers on scene? Thanks to beSpacific.com for the pointer to the minute-by-minute blog of John Allen Muhammad trial updates. Kerry Sipe, online news coordinator for The Hampton Roads Virginian-Pilot, is covering the ongoing Virginia Beach trial of the alleged DC/Virginia sniper. 24 postings on October 16 between 9:37 AM and 5:34 PM followed the questioning of each juror and decisions on their selection or release.

Open thread ... what do you think?

Software Maker Backs Off DCMA Suit Threat Against Princeton Researcher

SunnComm Technologies will not sue a Princeton grad student for issuing a Princeton University Computer Science Technical Report TR-679-03 that discloses a security flaw in SunnComm's software intended to block music piracy, according to the The Chronicle of Higher Education's Daily news for 10/13/2003. The company's stock lost value after the report of the student's disclosure, and it had threatened to sue under the Digital Millennium Copyright Act (DMCA). According to the Chronicle, the company's CEO said that "We feel that bringing legal action for damages against researchers in a higher-learning environment may contribute to a chilling effect on the type of research that faculty, staff, and students elect to pursue." (Read more ... )

(Editorial)
SunnComm chooses wisely when it steps back. The unbiased peer review of new security technologies is essential to the development of sound applications. Further, the United States Supreme Court has repeatedly protected academic freedom of universities under the First Amendment. Barring some overriding state interest or protectible property right, that freedom should include the right to study and publish factual information and opinion regarding the results of research by their students and faculty.

See eLawyer Blog: Reading: Schneier, Secrets & Lies (Digital Security in a Networked World), in which Schneier's strongly urges avoiding new or proprietary cryptography in favor of technologies and code algorithms that have been made public, analyzed and peer-tested for years by professionals.

See also Unintended Consequences: "Four Essential Freedoms" of a University Based in First Amendment, as re-affirmed in the June decisions regarding the University of Michigan.

DougSimpson.com/blog

"Four Essential Freedoms" of a University Based in First Amendment

In 1957, Justice Felix Frankfurter set an anchor for academic freedom in the U.S., drawing from language of South African educators then fighting their nation's ban on education of whites and non-whites in the same university:
". . . It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail `the four essential freedoms' of a university - to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy v. New Hampshire 354 U.S. 234 (1957).

In an October 11 address James Wright, President of Dartmouth College, tied Frankfurter's opinion to the history of constitutional protection of academic freedom, dating from a famous 1819 decision of the Supreme Court to two decisions just this year. His audience, the Dartmouth Lawyers Association, were not strangers to the topic. Nearly two centuries ago, Dartmouth was one of the first battlegrounds for academic freedom of universities from state interference. (Read more ... )

That battle arose over an attempt by the State of New Hampshire to take control of Dartmouth, a privately funded corporation created by a royal charter in 1769 and at the time religiously affiliated. Motivated by desires to change the curriculum of the college, the state legislature enacted legislation that changed the institution's name and changed the Board of Trustees so as to grant full control to the Governor of New Hampshire.

In its suit to block the statute, Dartmouth was represented by Daniel Webster (Class of 1802), who engaged in "one of the greatest lawyers' battles in our history." The Court overturned the statute as violative of the Contract Clause of the Constitution in the Dartmouth College Case, 17 U.S. 518 (1819).

Frankfurter's later opinion in Sweezy became an element of the Court's decision in Univ. of California. v. Bakke, 438 U.S. 265 (1978). In Bakke, Justice Powell quoted J. Frankfurter's elicitation of the "four essential freedoms" in his opinion rejecting the use of race to exclude some applicants from a special set-aside program for medical school admission.

Powell pointed also to Keyishian v. Board of Regents, 385 U.S. 589 (1967) in which the Court based academic freedom in the Constitution, saying: "Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment .[438 U.S. 265, 312]

The Court also recognized limits on such freedom, saying: "Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded." [438 U.S. 265, 314] "The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." [438 U.S. 265, 315]

In 2003, Bakke became the standard by which the Court evaluated the University of Michigan's freedom to decide "who may be admitted to study." In Grutter v. Bollinger (No. 02-241, June 23, 2003), the Court affirmed the process used by the Law School at the University, distinquishing it from a process of granting diversity "bonuses" used by the same university for other school admissions:
"Here, the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single 'soft' variable. Unlike the program at issue in Gratz v. Bollinger, ante, the Law School awards no mechanical, predetermined diversity 'bonuses' based on race or ethnicity."

