Rotisserie Late Answer Archive
How is it possible that something so free and endless as the Internet can spawn so many limitations for business because of patents, trademarks, and rights to intellectual property. I have been in ecommerce and online advertising for several years and to this day it still amazes me when companies manage to obtain patents on what seem to be ideas and methods that have been around for decades which also have no unique characteristics that warrant a patent. My two favorite examples are Coupons and Displaying Advertisements. Cool Savings managed to get a patent on coupons and DoubleClick was awarded a patent for displaying advertising on web sites. The above patents were nothing compared to the patents awarded to Amazon but the two I mentioned affected two companies that I started. I do not have specific goals in mind in regards to what I would like to get out of the course. I am very excited about the topics that are listed in the syllabus because they are all very relevant to what I do on a daily basis. There is not a week that goes by that I do not get a letter from a law firm requesting me to release a domain or that I do not send a letter to another publisher asking them to remove content or technology that was illegally copied from one of our sites.
I would say that the biggest question I have for the beginning of the course is exactly why web sites want to know who you are. Meaning, why they use cookies? I understand that they cookies are put into your computer when you visit a website. I also understand that when you visit that website again, they know you have been there before. I can understand on travel websites(travelocity) that it may be for convience. Meaning that if you return back to the website, you don't have to put your login name, and all you have to do is remember your password and you are logged in. However, why would there be other reasons for using cookies. I am always hearing about how computer junkies are disabling cookies from entering their computer. Why would they care? Do they take up space and make their computers slower? I feel as if I have a positive attitude towards the internet. I have a computer in my home and I use the internet every once in a while. I am never offended or outraged when I return to a website and I can realize that they put a cookie in my computer. I also only use my computer for word processing and the internet. However, some people really see this as an invasion of privacy and are extremely scared about having these cookies in their computers. If I thought someone might show up at my front door as a result of me having one of these cookies in my computer I might be somewhat scared, but I really don't see why everyone is making such a big idea out of these cookies.
I am not a techie. I didn’t even have an email account, let alone Internet access, until college. For much of my life I used a Commodore 64 and simple word-processing programs. I knew about service providers like AOL. I heard stories about websites that pretended to be what they were not – we were warned in junior high that whitehouse.com was not run by the executive branch of the US government. But I feel to a great extent I got on the internet joyride a little late. Maybe that explains why I’ve always been a bit paranoid about the Internet. And why, for the most part, the biggest net-related questions I have relate to issues of privacy and security on the web, particularly the privacy and security of web-users who are not necessarily the most tech-savvy. So much personal information about an individual can be gathered via the Internet either directly (when one fills out one’s credit-card information on a web form), or indirectly (when a company tracks the websites one visits and compiles that data). As a non-techie I sometimes have a hard time keeping up with all the nifty new methods that pop up online for invading your privacy. Not that I don’t use the Internet. I do, perhaps too much. I can’t remember the last time I bought a map in a store (see mapquest.com), or called information for a fellow classmate’s number (see www.fas.harvard.edu/fas/directory.shtml) or went 20 minutes without knowing who that guy was who was in that movie with that girl who was on that show (see imdb.com). And sometimes I get cautious, and mess with the options on my browser, disabling cookies and java scripts. And sometimes I run Ad-Aware and Norton, and I get indignant and outraged. But generally I opt for the faster loading-time, and resign myself to emptying my cache and Temporary Internet Files folder when I get around to it. But what about the Internet users who are even less tech-inclined than I am, who take their anonymity for granted, who assume they can navigate the web like they traverse the streets of a big city, free from anyone knowing who they are or what they read or buy or look at? I think my greatest concern is the invasion of the privacy of those users who don’t even know their privacy it at risk. (WC 395)
Not a late response -- just a clarification. I was not officially enrolled in the course until late in the drop/add period. While I did not submit a response directly to the Rotisserie for week 1, I did email a response to Rebecca.
When I Enrolled in this course I was very concerned about a lack of control and privacy an individual had on the internet. In reading the course description i saw that this was to be an important concept in the course and I would be able to discuss these concerns and hopefully better understand what could and could not be done with relative safety and confidence of privacy while surfing the net.
Alexander Mittendorf - Week # 1
When the medium of television was invented, futurists predicted that the new technology would be a method of social progress, serving as "an instrument for the development of community leaders" or even as "a form of psychotherapy" (1). While few individuals today doubt television's pervasive influence on modern society (an entire nation fixated last night on the Super Bowl is one example), many, including myself, dispute its supposed salutary effects. It is a trite phrase often mentioned in super-hero comic books that "with great power comes great responsibility." The battle over the responsible use of the great force known in the American living room as the "boob tube" has largely been lost, in favor of mindless entertainment that lowers standards, shortens attention spans, and disengages people from their "real" surroundings. As the still relatively nascent web matures, society will face a similar series of decisions that will determine whether the internet becomes a positive medium of expression. Just like early broadcast television, the appropriate level of government oversight, protection of intellectual property rights, and assertion of free speech must be decided to insure that the medium maximizes its benefit to society. By exploring these issues in the Internet and Society class, I hope to be able to reason intelligently about their trade-offs and resolve these pressing questions in my own mind. As a computer science concentrator at the college with network programming experience, I have an understanding of the technical foundation for many of these concepts. However, I want to analyze the societal implications and fulfill my desire of attending law school and one day working for the government in determining internet policy. However, all this begs an even larger question: should we be making normative judgments about the medium in the first place? Perhaps, the web is just a snapshot or a magnification or even an empowerment of our collective human nature. A cynical Clive Barker once wrote, "Television is the first truly democratic culture -- the first culture available to everybody and entirely governed by what people want. The most terrifying thing is what the people do want" (2). Clive obviously believed that the television is trashy because people are trashy and not the other way around. The internet is even more democratic, and, thus, even more "terrifying". In a 1998 published study on the top queries of the Altavista search engine, "bestiality" ranked #25, and "beastiality" an even better #20 (3). Indeed, does the web point in the way of progress or profligacy? Does the web have any direction? Should it? Should we make it? And most importantly, who is "we"? These burning questions are the reason why I have enrolled in Internet and Society. The answers are what I hope to learn. (1) Public Radio and Television in America: A Political History, Ralph Engelman, Thousand Oaks, Calif.: Sage. (2) http://www.freemaninstitute.com/quotes.htm (3) http://citeseer.nj.nec.com/70663.html
Alexander Mittendorf - Week # 1
I think your commentary on the evolution of the Internet is insightful and precise. You mention that "the overall quality of information declined" as the Internet "gained exponential amounts of information". I think that's very true, but inevitable. Once you make a technology easier and more accessible, as the Windows Operating System and its browser products did to the Web, it follows that no longer will the technology be the exclusive domain of academics, intellectuals, and technophiles. Rather than adopt a plangent tone, I think we can be optimistic that academics will continue to have access to data and the technologies (like google.com) that make sifting through the web possible. However, I think we ought to be concerned with the general population and its usage of the Internet. As you astutely comment, ordinary people must wade through "cyber-trash" to get data of "questionable" truthfulness. As an example to further your case, we only have to turn to the fact that a single person can spread a rumor nationwide with a lone email. The case of the alleged renaming of Kentucky Fried Chicken to KFC since the company no longer used chickens spread across the country (http://www.snopes2.com/horrors/food/kfc.htm) before it was debunked. There is, in fact, the hope that the web can self-police and fact-check itself. The marginal cost of speaking on the web is very small. Thus, for every "corruption" of a concept, there is a clarification. The danger becomes one of who has the "loudest megaphone". Indeed, those who have the skill to better position a site on a search engine or the impudence to start chain letters publicizing their ideas could potentially dominate discussion regarding a topic and prevent more reasonable alternatives from reaching web surfers. Your statement is significant because it highlights the major concerns regarding the web, especially considering that high school students today are likely to conduct the majority of their research for a paper online. I think your second part is less convincing. Though I, too, wish the top-level domains were more accurate, I think that directory services such as yahoo.com and Netscape's http://dmoz.org/ fulfill the categorization and searching capabilites you would like to implement among the top-level domains.
What's your biggest Net-related question, the sort of thing that inspired you to take the course? What would you like to have learned by the end of the term? I guess my biggest net-related question is fairly simple. I would like to know how the Internet changes the power structure in society. What should we expect? If the Internet is changing our lives then do the people instrumental in doing so now control some part of our lives? We are greeted by a friendly interface, but most of us have no idea who is on the other side and who is pulling the strings. Will those of us who do not have a good grasp of what is behind the ‘curtain’ be completely powerless and alienated? Who will protect us from both those digital savvy individuals, who are now greatly empowered by the net? Who will protect us from those large, powerful corporations, such as Microsoft and AOL, who seem to control and monitor our every move and insist on an Internet on their own terms. The Internet seems to give a huge amount of power to individuals who know. Does this mean that there will be a knowledge gap? Clearly we must turn to the government to protect the vulnerable. But where do we draw the line? This country harbors a tremendous amount of distrust towards government. To what extent is this warranted? I would like to end this semester having learned some of the tools necessary to think about these questions.
Response to David Tudor's Week 1 Answer: The links you have provided to these new threats to the freedom of speech on the internet has given me much food for thought (as well as fuel for my fears). I was not aware of these new incursions, but am not altogether surprised given the post-September 11 measures that have more or less steamrolled over left-wing objections in the name of national security. On the other hand, I wonder whether there are any constitutional objections to these surveillance systems proposed. For example, as the Electronic Frontier Foundation pointed out, the wide net cast by the "Carnivore" program is arguably a violation of the constitutional freedom against unreasonable searches and seizures as embodied in the 4th Amendment. By widely intercepting and gathering information from the internet, without any apparent criteria, such actions would seem to lack the probable cause required for searches and seizures to be allowed under the 4th Amendment. What I wonder about though (and which the article does not answer) is whether specific searches through the use of "Carnivore" by the FBI have been sanctioned by search warrants. If yes, it seems that the court can act as a brake on the misuse of this program. Even so, the FBI may still be able to seize other information from the internet in the course of a legitimate search under the "objects in plain view" doctrine. This possibility is dangerous because "Carnivore" has the power of opening anything on the internet to "plain view". At that point, privacy on the internet would become a nullity. Finally, there is a remaining concern under Katz's requirements of subjective/objective expectation of privacy, in the absence of which there is no "search" under the 4th Amendment. While a person sending private information over the internet may subjectively expect that the information would remain private, it is debatable whether such an expectation is objectively reasonable given the many ways in which interception can occur. Of lesser concern to me is the possibility that the RIAA would be allowed to hack into individuals' computers to locate evidence of electronic piracy, while shielding itself from liability for damages caused by their intrusions. If the government itself cannot do such hacking without amassing enough evidence to show probable cause and pass other legal hurdles, how much less so for the RIAA which is a private actor? To me, alarm bells about the Anti-Terrorism Act proposed by the DOJ, which includes hacking in its list of terrorism offenses, are also muted. While increasing the maximum penalty for computer hacking to life imprisonment does seem rather harsh, the proposed act (as least as portrayed by the article) does not seem to violate criminal defendants' fundamental rights unless it is freedom from cruel and unusual punishment (a bit far-fetched).