In the Gratz opinion (No. 02-516, June 23, 2003), issued the same day, the Court found that the University's undergraduate admissions policy, "which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program."

In his address to the Dartmouth Lawyers Association, President Wright expressed his approval of the Court's decision. As part of its efforts to achieve a widely diverse student body, said President Wright, Dartmouth has for decades used the flexible, individualized admissions process approved by the recent Supreme Court decisions.

DougSimpson.com/blog

Zimbabwe Daily News Moves Web Base To Avoid Government Censorship

Denied a necessary license to publish, the Zimbabwe Daily News is moving its web base to South Africa, from where it will continue to publish online, while appealing its license denial. Several of its reporters were arrested last month for working without accredation, says the Zimbabwe Standard. See: allAfrica.com: Zimbabwe: ANZ Launches SA Based Website. Source: Zimbabwe Standard.

DougSimpson.com/blog

Reading: Rahimi - "Cyberdissent: The Internet in Revolutionary Iran"

Babak Rahimi's claim, in "Cyberdissent: The Internet in Revolutionary Iran," is that in Iran over the last decade, the Internet has provided a creative way for political dissidents to challenge state authority, despite official efforts in recent years to curtail Internet use for such purposes. In addition to reviewing recent history of online dissent and conservative censorship in Iran, he also points to scholarly studies indicating that (despite Rahimi's hopefulness) authoritarian regimes may be effective in controlling the Internet. (Read more ... )

Rahimi describes an Iran that encouraged the use of the Internet from 1993, with most of Iran's domestic access through the academic institutions, and a population heavily skewed to the young, with significant growth in the number of university students (especially women). This produces a large community of educated Iranians, most unemployed, returning to their home communities and seeking means of expression. Rahimi cites figures for 1,500 Internet cafes in Iran, based on data at the World Bank Development Indicator.

For an example of how the Internet and the Web have connected rural villages, Rahimi points to the website of the Village of Shahkooh, (a delightful site, from which many US web designers could learn).

Rahimi cites reports of the BBC and Payvand News to the effect that some 20,000 websites and weblogs have enabled free and anonymous expression by young Iranians, especially women. These online communities have been able to bypass the cultural and political pressures regarding speech, appearance and mingling of genders that are applied offline.

Rahimi reviews the rise of the "May 23rd" reformist movement with potential to develop a democratic state for the Islamic Republic, countered by a conservative judiciary and clerical segment. There has evolved, says Rahimi, a tension between two spheres of political authority, the elected Majlis or parliament and presidency, and an appointed clerical office of Valayat-e Faqih.

Despite increasing instances of reformist writers, including senior clerics, using the Internet as an outlet for their political discontent, conservative elements in the Iranian judiciary have taken steps to block sites that they see as objectionable. These efforts began in 1997, and resulted in the blocking or closure of a number of popular sites that supported reformist viewpoints and the jailing of journalists and closure of certain traditional media sources. For a description of these activities through 2001, see A.W. Samii, "Sisyphus' Newstand: The Iranian Press Under Khatami". 5 Middle East Review of International Affairs 3 (2001).

These efforts intensified in March 2003 after the beginning of the war in Iraq. Rahimi reports (as of the paper's release in September of 2003) 100 websites blocked and 15,000 more expected to be banned, and arrests of journalists, including the April 2003 arrest of Sina Motallebi, a journalist behind a prominent weblog formerly available at www.rooznegar.com. Rahimi says that "the conservatives appear to be engaging in censorship methods similar to those that are being used in Cuba."

See Boas and Kalathil, "The Internet and State Control in Authoritarian Regimes: China, Cuba and Counter-Revolution," (Carnegie Endowment for International Peace, Working Papers) in which the authors present the theory that authoritarian regimes may be able to effectively control and profit from the Internet.

Despite Boas and Kalathil's concerns, Rahimi concludes with a note that regulating the Internet will be "an extremely difficult task for the conservative authorities," and that "any attempt to stop the proliferation of modern technology is ultimately bound to fail.".