Response to Arturo Grinberg Arturo, I too am an Engineer, although I’ve decided to move over to law, I always try to remember my engineering roots. That being said, I think you will find this course very different than any engineering one you have had. Typically, I have found in law school here that the classes focus less on practical use and much more on theory and opinions. However, this can be a good thing as you gain an understanding of the school of thought behind certain theories and applications. As opposed to most of your science classes, you will probably learn no “right” answers here as there is a counter argument to almost everything. Law school classes here tend to try and show where we should go from here, without really letting you know where “here” is. I hope that the course fulfills your expectations and, regardless of the rest of this post, I really think you will enjoy it. Personally, I hope to get a lot of practical knowledge out of this course as well. I’d like to know the concrete “you must do this” doctrine of some of the regulatory practices as well as some of the more theoretic bases that should shape future policy. Let’s see what happens.
This is an interesting question. I have wondered about the same thing. From my limited awareness, the law on this is as of yet largely unsettled. See http://www.cdt.org/jurisdiction/. There has been at least one international case where this issue has come up: French courts attempted to hold Yahoo responsible for illegal (in France) hate speech (more specifically, the sale of Nazi memorabilia), holding that it must filter such speech from French users. This fall, a U.S. District Court held that U.S. held that American free speech law would control, and that Yahoo would not be liable for French fines. See http://www.newsbytes.com/news/01/172005.html. Jurisdiction is just really tricky. It is a great example of the "middleman" issue we discussed in class on Monday. More specifically, it raises the question [among others]: Who should be responsible for hate speech posted in one country in access in many others? How about for crimes (e.g., hacking)? In my opinion, with regard to speech, it does not seem reasonable to prosecute ISPs and web site operators for things they post which are entirely legal in their own countries. Each country-like parents with filtering software-should probably bear the responsibility for what their citizens can access. And to the extent they cannot effectively filter, maybe they should just prosecute those citizens who insist on looking at the prohibited material. Otherwise the whole Net would have to sink to the most constraining common denominator in the international world (which we know can get pretty constraining, e.g., the Taliban).
Response to: Jonathan_Blavin (Jonathan Hugh Blavin) Rotisserie #1 <I>Thus, the “big question” I have is: How can we better understand the rules and standards built into technical architectures such as the Internet in order to craft appropriate legal rules that respect the rights and freedoms of individual users, as well as corporate and governmental entities? </I> Given that the Internet, or at least our basic legal operating system until commercial explosion, relied upon norms of civility rather than legal restrictions – why are formal measures necessary or required? I read many well-intentioned pleas for legal regimes, but fail to understand why the corporeal example is either necessary or required within the non-corporeal one – particularly given governments’ notorious “speed” in keeping up with technological activities. More often than not, these pleas took the form of what I’d call the “Four Horsemen” of legal actors: Child Exploitation, Gangsters/Organized Crime, Terrorism & Flame Wars (oh my!). My thought is that these “wars” are truly illusory, raised not out of actual threats but rather as means through which the government may impose itself into this area of life. Today we have a fifth equestrian: Copyright. I think the case is stronger here than for the other horses, but hardly compelling to “respect the rights and freedoms… of corporate and governmental entities” when those rights and freedoms are built and sustained by a government for the people, by the people, etc. etc. <I>By the end of the term, I hope to have a fuller understanding of how both technical and legal rules can converge in a way that promotes technical innovation while preserving fundamental rights and liberties. Without the ability of sound legal rules and principles to promote our most cherished constitutional protections, we risk creating a technical reality that locks out individuals, chills open, democratic dialogue, and interferes with future innovation.</I> Well said. I responded to your post because I found it incredibly articulate and compelling. I agree with you in part: we must preserve fundamental rights and liberties. The part I disagree with you about is this: that government is the best actor to do such. The nature of government, whether we speak to it in terms of social contract theory or what-not, is to restrict actors in multiple ways. Rights exist prior to government; government merely protects those who are unable or unwilling to protect their rights. In a technological environment, government is at a disadvantage – hence the beautiful, liberating diversity of the WWW. For every move a government actor makes, whether it’s Scientology seeking an injunction against someone posting hidden secrets about volcanoes & aliens or Etoys getting rid of Etoy.com, technological actors will innovate and attempt to recover these freedoms. Indeed, “Don’t Tread On Me” is nowhere more fully fitted to an ethos than hackers – and rightfully (and thankfully) so. Thank you for an exciting post! JMDB
Unfortunately I am not sure what the question is for this week, but I am assuming that it has to do with what I expect out of the course. My interest in the course seems to come from a natural curiosity regarding the subject matter. It is obvious that the Internet is an important and growing part of society and that there are new questions to be answered everyday regarding the different issues being brought up and that continue to emerge. I, like many, access the Internet everyday as a means of information and communication and cannot imagine, somewhat unfortunately, being without it. I hope to learn more about how this new 'society' will emerge and how it will be governed.
Dear Ms. Lambreth, I am responding to your October 17th letter regarding the MPAA’s claim that I am violation of Federal copyright law. I believe that I am not directly in violation of Federal law. Specifically I am referring to the 1984 supreme court case SONY CORPORATION OF AMERICA, v. UNIVERSAL CITY STUDIOS, INC. The ruling on the case allows me to use a VCR to record programs that I might not be able to view at the time it is televised so that I might watch it at a later time. The practice is known as “time-shifting.” It was believed that such practice increased the television viewing audience. The MPAA’s complaint against me in this case is quite similar to the 1984 supreme court case. The two respondents in that case were, as the court held, “unsuccessful” in their attempt to prove that the practice of having recorded copies of television programs on tape “impaired the commercial value of [Universal’s] copyrights or has likely created any future harm.” Based on this, the MPAA has no legitimate claim in holding me liable to the Copyright Act. The VCR, which the plaintiffs were attempting to force Sony to modify, is analogous to my hard drive. One is an analog format; the other is a digital format. The network I used to copy the Simpsons episode “Sweet Seymour Skinner’s Baadassssss Song” is analogous to the network of local Fox affiliated TV stations. The key is that Gnutella offers me the opportunity to “time shift” just as the VCR offers me the opportunity to “time shift.” This practice clearly enlarges the viewer audience. They are not losing any commercial business, as I am not paying Napster or any one else for the service. I am engaging in a non-profit, non-commercial activity and am witnessing an audio-visual piece which I had been given the “right to witness entirely free of charge”, as was the case in Sony v. Universal. This, the court ruled constitutes “fair use”. Thank you very much for your concern. Yours, S.H.
You've brought up some interesting points which are quite thought-provoking....does strictly personal use come under the heading of fair use? I will quote what Melvin Belli, a famous lawyer, said in his book "Everybody's Guide to the Law"...the following can be found on page 498....which is somewhat paraphrased to speed up the typing process... ***beginning of semi-quoted material*** When it comes to the factor of the purpose and character of the use, uses that are allowed are as follows: using the copyrighted material for criticism, comment, news reporting, teaching (i.e., the photocopying of the material for classroom use), and research. For example, book reviewers can generally quote copyrighted material without violating the Copyright Act. ***end of material*** Does personal use satisfy any of the criteria for fair use, or would it be more "fair useworthy" if it were for more educational or research purposes as opposed to recreational purposes? Where does it say "recreational use" in the Copyright Act? Just wondering how invoking personal use would stand up in court... As for contributory and vicarious copyright infringement, here's a question...if Melvin Belli's hypothetical book reviewer, esp. one who writes for a prestigious newspaper with deep pockets, were accused of some copyright violation, would the New York Times be guilty of contributory and vicarious infringement? This may be going off on a small tangent, but this is a question that was raised in my mind by writing this response to Mr. Malik's answer.
Anna McGuigan Morse - Week # 2
Dear Cesar Santacruz: I am in receipt of your response to the letter your received from Courtney Bickel Lambert, Ph.D regarding your questionable activities back on April 16th, 2001. I agree with your reference to Section 107 of the Copywrite Law of the USA regarding fair use of copyrighted work and appreciated the reference in your letter. Since you did or will receive any monies or obtain a profit of it as stated in your letter then no wrongful act was done by you. I probably would also have included a sentence or two about Harvard's F.A.S. copyright policy since being a student you are obliged to be and remain in good standing while at Harvard. In the policy it mentions about ciolation of file sharing and copyright laws, if I remember correctly. In regards to contributory one who KNOWINGLY contributes to another infringement is at fault. But you did not knowingly knew this - correct? I am sure that in the future you might cease downloading any shows by the producers of "The Simpson's" following this incident. But there is free expression and free sharing of ideas available to all in the country but one would have to KNOWINGLY contributed to another's infringement to cause flags to go up and be in violation of copyright regulations. In then there are also state laws of Massachusetts to be taken into consideration and I think the penalties are around $150,000.00 per violation. A tad hefty for a student's budget. But what about Title II, Section 202 of the Digital Millennium Copyright Act where non-profit educational institutions shall not be liable for monetary relief...unless KNOWINGLY exercising operational responsibilities directly related to the institution function as a service provider? I think Harvard is a non-profit educational institution (?). I am very glad to hear that you will immediately comply with the recommendations stated in their letter and I am sure you did not do any such act knowingly to cause any violation of any law or institution's policy. I am sorry this happened to you. What a terrible letter to receive but you handled the situation excellent. Have a good day. Anna McGuigan Morse Student, Harvard Extension
Candice Berdichevsky - Week # 2
Ms. Courtney Bickel Lambreth, Ph.D. Lecturer on the Study of Religion Allston Burr Senior Tutor Dear Ms. Lambreth, Please be advised that this letter is a formal apology and an explanation for my conduct. The material has been removed and destroyed from Harvard’s computer network system and my personal items. It is my sincere hope that Harvard not terminate my network access. It was not known to me that the transmission of such material over the Internet violated the copyright laws of the Motion Picture Association of America. The use of the download was purely for entertainment purposes, nevertheless that is not an excuse for my conduct. I will seek to learn more about this type of offense, and aspire to never committing such a vapid action again. My sincere apologies,
Dear Ms. Lamberth: <p>In response to you letter pertaining to my use of the Gnutella network to download an episode of The Simpsons, I am innocent. I believe that I have not violated the Harvard Copyright Policy, since I have not violated the use of any such copyrights. I do not appreciate your hast in accusing me of such a thing. My download of “Sweet Seymour Skinner’s Baadassssss Song” falls under the protection of the “fair use” exception to copyright law because I was using it for educational purposes. I did in fact download the video mentioned in you letter, however I was using this material for my “media in today’s society” course. <br>There was no monetary value associated with my download. The copyright law protects authors and owners from redistribution of their protected material. It ensures that all monetary incentives are legally assigned to the owner. My use of this Simpson video does not deprive the author of any profit. TV shows are not sold, and there is no way for me to buy “Sweet Seymour Skinner’s Baadassssss Song.” Therefore in using the episode without paying I am not depriving the author of any profit the may have gained from my usage. <br>
Reponse to Margaret Marcum: Dear Ms. Marcum, Thank you for your response to my inquiry regarding your use of peer-to-peer software on Harvard's network. I understand your concerns about information availability and free access to the public domain. Gnutella, however, is not Channel 10. The Simpsons creators have not been paid for online availability of their program, they do not have control over its "broadcast," and they are ready to use legal action in order to enforce their copyright. While you have mentioned many legitimate, non-infringing uses of Gnutella software, the exchange of copyrighted material is not allowed under University policy. So long as you benefit from Harvard's resources, you must adhere to its rules. Our policy is not meant to decrease your access to public information, but rather to respect the rights and legal demands of copyright holders. While you are certainly allowed to continue using Gnutella for legitimate exchanges of information, the downloading or uploading of copyrighted material will result in a termination of your Harvard account. You are also certainly allowed to find and use an independent ISP that is not affiliated with the University. Yours, Ms. Lambreth.
- Week # 2
http://www.lawn-and-landscaping.info
Dear Dr. Lamberth: Thank you for your letter of October 17, 2001. I have read the Harvard University copyright policy, and do not want to risk the loss of network access. I write to inform you that I have deleted the file “Sweet Seymour’s Baadassssss Song” from the hard drive of my computer, and I have also removed the Gnutella software that allowed me to obtain it for free. As you may be aware, I intend to apply to law schools this Spring, and since receiving your letter I have become interested in the copyright law issues surrounding services such as Napster and Gnutella, which I used to use (before I became aware of the damage that they do the livelihood of artists and authors in the record and movie industries). From my recent reading, I completely agree with the University’s policy on copyright infringement, and am glad it was brought to my attention. In fact, I would be more than happy to send an email to friends I have here in the House, who I know also use internet file-transfer services, to inform them directly of the Harvard policy and why they should not use such services. It is clear to me that in downloading files from the internet I have breached the Copyright Act. Unlike in the famous Sony or Napster cases, a claim against me would be one of direct infringement, rather than contributory or vicarious infringement. The two elements a plaintiff must show for direct infringement are ownership of the work, and copying. Napster. Although, I am not sure who owns copyright in “The Simpsons”, it is definitely not me, and I have both copied an entire episode of the series and allowed it to be copied from my computer by other Gnutella users. On the basis of what the Ninth Circuit said in the Napster appeal, what I have done would breach of the right of reproduction in section 106(1), and the right of distribution in section 106(3) of the Act. Furthermore, I do not think I have a strong defense under the doctrine of fair use contained in section 107. Although the purpose of my copying of the episode was personal (rather than commercial), I copied the whole of a work which required a great deal of creative energy to produce so that I would not have to purchase the DVD of that episode. Please apologize on my behalf to the Motion Picture Association of America, and assure the organization that I will not do it again. Sincerely yours, I&S Devil’s Advocate
Ignorance of copyright infringement is probably sufficient to disprove claims of direct or contributory copyright infringment on the part of the student. If a student installed Gnutella on his or her machine because his or her friends said it was neat, but the student was unaware of the fact that this enabled the downloading of local files, that student had no direct knowledge that they were distributing copyright work. At that point, after a formal warning, like that of the Senior Tutor, would serve to enlighten the student as to their infringing actions, and the student would then need to act. -mike
Dear Andrew Song, I think you have made a very valid and interesting point bringing up "the Electronic Communications Privacy Act of 1986 prohibits non-public providers such as Harvard from the interception of electronic communications (18 U.S.C. §§ 2510-2521) and accessing stored communications (18 U.S.C. §§ 2701-2711). Second, Harvard's actions also constitute a tort of intrusion into seclusion because it is 1) an intrusion, 2) that is highly offensive, and 3) in which students have a reasonable expectation of privacy. Rest. (Second) of Torts § 652(b)." I do agree that Harvard should not have invaded the student's privacy, however Harvard does reserve the right to do so given certain circumstances. Also, Harvard is not the government, and in a sense can be looked at as being a person. Harvard can not act for itself, people have to act on behalf of Harvard. Therefore, Harvard can have it's own computer rules and regulations that need to be met by its users. With in Harvard's computer rules and regulations it states: Computer and network facilities are provided primarily for their educational use... Information stored on a computer system or sent electronically over a network is the property of the individual who created it. Examination, collection, or dissemination of that information without authorization from the owner is a violation of the owner's rights to control his or her own property. Systems administrators, however, may gain access to users data or programs when it is necessary to maintain or prevent damage to systems or to ensure compliance with other University rules... Whenever a case of computer misconduct is suspected or reported, FAS Computer Services will notify the appropriate Resident Dean or University official, who in turn will determine the course of any investigation or disciplinary action. Pending the ability to contact this official, FAS Computer Services reserves the right to deny system or network access on a temporary basis to anyone who violates these rules. This includes the ability to terminate processes or connections that threaten system or network security, performance, or integrity... In addition to College rules, certain computer misconduct is prohibited under Massachusetts General Laws, c.266 subsection 33 (a) and 12 (f) and is, therefore, subject to criminal penalties. Such misconduct includes knowingly gaining unauthorized access to a computer system or data base, falsely obtaining electronic services or data without payment of required charges, and destroying of electronically processed, stored, or in–transit data. You can refer to the Harvard's computer rules and regulations through http://www.fas.harvard.edu/computing Best, J Sagisi
Francine Martindale - Week # 2
Response to Dawn Tan (Dawn Ly-Ru Tan)'s Answer to Week 2's Question: Dear Dawn, I enjoyed reading your response to the Lamberth letter, as I also believe that the argument that you were a “service provider” should be a strong defense. As for you having it “for educational purposes”, though, I’m not so sure that this will work. Because you are harboring the program on your computer using Gnutella, a global file-sharing software program, if it were primarily for educational purposes, wouldn’t you have to be able to prove that everyone else around the world who downloaded it from you was also using it for these reasons? Also, depending on the number of downloads that occurred, there may well have been a significant effect on the potential revenue that the copyright owner has lost. This is likely why the MPAA is up in arms in the first place. That said, I think the education argument is interesting, given that the alleged offence did occur via Harvard, an educational institution’s, own ISP system; ironically, this very fact could possibly be used to support your argument. Whichever defense works for you, I would agree that your last paragraph, promising to remove the material from you system at once, will be extremely helpful in appeasing the offended parties.
To Whom it may Concern I did not commit any sort of copyright infringement. The Simpsons episode was present on my hard drive as a result of time shifting (I have section during the Simpsons). The fact that the file was available for download was unknown to me. I use the Morpheus file transfer software to facilitate finding new and innovative bands and this service must have made these files available unbeknownst to me.
Response to Kristel Leow: You've provided a number of excellent reasons for changing the current copyright laws. I share many of your views, all of which you have articulated very well. I found the Radiohead CD example to be particularly interesting and persuasive, especially since the Napster court didn't seem to find Napster's evidence on increased album sales very credible. From a legal standpoint, the only problem with your letter is that you have given no reasons why you should be let off the hook for what you have done in this particular situation. Merely disagreeing with the wisdom of a law does not give you the authority to break it. And the Lecturer on Religion probably isn't the person to whom a letter of this sort should be directed anyway-- even if she agrees with everything you say, there is nothing she can do about it. The fact is, the law exists and therefore can be enforced. More importantly, there is probably some (though perhaps weak) argument that the actions in this case were fair use, even under the current law. The private viewing of the episode, at least, could be considered time-shifting and therefore fair use. It might not hurt to throw in a few reasons why your actions in this case were legal, at least in theory.
- Week # 2
Dear Ms. Lamberth, I was not aware that having a copy of this tv show available for distribution was an illegal practice. I do know that a recording for non-distributive private viewing is legal and as such i have removed the material from the files available for distribution list. I trust that this will be a satisfactory result for your interests and that that I am now in compliance. thanks Joe
Dear Lizzie, I understand your frustration and respect your justifiable fear of this great institution. I am not talking about Harvard University, that evil body, but your bastion of good, the FAS. Nowadays, everyone communicates via email; in fact, for some classes, it is impossible to participate without access to the internet. While this may be somewhat tyrannical by certain professors, it does enhance the importance of our great institution. Thus, I am glad to hear that you will follow our order with alacrity. To answer your dicta (you are in law school, no?), however, your alleged behavior is illegal, even if Gnutella or other Peer-to-Peers are not. You do not own the copyright to material such as “Sweet Seymour Skinner’s Baadassssss Song” and your transmission is an illegal distribution. Also, there is a lawsuit pending against FastTrack and the Napster preliminary injunction indicates, for all intents and purposes, that Napster did engage in infringement. Please be advised that there is no action available for violations of due process against us. Besides being eminently infallible, we are judgment-proof against our actions. As long as we speak in constitutional terms, we have the right to do whatever is necessary and proper to enforce the terms to which you agreed. We are not the government and you have no guarantee of due process with us. I would be remiss to fail to remind you that if we do indeed shut down your connection, it is because you deserved it. Believe me, it hurts us more than it hurts you to cut you off from the FAS network, but the hands of little children must sometimes be held lest they run out into the middle of the street and die. Let me also remind you that I have a PhD in religion, which places me one step closer to God. Continue your immoral copyright infringement, and I will put in a bad word. You are on notice. Cheers, Doctor Lamberth, PhD
Ms. Lambreth I am not sure how to respond to your letter. I do have a copy of the SSSBS episode on my hard drive but owning a copy of the episode is not a copyright violation. It is also true that I have file sharing technology loading on my computer. Because I do not want to jeopardize my position at this university I will leave the decision up to you as to what I can and cannot do with my computer and the files that reside on my hard drive. While I am not intimately familiar with copyright laws surrounding the act of copying a television show, I am certain that it is not illegal to record television shows for personal viewing. I did not generate any revenue by selling advertising space or products while broadcasting this epsisode to the public or to a private audience. And if I did, I would argue that I my broadcast indirectly provided additional revenue for the company that owns the rights to the Simpsons because I did not take the time to remove the commercials and could have potentially increased their audience size. I realize that my argument is weak and lacks legal prowess so I have provided a quote from the Supreme Court supporting my argument. “noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement”
My response (to Andrew Sanford): You make a good argument when you argue that the distribution of the old episodes doesn’t hurt, and may even benefit, the new prime-time episodes. However, there is also a very important syndication market for the Simpsons, and it seems that distribution of episodes for free would harm that market. If, as you argue, there is no reason to watch an episode more than once, then having episodes available for free would completely destroy the syndicated marked for the Simpsons. Once they’ve seen an episode they downloaded, they never need to watch that episode again on television. The comparison to South Park is interesting, as well. However, South Park was a realatively unknown series, and probably fairly unique in the amount of popularity that it gained by making the old episodes available. There are likely far more people currently familiar with the Simpsons than there were people familiar with South Park when they started making episodes available. So it is unlikely that distribution of old episodes would do much to increase the popularity of the Simpsons. More importantly, though, that looks like a case where the owners of the copyright chose not to enforce their copyright, not a case that would normally be considered fair use. Since the MPAA has written the letter to Harvard, it seems clear that they want to enforce their copyright. Nevertheless, you made some good arguments considering the akward position the problem put us in. I particularly liked the distinction between the mediums of television and radio, where radio is unplanned, and therefore time-shifting is far more difficult. You also made an interesting point when you noted that the television schedule would do more to damage videotape sales than making the episode available over a file sharing program.