Rahimi's paper, "Cyberdissent: The Internet in Revolutionary Iran," originally published in Middle East Review of International Affairs (MERIA) Journal (VOL. 7 No. 3 - September 2003), was first mentioned here at: Unintended Consequences: BloggerCon: Dissent in Iran as "Revolutionary" Application of Blogs

Indian Gov't Blocks "anti-India" Yahoo Group, says CNET

CNET News reports that India bans a Yahoo group after Yahoo refused to take down the "anti-India" content of the "Ri Hynniewtrep" group after a government request, says CNET.

(Read more ... )

Attempts by governments in China and Myanmar to censor communications on the Internet have led to legislative initiatives in the U.S., including the proposed creation of a Federal Office of Internet Freedom.

The Attorney General of Pennsylvania recently backed off of a program to order blockage of potentially illegal websites authorized by a state statute, according to another CNET story. This followed a federal law suit by the ACLU and the Center for Democracy and Technology, alleging violation of the First Amendment.

Two years ago, the government of France ordered that Yahoo block access by French citizens to its auction site featuring Nazi memorabilia. Yahoo later obtained a U.S. court declaration that enforcement of the French order in the United States would be unconstitutional. For links to the French order, the U.S. Judge's decision and further discussion and reading on the French Yahoo case, see Kanoho, "A Victory For Yahoo!—The United States Cannot Enforce French Censorship Of Auctions" (Internet Law Journal, 2/2/02)

Organizations concerned about government or private industry interference with their communications have also turned to the use of private networks using encryption to conceal the content of their speech. Such are generically called "Darknets."

Thanks to OnlineJournalism.com's newsletter for the heads up on this story.

DougSimpson.com/blog

Censoring the Net: Study by Privacy International

Privacy International has made available the report on a twelve-month study involving over fifty experts and advocates from across the world, made possible by a grant from the Open Society Institute. The study, in PDF format is available at: Silenced: An International Report on Censorship and Control of the Internet. (Read More ... )

From the executive summary: "This study has found that censorship of the Internet is commonplace in most regions of the world. It is clear that in most countries over the past two years there has been an acceleration of efforts to either close down or inhibit the Internet. In some countries, for example in China and Burma, the level of control is such that the Internet has relatively little value as a medium for organised free speech, and its use could well create additional dangers at a personal level for activists. The September 11, 2001 attacks have given numerous governments the opportunity to promulgate restrictive policies that their citizens had previously opposed. There has been an acceleration of legal authority for additional snooping of all kinds, particularly involving the Internet, from increased email monitoring to the retention of Web logs and communications data. Simultaneously, governments have become more secretive about their own activities, reducing information that was previously available and refusing to adhere to policies on freedom of information."

Concerns over such monitoring and hazards are one motivation for the rising interest in "darknets," mentioned in a recent note "Darknets Offer Privacy" in Unintended Consequences.

Thanks to OnlineJournalism.com for the heads up on this study.

DougSimpson.com/blog

3rd Circuit On Copyright Misuse Defense

In 3rd Circuit Breaks New Ground on Copyright Misuse, 8/26/03., Tech Law Journal summarizes and discusses the August 2003 decision in Video Pipeline v. Buena Vista Home Entertainment . This extended note includes a review of the history of copyright misuse through the Lasercomb and subsequent decisions. (Read more ... )

The perceived offense in Video Pipeline was suppression of criticism, rather than unfair competition or violation of antitrust law. Such use by the rights holder undermines the purpose of copyrights derived from the United States Constitution, said the Court, which in the end found the defense inapplicable in the facts of Video Pipeline's case.

The commentator also briefs a decision by Judge Posner in Ty v. Publications International (7th Cir. 2002), involving the manufacturer of "Beanie Babies" and a publisher of books about the collection of such toys. Ty sued to prevent the publisher's unlicensed use of images of the toys, which are copyrighted by Ty. In his opinion, Judge Posner discussed the potential for using a copyright monopoly in one market (the toys) to take over and monopolize a second market (the publication of critical guides). He wrote that "ownership of a copyright does not confer a legal right to control public evaluation of the copyrighted work."