This is my response to Nicole Christoff's letter, (reproduced below) Dear Ms. Christoff, Thank you for your letter suggesting that any uploading of the the copyrighted file was accidental, the act of a copyright infringer who accessed the file that was legitimately on your hard drive, owing to your use of the peer to peer transmission system Gnutella. While I appreciate your claim that you use Gnutella stricly to access non-copyrighted files, I think this episode suggests the danger of such systems nonetheless. Considering that you might have inadvertantly been liable for contributory copyright infringement, I will repeat my counsel to avoid such peer to peer systems until they can be securely set up to avoid transmission of any copyrighted material. Since your inadvertant facilitation of a copyright infringement could make Harvard liable for contributory infringement, notwithstanding your honorable intentions, I must ask you to refrain from using peer to peer transmission systems. Should you fail to heed my counsel, we will need to discuss termination of your network access. Yours, I. Glenn Cohen Harvard University, In-house Counsel. I received your letter dated October 2001, concerning the uploading of "Sweet Seymour Skinner's Baadassssss Song" from my computer. I am responding to defend myself against allegations of violating copyright laws. I have never been involved in soliciting the transmission of copyrighted materials. While I have used peer-2-peer technology in order to obtain uncopyrighted audio and video files from others, I have never solicited or profited from any illegal transmissions. While logged into Gnutella for legitimate purposes, it is possible that another user uploaded the Simpson's episode from my stored files. As a former writer for The Simpson's, this file was validly obtained and stored on my PC. Instead of chastising me, a legal user of Gnutella and conscientious observer of copyright laws, perhaps you should find the person who illegally uploaded this file. Yours, N.Christoff (ANSID 12237)
What’s most interesting about this response is the “ceasing all contacts with Napster and Gnutella”. As Professor Zittrain pointed out in class, it is highly likely that the only reason the MPAA became aware of the existence of the episode on the student’s computer was through the use of one of these programs to copy the episode itself. So there isn’t really evidence to suggest that anyone holds or has received the episode improperly. One is certainly allowed to make copies of television shows for personal use. So it seems that the neither the university (section 202 of the Digital Millennium Copyright Act exempts university from liability), nor the student have any reason to fear that they have broken federal law. Nevertheless, the fact that the MPAA was able to download the episode does suggest that others may also download it as well. The number of individuals that have access, through Gnutella and Napster, to the episode suggests that a) other copies, aside from the one the MPAA made, have been made and b) these copies probably cannot be defended as fair use. One should also note that it is very likely that the university will treat possible copyright violations by its students very seriously. Harvard has deep pockets and provides a lot of bandwidth to what amounts to a small town of individuals, many of whom (undergraduates) have a lot of free time. From a legal risk standpoint, Harvard’s position is potentially very grave: plaintiffs may see Harvard as complicit in thousands of copyright infractions, for which it has ample resources to pay out any judgments entered against it. Even though statutes appear to protect Harvard from liability for the breaches committed by students or staff, no statute protects Harvard from being sued at all. The law may protect Harvard, but it does not reimburse Harvard for its legal costs. Harvard, then, has to shift the risk to those who create it. By threatening students and staff with severe penalties for copyright infringement, the university hopes to limit the extent which its students and staff expose it to law suits. Or, to put it bluntly, Harvard has to make its problem a problem for its students and staff, because the actions of the students and staff, not the university itself, expose Harvard to risk. Furthermore, these actions, from Harvard’s point of view, do not have any redeeming value: Harvard could name better uses for its bandwidth than the transfer of sitcom episodes. Thus, Harvard is likely to dismiss any letter from a student or staff member asserting rights to transfer copyrighted material, using Harvard’s resources, as advocacy for wasted bandwidth and legal risk. So, I think the student was realistic here in agreeing to cease use of Napster and Gnutella, because the university, which has control of the network and has the greatest legal risk, will likely do whatever it can to stop such transfers.
I would like to state to begin with that I did download the "Simpsons" episode that you are reffering too. However, I must admit that I am quite shocked that you actually took the time to track me down. To be frank, almost every person at this school is logged on to napster. For that matter, almost every person in America is now logged on to napster. If you were to take away my privilages, you should take away every persons privliages. I am just shocked! I seriously can't believe that the network took the time to actually see where the download took place and contact the school. I could have recorded the episode easily on my VHS player and no one would have every said anything. Really, what's the big deal? If I am allowed to copy TV shows and movies on my VHS player in my room then I should be able to download them off of the internet. I realize the legal problems Harvard could possibly face if I attempted to do this again, espically since you have sent me this letter, so I will refrain from using the internet to download any more movies or songs. However, I must warn the school, that if companies start to trace all downloads and contact the servers they took place on, then this school is going to be in for a flurry of mail problems. I mean, REALLY, who cares? Please don't let this affect my reputation at this school though.
Dear Ms. Lamberth, I received your letter of October 17, 2001 alleging an episode of “The Simpsons” was transmitted from my computer. While I indeed have a copy of “Sweet Seymour Skinner’s Baadassssss Song” on my computer, I do not believe I am guilty of a copyright violation. There are several reasons for this, a few of which I will briefly explain. First, I did not download this episode myself. As I do not have a VCR, I instead record TV shows that I am unable to watch at the time they are being aired directly onto my computer. The U.S. Supreme Court found that a private individual making a copy of a broadcast TV program for the simple purpose of postponing viewing until a more convenient time is permissible. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). In other words, it does not violate the Copyright Act. Second, I did not transmit the file containing the recording of “The Simpsons” to anyone. While I do use Gnutella for the purpose of occasionally obtaining non-copyrighted songs, I did not initiate a transfer of this file to anyone and was not aware that it was accessible for download on my computer. I have checked the Gnutella settings to ensure that others will not have access to any copyrighted material present on my computer. I am also glad to inform you that I will promptly delete the episode from my computer as soon as I have enjoyed watching it this weekend. Third, as is clear from the preceding paragraph, I have not accrued any financial benefit from the alleged transmission. I was not even aware that anyone had access to, let alone downloaded the file from my computer. And the sole reason for recording the episode was that I could not watch it when it was originally aired. The most reasonable characterization of my recording this episode for the purpose of privately viewing it, is that it constitutes fair use. Not only did I not benefit financially from my actions; my actions did in no way harm the owners of the work. I merely watched it at a more convenient time. Furthermore, whoever allegedly downloaded the file from my computer was only able to watch what was broadcast freely in the first place. Without a violation of the Copyright Act, there is also no violation of FAS policy. I trust that this letter has taken care of any concerns you might have had regarding the alleged violation. Please forward a copy of my letter to the appropriate person with the Motion Picture Association, and feel free to e-mail me should you have any further questions. Sincerely, CN
Critique of Eva Holtz by Randy Xu, Eva’s response was typical of many student’s. Her primary defense was to draw an analogy between private VHS recordings and file sharing over the Internet. The Winthrop student is described as partaking in a process that is “similar to legally time-shifting a typical TV broadcast”. While there is certainly an element of time-shifting involved, it would be wrong to draw an analogy between VHS and a video file distributed through the Internet, however philosophically consistent it may be. Copyright law is rooted in social context and indeed has changed over the years as technologies have developed. Eva implicitly refers to the Sony vs. Universal (1984) which set legal precedent for sanctioning the use of VCRs in American homes. But the ruling clearly states that the case only “concerned the private, home use of VTR's for recording programs broadcast on the public airwaves”. It continued to explicitly state that “no issue concerning the transfer of tapes to other persons.” On the Internet, information is both broadcast and a non-rival good. That is, it no longer is private but instead is generally accessible to everyone on the Internet (there was no mention of password protection in this case). Information is non-rival in the sense that my consumption of that particular Simpsons episode does not infringe (no pun intended) on your ability to view it. Information can be broadcast and copied on a massive scale, rendering the “VCR defense” moot in most courts of law. As Professor Zittrain stated, if Betamax devices could be hooked up into a Napster or Gnutella-like network, the issue would have been an even more contentious one. Eva is also wrong to justify the sharing with the concept “noncommercial use”. Indeed, noncommercial use is exactly what is prompting copyright concerns. Why should I pay for a product if someone is giving it away, ostensibly for free. She stated that season five is not available on tape or DVD (which is true), but did not know that “'Sweet Seymour Skinners Badass Song” in available on another collection. In fact, it is none other than “The Simpson’s - Greatest Hits”. I hope I am not overly critical of Eva’s response. I am certain my defense was flawed in many ways, but I did take into account all of the aforementioned concerns in drafting up my response.
yes
The circumvention of the dvd 1 use technology is obviously a crime. if this chemical has no other legitamate uses or has limited use, then it violates the DMCA. it was marketed on the web for this sole purpose and thus is in violation of the DMCA and the ISP should block these sites with the recipe that they are made aware of. this si a simple open and shut example of how the DMCA would help prevent piracy efforts and protect the property rights of IP owners.
I don't believe the chemical itself is prohibited, but I do think distribution of the recipe is and use of it certainly is. I think the DMCA is fundamentally wrong for several reasons: 1) Free Speech -- distribution of a method for circumvention should be protected by our first amendment rights. Don't we allow the publishing of bomb-making books, etc? 2) Circumvention seems to be within fair use rights to me. If I buy a DVD, what I do with that DVD (other than copy and distribution) should be up to me. If I want to circumvent encryption, that should be up to me. This is similar to my problem with laws preventing cable descramblers. If you run the cable into my house, what I do with it on my end should be up to me. I realize this may is a controversial point, but it is an important one to me. 3) Reverse engineering has always been an important method of innovation.
I am walking down the hall and I see the man. I say "I think that people should be paid for their work. But the idea of a media monopoly is simply too much. Look what happened to the Countries Health after the medical profession, the AMA health monopoly. Would you want to wait for hours to hear a CD? And God knows what you would have to pay for it. I suggest you refer this information back to committee." Maxwell Cotter
This is a post-crank response to Mike Hall. Our answers are fairly similar, so I don't have much to offer in the way of rebuttal. It occurs to me, though, that were I representing the maker of the chemical, I'd offer the following advice: 1. Describe some alternative purpose for the chemical. Does it serve some useful purpose, say, if applied to a DVD that was not treated with the decay-producing solution? Might it preserve untreated DVDs, make them less succeptible to scratches, etc.? Does it serve any purpose for non-DVD products? 2. Don't market the chemical as a way around the decay-producing solution. Word-of-mouth will take care of that use. Find some other marketing hook. I would also want to look into the transaction by which the treated DVDs are being "sold" to the public. It had better make clear that the DVD will pull a Mission Impossible after the first playing. Otherwise, there might be the teeny-tiny matters of product warranties, the First Sale Doctrine, et al. Finally, good point, Mike, on the human action element under Reimerdes. The formula would appear to be 100% speech under this analysis.
RESPONSE: As Mr. Da Silva grants, applying the chemical may count as “circumvention” under the DMCA. Whether the “reasonable defense” he suggests is believable is questionable. Mr. Da Silva suggests that the degeneration mechanism is not a protection of access but a destruction of the work itself. This distinction seems unconvincing for two reasons. First, it is not clear that the work does not continue to exist on the disc despite the inability of a user to access it after the degeneration. The work may exist in a digital form that might be reteived by some other technical means, or might simply exist in a digital form that may never be played, but still remains on the disc. Second, even if the work can be considered to no longer exist, the distinction seems more semantics than a meaningful distinction. The degeneration is clearly intended to prevent the user from accessing the work more than once. Whether this happens through a termination or the work’s existence or through the creation of a barrier between the user and the still existing work seems to be beside the point, and a faulty distinction that a court would hopefully see through. The “primary purpose” defense, however, is more believable if the chemical really has a true, commercial use other than preventing CD degeneration. In addition, the free speech defense of the recipe is also reasonable, though questionable considering, as Mr. Da Silva suggests, the Reimerdes decision.
As I was walking down the hall with the Senator, I would not recommend that he vote on the bill, at this time. First of all, it is incredibly over-reaching. No copyright measure has really advocated such a deep and irreversable committment by the US government onto the business sector to incorporate a "certified" security measure in practically EVERY electronic device produced. The cost alone in implementing this is unfathonable. At any rate, the bill will most definately put non-violators at risk just because of the bill's broad language. For example, the SSSCA says that it is illegal to create, sell or distribute "any interactive digital device that does not include and utilize certified security technologies" that are approved by the U.S. Commerce Department. An interactive digital device is defined as any hardware or software capable of "storing, retrieving, processing, performing, transmitting, receiving or copying information in digital form." Does this mean if I copy of file onto a floppy disk and give it to my brother without putting the proper "certified" security device in place I am a potential felon? I think it could, and would mean that. Another point is that digital copyright laws have really not been well defined in the context of the Constitution. There has not been, to my knowledge, a real formal intellectual debate on what is too far and what is proper in this day and age. To my knowledge, consumers have rights too. And consumers are allowed to have some control over the copyrighted material. In this Bill, nothing is even mentioned about consumer rights. This brings me to another point I would have to share with the senator. The year that has been given to the industry to produce the security measures is exempt from sunshine laws, yet it is really overseen by the Dept. of Commerce. So in essence the end result is that it is a public law that is being produced. Why hide it? Why not allow access? Additionally, the law gives no consumer advocate groups ANY access to the developmemt of the law. This is wrong and unjustified. With opponents, the industry is free to spend the year developing a law tailor-made for their intrests. And though the Dept. of Commerce is suppossed to offer a check and balance by having a final say-so of the measure, it is really unlikely that they will fight it. The pure power the industy is going to put behind getting their version passed is very formidable for any agency. So, Senator, do not vote "ya" on this bill today. It is to loose and unviable. It will most likely get struck down on a plethora of Constitutional grounds anyway so a better, more balanced bill should be produced that at LEAST gives the consumer more rights over the "property."
Re: Carolina Gonzalez's letter in response to Ms. Lambert's cease and desist notice. Carolina, your letter appears to be very prudent and well written to avoid further trouble with the University. It should at least reassure Harvard that you intend to cooperate with its policy. However, by admitting your liability from the outset, you will not be able to contest it later. You will have to walk on eggshells to avoid violating the university's policy in the future; you won't be able to download anything that is not obviously free of copyright protections. If you are like most college students, this will mean a significant change in your Internet usage. Having conceded your guilt, you've given Harvard the right to claim that you've had fair warning and a chance to conform your behavior to fit its policies. That said, I think your response reflects how most students would react to a letter from Harvard faculty warning them to stop downloading copyrighted material. My own written response challenged Lambert's allegation of copyright violation, but in reality, faced with school disciplinary action, revocation of network privileges, and possible prosecution, I would almost certainly cave too. In this game, Harvard and the Motion Picture Association of America hold all the cards.
Is the chemical itself prohibited by the DMCA? Is the recipe? The use of such chemical to deactivate the coating on the DVDs almost certainly violates section 1201(a) of DMCA ¡V No person shall circumvent a technological measure that effectively controls access to a work protected ¡V base on the following two reasons. First, it is clear that the view-once-only feature of the DVDs created by the movie industry and the technology industry is an effective technological measure to control access to a copyrighted work. Second, it is reasonable to assume from the question that the sole purpose of the chemical is to remove the view-once-only feature of the DVDs. As a result, it is very likely that the DMCA will prohibit the widespread use of both the chemicals and the recipes in the public domain. Under section 1203(b), the court is empowered to ¡§grant temporary and permanent injunctions on such terms as it deems reasonable to prevent or restrain a violation,¡¨ and impound the product at any time while an action is pending. Lastly, there is very little room for parties to legally gain use of this particular chemical under the exemptions enumerated under the section 1201. First, it is hard to justify why nonprofit libraries, archives, and educational institutes has to circumvent the technology, as these DVDs are widely available at a reasonable price. Second, this chemical or recipe cannot be obtained for the use of encryption research, because this hacking technology does not belonged to the term ¡¥encryption technology¡¦ which was defined as the scrambling and descrambling of information using mathematical formulas or algorithms under section 1201(g)(1)(B). The exceptions regarding minors and the protection of personally identifying information also have no relevance in this case. Therefore, the chances are very high that the chemical itself and the recipe are prohibited by the DMCA.
There are two parts of the DMCA that may be applicable to this chemical and recipe. First is the prohibition on circumventing a “technological measure that effectively controls access to a work.” Second is the prohibition on circumventing “a technological measure that effectively protects a right of a copyright owner under this title.” I don’t think there is much question that at least the chemical “circurmvents” some technological measure. The question then is whether the technological measure it circumvents falls into one of the two categories. For a measure to fit the first category: “the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” The decaying technology does not neatly fit in this category. The measure allows initial access to the work without any special “process or treatment.” And then it never allows access ever again. Thus it does not fit the mold of a device that restricts access to users who have the right information. Information/process/password is not the border between access and no-access, rather it is number of uses. For a measure to fit the second category, the measure “in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title”. This definition fits a little better because among the rights of a copyright owner are the right to distribute the work and the right to make derivative works. Potentially, this measure affects distribution in that it allows the copyright owner to provide the work to the public in an affordable manner. If this technology is circumvented, then the DVDs will no longer be distributable in this way. Also if this particular decaying form of DVD is considered a “derivative work”, circumvention might be consider to “limit” this right as well. However, by invoking the rest of Copyright Law, this category cannot take the rights without their limitation/exceptions. Two relevant ones are: the first-sale doctrine and the work/copy distinction. Under the first sale doctrine, once a copy is sold to someone, they can then resell it without infringing the copyright owner’s distribution rights. Relatedly, the work/copy distinction establishes that while the copyright owner has preeminent rights to control the “work” of art itself, the owner of the copy has preeminent rights to control the copy. With a few exceptions, the copy owner can destroy the work or mutilate it (so long as he/she does not try to resell it as his/her own work in mutilated form). Thus, I think that there are strong copyright law reasons why the chemical, let alone the recipe, improperly affects any of the copyright owners rights. Finally, as for the distinction between the chemical and the recipe, the DMCA does not punish either “thing” but rather the person who purveys them. The relevant language is: those who “manufacture, import, offer to the public, provide, or otherwise traffic” in prohibited goods/technologies. This would seem to include both the chemical itself (manufacture) and the recipe (traffic). So I think both are prohibited or both not. (only possible exception: free speech defense).
The digital millenium copyright act could indeed outlaw such a chemical. As i see it, the chemical is a means of circumventing an anti-piracy measure, much like the anti-piracy measures built into software. Thus ISP's that engage in the forwarding or publishing of the chemical's compositions would, although probably not being initially liable, have to take the recipe off the their sites if warned by proper authorities (who that is I am not sure about--- would the movie industry need a court order?). In my view, whoever is selling the chemical is certainly liable, and would have to stop immediatly, although I again am not sure about enforcement.
If it doesn't have an alternative commercially purpose, the chemical itself is prohibited by the DMCA. According to Title 17, Section 1202, 2, "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." Thus, the courts would have to determine if the chemical has a real significance, other than protecting one-play DVDs. I don't think that the recipe should prohibited, because it should be protected under our First Amendment right of free speech. There is plenty of information on the internet on how to make bombs, how to make illegal drugs, and perpetrate numerous other criminal activities. Although the information is available, the responsibility is placed on me, the individual, to use the information with discretion and abide the laws of the land. Furthermore, if the recipe is difficult to make, it seems like this technology will float in the circles of the elite, and the majority of the consumers will abide by the one-view policy of the DVD. However, the lawyers might classify the recipe as technology "offer[ed] to the public" to circumvent a technological measure used to protect copyright. The court would have to determine whether a recipe on the internet is actually a technology offered to the public. I agree with most parts of the DMCA. Although it is not too clearly written, it is a necessary measure to protect intellectual property. Most people have a moral conscience that prevents them from stealing physical property, but these morals are conveniently diluted when the possession stolen is intellectual property.