Judge Posner noted some of Ty's actions to suppress criticism by licensees. Ty reserved rights to veto any text in the publisher's guides. It forbade licensees to reveal that they were licensees of Ty. Despite Ty's control over content, it required licensees to expressly disclaim sponsorship or endorsement by or affiliation with Ty. But the facts of the case did not require determination of the issue, so Judge Posner left it with the sentence "We need not consider whether such a misleading statement might constitute copyright misuse, endangering Ty's copyrights."

The TechLawJournal commentator continues with a discussion of several other possible factual contexts in which the theory in the Video Pipeline and the Ty cases might be applied in 3rd Circuit Breaks New Ground on Copyright Misuse, 8/26/03.

DougSimpson.com/blog

"Darknets" Offer Privacy to P2P Net

File-sharers are turning to "darknets" to stay away from prying eyes, says Business Week Online in "The Underground Internet" (September 15, 2003). Sources of technology include Freenet, Waste, BadBlue and Groove.(Read more ... )

"Darknet" software is made to enable small groups of trusted individuals to quickly set up and take down secure networks on the infrastructure of the public Internet. The article says large corporations are using darknets to communicate and share information with partners in a channel more secure than their corporate intranets. Another potential use is for swapping of content, including unauthorized copies of copyrighted materials. There are a variety of "flavors" of darknet technology.

Freenet uses a ring of trusted persons to search for and exchange information. It has been used in various sectors politically threatened by systematic denial of free speech and privacy. For a technical and practical introduction to Freenet, see a 2002 IEEE paper "Protecting Freedom of Information Online with Freenet". It is also referenced in numerous scientific articles accessible through Citeseer. Freenet's Ian Clarke has declared that Freenet will not enforce copyrights.

Direct Connect (DC) is another, but BusinessWeek Online says it secures its net with passwords, making it easy to penetrate.

Waste is said to be more secure than DC, says BWOnline, because it requires participants to exchange public keys then encrypts data travelling between network participants in transit. It was quietly made available as open source software in May by Justin Frankel, at the time head of a unit of AOL, then quickly withdrawn. Not quickly enough. It was promptly picked up by SourceForge, which also develops Freenet. Frankel also developed WinAmp, Shoutcast and Gnutella, according to an article in MIT Enterprise Technology Review.

BadBlue offers two white papers about their technology: "A Standards-based, P2P Approach to Marketplaces and Exchanges" and "BadBlue Platform Approach: A Web Server in every device."

Groove is the company that was founded and built up by Ray Ozzie, using the ultimate proceeds his share of the 1995 sale of Lotus to IBM for $3.5 billion. Ozzie was the principal developer of Lotus Notes, which was the "jewel in the crown" that IBM was after. In 2001, Groove announced a strategic relationship with Microsoft . Ozzie's weblog.

The entertainment industry is not worried about darknets yet, according to Randy Saaf of MediaDefender, Inc., who told Business Week: "If they are using private networks, there is very little risk of being caught, but there is very little risk of them really doing much harm to the entertainment companies."

DougSimpson.com/blog

GrepLaw Interviews Yale's Ernest Miller on DRM, Privacy and Hemingway

GrepLaw | Ernest Miller on DRM, Privacy and Hemingway

GrepLaw is a blog at Harvard Law School's Berkman Center for Internet & Society. Ernest Miller is at Yale Law, and has been an editor at LawMeme, a law and technology blog there.

Miller explains for GrepLaw readers the Information Society Project at Yale Law School, and opines that blogs "are great places for law students to begin to find their voice and practice writing in this new medium. They will also be the center of more and more legal debate and analysis"

About the key issues of cyberlaw for the coming year, Miller tells GrepLaw: "The intersection of copyright law and the First Amendment is perhaps the key modern issue in this field. Until the theories of copyright and First Amendment can be reconciled, the law will continue to be confusing and come up with strange results. I am optimistic, though not overly so, that some movement on this front has already begun."

He has a lot to say about DRM and fair use, privacy and many other issues. An extended interview well worth reading.

DougSimpson.com/blog

IPJ Pans Proposed EU Directive on IP Enforcement

In January 2003, an EU Directive was proposed to standardize enforcement of intellectual property law within the European Community. The document detailed the perceived needs for which the solutions were proposed, including the implementation of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The proposal has met with criticism, most recently by IP Justice, which describes itself as "an international civil liberties organization that promotes balanced intellectual property law in a digital world. " On August 11, IP Justice released its "IPJ White Paper: Overbroad Provisions Threaten Civil Liberties, Innovation and Competition."