The Chemical Itself Does the DMCA outlaw a chemical that would prevent a one-time-only CD or DVD from degrading so that the disc could be used over and over again? After looking through 17 USC 1201 I can say that there is probably a good faith argument on either side, however, I think that even under the broad language of the statute it probably does outlaw such a chemical outright. Under 17 USC 1201(a)(2) it would be illegal to “manufacture, import, offer to the public … provide … or otherwise traffic” in the chemical since it is a “product” that only seems to be marketed as a way of preventing a copyright protection. (Note here that I am assuming that there would be some sort of shrink-wrap liscense on the disc saying you were only purchasing the liscense to a single viewing, etc.) Yet the chemical would not be outlawed per se and its possession would not be illegal under the DCMA. I should note that one thing I am assuming here is that this chemical has no other common or commercially viable use. Also, there may be some trouble under 17 USC 1201(a)(3)(B) whereas that section seems to make a requirement that the infringing product actively circumvent some protective measure that guards access to the work whereas this chemical simply prevents the degredation of the disc. Thus the chemical does not actively work around some sort of “lock” it merely changes the physical structure of the coating. The Recipe Again, along the lines of the analysis above, I believe it would be illegal to “manufacture, import, offer to the public … provide … or otherwise traffic” in the recipe, but the recipe itself would not be illegal, kind of in the same way a narcotic’s chemical formula is not illegal. However, posting the recipe’s formula on a web site may be seen as a violation of 17 USC 1201(b) as it is really a “part” of the “technology” or “product”. This may depend on exactly how hard the chemical is to make, if there is no way it can be made in the home or even in a moderate lab, then maybe posting this recipe would not be a violation of the DCMA. There are First Amendment issues here, and in reality they may trump the DCMA on the dissemination of this technology. Another argument that complicates the analysis is the exemptions contained in the DCMA that may give the chemical some fair uses and then throw the whole argument into nothing more than a case by case determination by the court.
We can see this issue from two very different points of view. The first as seen on the Sony case and the VHS problem. Where if assumed that there was a legal use, or a special purpose for recording a program, event, or anything else, so there wouldn’t be any law infringement , should be correct . On the other hand if the chemical is used in a way to restore the DVD purpose, you are violating the law. According to the Digital Millennium Copyright Act (DMCA) the use of this chemical solvent is prohibited (chapter 12th – Copyright Protection and Management Systems, section 1201). Where it is stated that “ no person shall manufacture, import , offer to the public , provide or otherwise traffic in any technology , product , service ,device , component…” . DVD’s are a technological component used for recording high quality films y distinct formats. The above argument states that you are automatically committing an infringement to the law are providing a product that produces an alteration to a technological component. In the other hand the recipe it should be considered also a crime, because it’s the famous “know-how” that makes possible the traffic of the DVDs. The only ones that might be able to use this chemical should be the industry which controls the DVD usage. The way things are done can lead us to know what we must do in order to achieve our goal. That I s why the recipe is also felony. In conclusion, both the chemical as well as the recipe should be considered as a crime. Nobody should have access to this chemical or recipe, so that there would not be any possibility to make the contravention with the law. There must be a different ways like making a special format or other way so you could record a DVD, but there must exist a barrier ,so the government can prevent the industry from copyright law violation and DMCA infringement .
Response to David Alexander: Dear David, I agree with you when you say "This point is extrapolating from the law and entering metaphysics, which suggests to me that the law is vague on the issue." But, you did seem to side with the fact that the coating chemical is prohibited by the DMCA. I however responded in the other direction and said that the recioe itself is not prohibited, but the use of it is. There is an interesting point that I thought about while reading you feedback; the coating chemical does not have a patent or a copyright...so where does it stand in the DMCA? David Alexander's Feeed back: While the mechanism the manufacturers have used to restrict the use of their DVDs to "single play" is certainly a technological measure that "effectively controls access" to the work as this is defined in Sec. 1201, it is unclear that this mechanism is being used to protect the copyright on the work; rather it seems that it is being used to enforce a license agreement between the manufacturer and the consumer. The DMCA is still applicable as it does not limit the technology mechanisms it protects to just those protecting copyright. Thus the chemical is prohibited by the DMCA; likewise the recipe for the chemical. The mechanism -- a chemical film on the DVD surface which degrades after use -- serves the purpose of limiting the content to a single viewing. By applying a chemical to the DVD to remove the film, a user is able to circumvent this protection, thus enabling him to view the film repeated times. This use of the DVD is not infringing under Title 17, as it does not constitute reproduction, derivation, distribution, or public display of the DVD content. One DVD existed before; still only one exists. It might be contended that the number of viewings of the film has been multiplied. Clearly though the act of viewing the film is not the subject of the manufacturer's copyright. Copyright law does not entitle the manufacturer to limit the number of viewings of the film; this restriction is established through a contract the buyer agrees to. The violation embodied in using the chemical, though it does not constitute copyright infringement, still is prohibited under DMCA Sec. 1201(a), "No person shall circumvent a technological measure that effectively controls access to a work protected under this title..." It is ambiguous here whether the act intends for "technological measures" to be limited to those defending copyright. The intent, indicated in Sec. 104(a), Statement of Congressional Policy and Objective, seems to be to prohibit circumvention of access control mechanisms that protect copyright holders, but the language is broad and seems again to give its blessing to anti-circumvention mechanisms for ANY purpose. Thus I believe that the DMCA as written does prohibit the circumvention chemical. The distribution of the recipe is, less obviously, also prohibited. While the recipe cannot itself be directly used to remove the chemical film, it is "primarily designed or produced for the purpose of circumventing" the protection. While the recipe's direct purpose is not circumvention, its indirect purpose IS -- and the only importance of the recipe lies in the indirect purpose. This point is extrapolating from the law and entering metaphysics, which suggests to me that the law is vague on the issue.
As John Perry Barlow succinctly stated in “The Economy of Ideas,” “the more security you hide your goods behind, the more likely you are to turn your sanctuary into a target.” The self-eroding DVD offered by the movie technology, with the aid of the technology industry, appears to be such a target. As I will argue, though the chemical used to preserve the DVD is arguably prohibited by the DMCA, which provides civil and criminal penalties for those who circumvent technological protection measures and, in some cases, for those who simply make available technologies that can be used to circumvent the copyrighted work, the DMCA can likewise be interpreted to allow such chemical to both be manufactured and distributed. Importantly, the DMCA’s proscription states that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title” (emphasis added). If someone is able to circumvent the technology used to protect (as the person who created the chemical seems to have done), isn’t this an ineffective technology to begin with??? Coating the DVDs, at first glance, appears to effectively turn a former durable good into an eroding, nondurable product. Making a product available for momentary exposure without giving the actual copy to the consumer, as the MPAA is attempting to do, is akin to selling a food product but not the actual recipe. In this way, a consumer who buys the DVD and attempts to preserve its data for repeat viewing is infringing on the copyright when they see it more than one time. However, what if the consumer were to have a program on their computer that simultaneously copied the DVD’s data on the hard drive as it was being viewed? In this case, the coating would be of questionable effectiveness. Section 1201 of the DMCA divides technological measures into two categories: (1) measures that prevent unauthorized access to a copyrighted work, and (2) measures that prevent unauthorized copying of the copyrighted work. Thus, making or selling devices or services that are used to circumvent either category of technological measure is prohibited in certain circumstances; as to the act of circumvention itself, the provision prohibits circumventing in the first category but not the second. The distinction exists to ensure that the public will have the continued ability to make fair use of copyrighted works. In this fashion, the degrading coating on the DVD seems at once to be an ineffective AND, at the same time, overly draconian, way of ensuring copyright protection for the MPAA. Questions surrounding the creation and distribution of the chemical preservant include, whether by distribution of the chemical or of its recipe, include: (1) what are we specifically looking to protect? (2) can the industry survive without having to crack down on the individuals who create and distribute this chemical, and if so, should we crack down on them anyway? (for instance, consider that the DVD contains a digital format of a weekly news magazine – there are few folks who will want to preserve this, and thus the industry would not need such protection); (3) what distinction, if any, should be drawn between selling the chemical, as opposed to selling the chemical’s recipe, given that the recipe appears difficult to manufacture? and (4) is DVD-protection overwrite the sole purpose of the chemical, or does the chemical have another use?
This is in response to Anuja Doshi's answer submitted for Week 3: I think that Anuja is right on target with her interpretation of § 1201(a)(2)(B): determining whether the chemical is in violation with the DMCA necessitates an inquiry into whether the chemical has an alternate commercial purpose or use that is of any real significance. I would add that one way of determining whether any such alternate commercial use exists is to look at how the chemical is itself marketed by its distributors; for instance, while the chemists who created the recipe may tout their product as one which allows a DVD owner to repeat-view their DVD, perhaps they are also selling it to members of the scientific community for other purposes. The latter possibility itself suggests another avenue a court could consider when determining what the primary purpose of the chemical is: what other chemists see as a possible use for the chemical, if any, besides being able to preserve the coating on a “protected” DVD. Before § 1201(a)(2)(B) even kicks in, however, I would suggest looking at § 1201(a)(1)(A). Whether an effective technological measure is in place so as to make the chemical preservant subject to the DMCA is of primary importance when applying the DMCA. Indeed, whether or not the chemical is “primarily designed or produced for the purpose of circumventing a technological measure…”, the first question to ask is whether the MPAA has set up an effective technological measure in the first instance. As class discussion seemed to indicate (for example, the scribe admitting that he is able to override a CD burner like Professor Zittrain’s to allow copying from a copy) I do agree with Anuja that the recipe is itself protected under the First Amendment (and I liked her analogy to bomb-making information). While the DMCA’s language suggests that even distributing information about how to make the chemical may be a violation of the statute, injunctions against such actions would probably constitute a prior restraint on speech in violation of the First Amendment. I’m not quite sure what to make of the fact that the recipe is difficult to make, except that, as Anuja seems to imply, the difficulty in manufacturing the chemical would make the distribution of the recipe harmless to the DVD-sellers except when in the hands of a select few. Finally, I think that there is no question that distribution of the recipe via the internet qualifies as a “technology offered to the public.” The most pressing questions, whether the chemical (and hence its recipe blueprint) is indeed primarily designed to circumvent the effective (another question of interpretation) technology offered by the DVD-sellers are the keys to determining whether the DMCA applies.
You bring up a very good point about the fact that the SSSCA would only apply within the US. Obviously, the internet is a multi-national entity, and so in some ways this law would potentially be toothless, since the easiest way to circumvent it would be to move a company’s headquarters or server or office to another country. On the other hand, because the internet is so fluid and so much of its traffic originates in or at least passes through the United States, our courts could easily find the “minimum contacts” necessary for jurisdiction if they wanted to. In that sense, American regulations such as the SSSCA might well be considered to legislate for the world at large. Certainly there might be philosophical problems with that practice, but it is still conceivable that we’d be willing to do that sort of thing given how few nations are likely to butt heads with us over it. In any event, my guess is also that our laws may well provide the template for the next round of world trade treaties relating to internet commerce, so I’m not sure if we’d stand alone in this sense for very long. I think the fact that America is such an integral legal player and major segment of the internet’s “market share,” dilutes the point you made about creating a competitive disadvantage for American manufacturers. The fact of the matter is, anyone that wanted to play ball in the US tech market would presumably have to tow the line. Plus, I think that the era of “trusted privication” hints at the fact that those seeking to protect copyrights and those creating technologies that handle copyright-able products are increasingly becoming the same people. I think in some ways the SSSCA seeks to project onto the internet the type of industrial integration that exists within the audio industry as you describe it. Although computers are more format-diverse than audio equipment, that need not be intrinsically so. The Sonys of the world made conscious choices to focus on certain media, in part because they realized that consumers like a degree of consistency in format. While computer users (particularly, from the sounds of it, those at MIT) may have more diverse desires in OS’s, BIOS architecture, and the like, it is not inconceivable that the average home or corporate user can’t be just as easily conditioned to want computer technology to be as predictable as an audio CD. The SSSCA, therefore, seems to be more about circling the wagons amongst the major players in the tech industry and building a large wall around information that can’t be surmounted by various home-grown rogue entrepreneurs, hackers, or innovators (these terms probably have different applications depending on who you talk to). And that is what bothers me most about the SSSCA- its anti-trust concerns. A related question, of course, is public domain and fair use, which you rightly bring up. In some ways, though, this poses a traditional American trade-off: corporate growth and moneymaking versus cultural and informational democracy
I could see how confusion would arise over this issue of whether or not the chemical, to preserve the temporary DVDs, would be legal or not. However under the provisions of the DMCA, or the guidelines of Title 17, Chapter 12, I think the chemical would be illegal and would be prohibited. Title 17 says that the manufacture of a product for the circumvention of a technological measure that controls access to the copyroghted work is prohibited. And this is exactly what the chemical would be doing. However it is unclear to me which is prohibited, the actual formulation of the chemical or its didtribution. I believe the selling of the recipe or the actual chemical is what is prohibited. The recipe itself, meaning the ingredients on a sheet of paper, fails to be against the DMCA, because that was an invention which someone is perfectly entitled to devising. However the DMCA is mainly concerned with the distibution of it.
You bring up some interesting points. I am willing to concede your point that subsection (a) of 1201 is not applicable to either the recipe or chemical. However, I will only partially agree with your claim that subsection (b) does not prohibit these. For convenience, I’ll repeat the relevant clauses from subsection (b). No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that . . . 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. . . <or that> 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 . . . <that> 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. As I see it, there are only two instances in which the chemical/recipe would not be prohibited by the DMCA. First, if the chemical has some other “commercially significant purpose” (e.g. cures cancer) and is not marketed for use in circumventing the DVD’s copyright protection measures. The other instance is if the producer(s) of the DVD somehow made a huge blunder in enumerating the terms of the license agreement between them and the consumers who purchase the DVD. It is critical (and due diligence dictates) that this new form of DVD come with a stipulation that consumers are only allowed to play it once. If the DVD producers blindly rely on the chemical to protect their interests and the resulting shoddily written license leaves the loophole that the DVD may be played as many times as the consumer wishes, the chemical and recipe are legal. It is in this case and only in this case that the chemical does not serve to “’limit the exercise of a right of a copyright owner’ by a non-owner” because the licensing agreement has not limited the intended use of the DVD to “one time only.” Response to the following: I do not believe that use or distribution of either the chemical or recipe is prohibited under the DMCA. At first, this case may seem a lot like Universal City Studios v. Eric Corley and 2600, which dealt with CSS, a method of encrypting DVDs. The 2nd Circuit Court affirmed an injunction based on the DMCA against Eric Corley, operator of 2600 Magazine, who posted the code to DeCSS, a utility used to unscramble the contents of a CSS-encoded DVD. In this case, the portion of the DMCA that was referenced was section 1201, (a)(2)(A), “No person shall manufacture...in any technology...that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.” However, (a)(3)(b) defines technology as “effectively controlling access” if it “requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” This definition applied to DeCSS because, in order to view a CSS-encoded DVD, the DVD player must use a piece of “information,” namely the encryption keys, that it knows only because it manufacturer has licensed the right to use them from the DVDCAA. This definition does not apply to the coating, however, because the DVD player does not need to do anything special to access the DVD. It merely treats the DVD as it would any other DVD, and it will either gain access (the first time the DVD is used) or it will not (subsequent occasions. Thus, as defined in (a)(3)(b), the coating does not effectively control access, so neither the chemical, nor its recipe, are covered under subsection (a) of section 1201 of the DMCA. Subsection (b) of section 1201 could also seemingly be applied to this technology. However, I believe that it does not. This subsection deals deal with technology that “prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.” This wording indicates that the subsection aims not to protect the copyright owner’s ability to exercise his or her exclusive rights (ie by producing derivative works, etc), but to prevent non-copyright owners from exercising these rights. However, one who uses the chemical in question to deactivate the coating is definitely not reproducing the copyrighted work, preparing a derivative work, or distributing copies of the derivative work. He or she may or may not be performing or displaying the work publicly, but this does not depend on the use of the coating. Thus the coating does not “limit the exercise of a right of a copyright owner” by a non-owner, so does not fall under the jurisdiction of this subsection of the DMCA. These two subsections are the main subsections of the DMCA dealing with preventing access to copyrighted works. However, the DVD-coating does not seem to fall under the jurisdiction of either one, so neither the chemical nor the recipe are prohibited by the DMCA.
Response to Rebecca_Hazard: The Chemical I would agree that the definition of the chemical in question as "technological" as intended by the DMCA is ambiguous; however, certainly the word "technology" applies to non-computer, non-electronic advances as well. I would guess that it would not be difficult for the MPAA to hire chemical engineering experts who would testify that the chemical is, in fact, a technology. With regards to the argument that the chemical could possibly be proven to have other, non-infringing uses, and, indeed, possibly have been designed for these other uses, I would argue that the other, non-copyright-related uses would protect the chemical under Title 17 (the copyright laws), but not necessarily under the DMCA because, according to section 1201, the chemical would be a violation if it "is marketed ... with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title." This implies that if the chemical is useful elsewhere (for example, as a golf cart fuel) and not explicitly sold for the purpose of circumventing copyright protection, it would be legal, but if it were marketed or sold with any mention of its potential uses to overcome DVD protection, it would be a violation of the law. The Recipe: It is an excellent point that the recipe would likely not be deemed to be a violation under the DMCA because, being simply a collection of words, it is protected under the First Amendment.
This is a response to nudesai's answer: First off, I do not agree with the argument that you present for the defense. You base the argument on the Sony case, arguing that it is illogical to ban a chemical by following the reasoning of the Supreme Court, who found the same for VCR's, because people have a right to own VCRs, and it is only illegal to tape the shows for commercial benefit. However, this is not really the case. The Supreme Court, however, found that the sale of VCR's is not to be prohibited because the plaintiff could not prove that VCR's were used primarily for copyright infringement. Althought it may be true that people have a right to own a VCR, it is definitely not true that people have an intrinsic right to be able to sell VCRs, if they are found to be in violation of copyright law. I argue, though, that this argument does not really matter because the DVD-coating does not effectively control access. Without getting too detailed, "effectively controlling access" seems to entail a two-sided bargain: the person (or machien) who wants to access a work must present something to the work itself to prove it is allowed to see it (for example, the CSS key). However, in this situation, it is a completely one-sided arrangement. The machine simply tries to access the DVD, and either can or cannot, regardless of how it tries to gain access.
The degenerative DVD coating is a technological measure that enables a copyright holder to compel a customer to pay for each viewing of a movie on a DVD [Title 17 Sec. 1201 (b)(2)(B)]. It is prohibited for a person to manufacture or distribute the chemical provided that the chemical is primarily produced to disable the degenerative DVD coating, has limited commercial uses besides disabling the degenerative DVD coating, or is marketed for use in disabling the degenerative DVD coating [Title 17 Sec. 1201 (b)(1)]. It is not explicitly indicated by the description of the scenario whether any of the conditions which would imply prohibition are satisfied. However, it is implied that the chemical is primarily produced to circumvent the degenerative DVD coating. Assuming one of the conditions is satisfied, it is prohibited to manufacture or distribute the chemical. Because the DMCA does not prohibit possession, the chemical itself is not prohibited [Title 17 Sec. 1201 (b)(1)]. Similarly, possession of the recipe is not prohibited by the DMCA. If it is prohibited to manufacture or distribute the chemical, then it would also be prohibited to manufacture or distribute the recipe because the recipe's purpose is to enable production of the chemical which is used to disable the degenerative DVD coating. However, even if it is prohibited to manufacture or distribute the chemical, distribution of the recipe may be protected as free speech by the 1st Amendment.
I am walking down the hall and I see the man. I say "I think that people should be paid for their work. But the idea of a media monopoly is simply too much. Look what happened to the medical profession after the health monopoly. Would you want to wait hours to hear a CD? And God knows what it would cost. I suggest you refer this information back to committee." Maxwell Cotter
Rotisserie Question, February 18, 2002 This Answer Written by Pius Uzamere The movie industry and the technology industry have collaborated to create a DVD that is unusable after being played once. These DVDs go on sale for 2 dollars each. Oversimplified, the way the technology works is that the DVDs have a coating on them that degenerates as the disc is viewed for the first time (rendering the disc inoperable). Suppose somebody starts selling a chemical that, when brushed on the disc, keeps it from decaying and then further suppose that later on someone gives you the recipe for the chemical. The chemical is difficult to make but the recipe starts making the rounds on the Internet. Is the chemical itself prohibited by the DMCA? Is the recipe? Chances are very high that the chemical described above (and its recipe) would be prohibited by the DMCA. The statute regarding this is just about as clear as it gets. Section 1201, Subsection (b) has a few notably explicit clause on this matter. No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that . . . 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. . . <or that> 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 . . . <that> 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. The statute relies heavily upon the phrases "circumvent protection afforded by a technological measure" and "effectively protects a right of a copyright owner under this title" quite a bit, but later defines them clearly in (2) of the same subsection. "To `circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure <and> a technological measure `effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title." As I see it, there are only two instances in which the chemical/recipe would not be prohibited by the DMCA. First, if the chemical has some other "commercially significant purpose" (e.g. cures cancer) and is not marketed for use in circumventing the DVD's copyright protection measures. The other instance is if the producer(s) of the DVD somehow made a huge blunder in enumerating the terms of the license agreement between them and the consumers who purchase the DVD. If it is assumed that the chemical will protect their interests and the shoddily written license leaves the loophole that the DVD may be played as many times as the consumer wishes, the chemical and recipe are legal.