The IPJ paper opens with the charge that the proposal "contains a number of seriously troubling provisions that threaten innovation and competition and endanger the civil rights of all Europeans. Specifically, Article 9 creates broad and easily abused subpoena powers for intellectual property holders to obtain personal information on consumers. And Article 21 mandates a ban on technical devices that threatens innovation, competition, the fair use (fair dealing), and free of expression rights of Europeans."

DougSimpson.com/blog

"Copyright and Digital Media in a Post-Napster World"

GartnerG2 and The Berkman Center for Internet & Society at Harvard Law School released "Copyright and Digital Media in a Post-Napster World". This 45-page white paper reviews basics of US and EU copyright law, the impact of digital technologies on the business models for music, movies, television and books. It includes briefs of cases dealing with fair use, the DMCA, constitutional issues, e-publishing rights and non-copyright laws protecting creative control or distribution, as well as sketches of pending legislation.

It includes a description of various forms of Digital Rights Management (DRM) tools that embody a rights model, such as Open Digital Rights Language (ODRL), extensible rights markup language (XrML), content scrambling system (CSS) and Johansen's DeCSS program, the Secure Digital Music Initiative (SDMI) and Macrovision's CDS-300.

The authors suggest that the history of "launch and crack" associated with DRM systems will continue, and "points to a longer-term requirement for media companies and copyright holders to shift away from a mindset of absolute control over every piece of content." (white paper, p. 38). The authors also suggest that using technology to enforce copyright rights cannot map the evolving doctrine of fair use, pointing to Prof. Lessig's writings on code as law. Further, they say, such control stifles or penalizes innovation. They close the DRM section by introducing GartnerG2's concept of "perfectly portable content," described in the paper.

The paper closes with some editorial remarks and a promise of another publication to be released addressing five scenarios of possible outcomes under different assumptions of the playout of tech, business, legislative and legal developments.

Source: "Unintended Consequences" at DougSimpson.com/blog

Reading: Boyle: Shamans, Software and Spleens

James Boyle's book Shamans, Software and Spleens (1996) was a reference in Lessig's Code, and attempts to construct a social theory of the information society. He addresses international policy considerations of current intellectual property law and theory, conflicts between incentives and monopolies, efficiency and property. James Boyle is Professor of Law at the American University.

Boyle utilizes four "puzzles" to illustrate the issues he sees: 1) conflicts between copyright and free speech, 2) the prohibition of blackmail, 3) the prohibition of insider trading, 4) the patenting of biologicals obtained from human and native sources, as addressed in Moore v. The Regents of the University of California, 793 P.2d 479 (Cal. 1990), cert denied, 111 S.Ct. 1388 (1991).

He finds that what he calls "a romantic vision of authorship" can explain the outcome of many controversial issues in the realm of intellectual property and privacy, when combined with "the theme of originality, and the conceptual distinction between idea and expression." Id. p. 98.

He raises doubt that such theories will always result in optimal solutions, and that the trend is toward increasing rights for those seen as "authors" at the cost of free speech, the public domain and the interests of indigenous populations and biospheres. His conclusions in this 1996 book are an expansion upon a manifesto published in 1993 called the "Bellagio Declaration"

DougSimpson.com/blog

ACM "White Paper on Internet Governance"

ACM has released its "White Paper on Internet Governance: A View From the Trenches. It "discusses ICANN's history, structure, and scope and focuses on the ability of ICANN to create private rules and regulations that impact free speech and robust use of the Internet by noncommercial communities and individuals," according to a cover letter which also says that it discusses "barriers to participation in ICANN for the noncommercial community" and identifies tasks for the noncommercial community to improve its voice. The report was prepared through a grant from the Ford Foundation's Media Arts and Culture unit.
Thanks to BeSpacific for the word on this resource.

ICANNWatch has noted that the major foundations have pulled back from funding public involvement in ICANN governance, in "Will the Foundations Regain Interest in the Public Interest in ICANN?" posted 8/7/03.