Dr. Courtney Bickel Lamberth Allston Burr Senior Tutor John Winthrop House Harvard University Cambridge, MA 02138 Dear Dr. Lamberth: I am in receipt of your cease and desist letter dated October 17, 2001, regarding the issue of alleged copyright infringements through file sharing activities. First, it is my understanding that Harvard University is not liable for any such infringements by any of its users, as protected under distinct ISP provisions of the Digital Millenium Copyright Act. Moreover, I do not believe that I violated any copyright laws. Your log records are correct: I did download an episode of "The Simpsons" strictly for my personal viewing. It is also my understanding that, in the absence of intentions to profit or control, that my downloading the material was not illegal. I did a bit of initial research into the matter and noted that the 1983 Supreme Court ruling in Sony Corp et al. v. Universal Studios "concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement. It emphasized the fact that the material was broadcast for to the public at large, the noncommercial character of the use , and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, and interest that 'is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves.' " Dr. Laberth, I acknowledge that such areas of the law are still evolving. However, I want to assure you that I have no intent or interest in violating any copyright law. I also acknowledge the usage policy outlined by FAS; again, I do not believe I was in violation of any law or was active in any illegal conduct that would constitute revocation of my access . Please let me know what, if any, next steps should be taken to resolve this matter. Respectfully Yours, Corrine A. Vitolo
In this example the movie industry is trying to regain control of its copyrighted material by putting its faith in a “trusted system”—a DVD that degenerates after one use. The DMCA prohibits the distribution of technology “is primarily designed or produced for the purpose of circumventing a technological measure" and also forbids "the intentional removal or alteration of copyright management information" such as watermarks (cited in McCullah’s article). Under these criteria, if we consider the chemical to be a “technology”, the chemical itself is clearly in violation of the DMCA. The coating “circumvents” the technological measure in place. Furthermore, it blatantly alters the “copyright management of the information” on the DVD. There are some similarities between this case and the case of the dissemination of deCSS and Felten’s cracked SDMI watermark. But these represented fights between security researchers and the interests hiding behind the DMCA. A chemist cooking up some illegal home made formula and an academic cryptographer are very different. In the latter’s case, there is some ostensible good being offered to the public. The transmission of the recipe over the Internet is protected by free speech. There was some question as to whether code was speech, but in this instance, the formula is communicated in plain English. Just as first amendments rights would protect the right to explain over the Internet how to pick a lock, it would protect the right to put a recipe to a chemical on a web page.
I am writing in response to Ethan Abraham¡¦s opinion on whether the chemical or recipe should be prohibited by DMCA or not. I intend to provide counter-arguments to his two defenses and argue that the use and distribution of the chemical constitute violations against section 1201 (a) and (b). Abraham first claimed that section 1201, (a)(2)(A), of the DMCA - ¡§No person shall manufacture...in any technology...that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.¡¨ ¡V was most relevant in this case and argued that ¡§the coating does not effectively control access, so neither the chemical, nor its recipe, are covered under subsection (a) of section 1201 of the DMCA.¡¨ His reasoning was that the DVD player does not need to do anything special to access the DVD to view it the second time after the chemical was applied, so it did not circumvent any copyright protection systems. I disagree with his argument, as he essentially was saying that the coating technology did not protect the copyrighted work effectively after it was disabled by the chemical. It was because the chemical had removed the protection mechanism employed by the copyright owners, the DVD player ¡§merely treats the DVD as it would any other DVD.¡¨ The use of chemical did circumvent a copyright protection system and therefore should be covered under section 1201(a). Abraham second contended that subsection (b) of section 1201 did not ¡§prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.¡¨ He argued that ¡§one who uses the chemical in question to deactivate the coating is definitely not reproducing the copyrighted work, preparing a derivative work, or distributing copies of the derivative work.¡¨ I disagree with his claim that the chemical user did not reproduce the copyrighted work. The DVDs copyright owners sell the DVDs for being viewed once and only once and the buyers therefore only have the right to view them once. Deactivating the coating enables the buyers to view the DVDs more times than they are entitled to. The copyright owners¡¦ exclusive right to reproduce the copyrighted work in copies or phonorecords (under title 17, Section 106 (1)) is undeniably restricted. The coating does limit the exercise of a right of a copyright owner by a non-owner, so its distribution does fall under the jurisdiction of subsection (b) of the DMCA.
There is no question that the SSSCA would calm the fears of the content holders and Hollywood executives. Clearly we need to find a way to implement strong copy protection. Piracy is a threat. But if technology firms are forced to conform to government restrictions and regulation, given the pace of change, innovation and competition in the marketplace will surely be harmed. Librarians, programmers and open-source advocates feel that if we impose an inflexible platform on the tech industry, the uses of the PC will begin to narrow and the improvement of human knowledge will suffer. Copy-protection technology might deaden the pace of technological advancement if it becomes illegal to use flexible platforms and networks. As Zittrain said in his op-ed piece in the NY Times, the effect would inevitably place limits on the kind of software PC users can use and therefore limit what PC users can do. The result is that the PC is reduced to a “super-VCR.” Allowing this kind of control over people’s lives will severely stall the engine of our economy that is the Internet. The bill is unsalvageable. Government has no right to control and mandate what technology does. That ought to be left to the market.
Please think about Lauren_Smith (Lauren Jaye Smith)'s answer: I oppose the SSSCA as written. In principle, if the proposed technology does nothing more than act as an extra stop-guard against what is already illegal (leaving aside issues of whether or not it should be) it should be innocuous. However, I have doubts that the technology will be implemented this way. The SSSCA would make illegal the alteration of hardware, which may be legitimate and should not be penalized in and of itself. The hardware affected (interactive digital device) seems very broad, and I am not sure that such breadth is necessary. I oppose the creation of new federal felonies, unless much more narrowly tailored. “Personal financial gain” could be interpreted to apply to a teenager saving on movie money. This could make a felon out of thousands of college students. The “willful and for gain” standard that applies to criminal convictions should apply to all convictions, lest innocent, unwilling violators be prosecuted. For the same reason, pr! otections against penalties for the receipt of “unauthorized” materials should be written into to the act. Furthermore, this measure is just adding one more loophole that the digital community will be able to get around. I am concerned with what the level of monitoring will be, both in terms of individual privacy, and in terms of efficiency. I would hate to see this bill open the door for invasive surveillance techniques, which, incidentally, could prove to be quite costly and impractical. (If we are going to require this technology to be built into hardware, I would prefer it to be as an optional tool for those who wish to protect themselves against copyright infringement.) Finally, the Internet is rapidly changing copyright law. This bill seeks to protect the existing structure, and it is questionable whether it can preserve it for much longer than its natural half-life. Given copyright law’s uncertain state, this technology may prove to be overly obstructio! nist, and the bill an exercise in futility. (ANSID 12959) I agree that the definition of what hardware cannot be altered and must comply is far too broad, "interactive digital device" has no real meaning. I don't really agree with your concerns about college kids saving money on going to the movies though, that is just what this act is aimed at, although the felony charge might be a bit much, but I don't really consider my behavior... er.. college kids behavior defensible on the grounds that they are poor. I had the same objections to the way the security system would be administrated and I just can't see the government keeping up with all the smart hackers out there with too much time on their hands. as for making the standard optional, that would just make it ineffective as no one in their right mind would buy the protected system, everyone would buy the unprotected system and proceed to pirate. sorry i'm late
Senator Hollings, although all of us understand the importance of copyright protection, I would recommend voting against the SSSCA as it currently stands. The bill is too broad in jurisdiction and overly harsh in its penalties. It is quite unsalvageable as providing measures that ensures the rights of both copyright-holders and consumers. First, the bill ignores the fact that as all security measures are prone to circumvention, the forced adoption of one government-sponsored standard might be counter-productive towards stemming piracy. Such a system would make secure digital data too much of an “all or nothing” shot: once one device has been cracked, similar methods could be employed against all other devices and software. Past experience with technological schemes have shown that although legal remedies can be applied after an encryption mechanism has been cracked, they are not effective in preventing dissemination of that information. This has involved not only decryption tools like DeCSS, but also file-sharing technologies like Gnutella – which was pulled off by AOL in a matter of hours of its release, but continued to gain prominence on the Internet as a whole. Legal measures taken against its circumvention has neither proven to be effective in the past and if anything will stifle serious cryptographic research on security technologies. Educational and research institutions should be exempt from the penalties prescribed by the law. It is also my concern that the commerce department’s responsibilities for establishing the standard, the anti-trust exemption, and the exceptions to Federal sunshine laws are clauses which overstep the limits of government authority for a matter which could better be handled by the private section. I suggest that the bill be amended from its current form to allow for the manufacture of devices not pertaining to a central government standard. It should allow for other “good faith” efforts at protecting copyrighted data. It should also allow the public to take part in any discussion of a government-sponsored protection scheme. This would allow for criticism and revision in the process of choosing a national standard. Without this, the bill gives too many additional privileges to business without offering concrete guarantees to consumers. It is in the interest of protecting consumer interests that I would add a clause requiring all digital works to be freely disseminated following expiration of copyright. Otherwise, any protection scheme will act as a hindrance to people’s lawful access to works in the public domain. It would also be prudent to require copyright holders under the new law to abide by the same concept of “fair use” as exists currently. I believe that these provisions will help to make the bill a much better piece of legislation.
In conversation with Senator Hollings: I strongly encourage you to oppose the Security Systems Standards and Certification Act(SSSCA)which requires computer and electronics manufacturers to include copyright-protection technologies in the production of certain products and multi-use devices. There are many legitimate uses of technolog that would be impaired by these measures, especially now that we have the Digital Millennium Copyright Act (DMCA) which provided extra protection. The SSSCA is likely to have more far-reaching and damaging effects. For example, Colleges and universities throughout the U.S. would no longer be able to teach advanced computer science and computer engineering. The acts of writing basic operating system software or assembling simple computer systems in classes or as assignments would be against the proposed law. Research in computer security and protection would be further curtailed,as any such research would be required to be done on (and not interfere with) whatever technology is imposed by this law. A wide-range of devices such as digital cameras, wrist watches, electric pianos, televisions, ATM machines, cell phones, and medical equipment all process and display information electronically. Under the proposed legislation, all would be required to support anti-copying protocols. As one commentator has already noted "inclusion of anti-copying technology in general purpose equipment -- including real-time computing devices used in traffic control, air flight control, medical equipment, and manufacturing -- adds to their complexity and potential for failure". Other countries will not have similar requirements in their laws and this will put U.S.products at a competitive disadvantage with other products manufactured elsewhere in the world. I hope these arguements will persuade you of the dangers of the SSSCA
I would be compelled to inform Chairman Hollings of my disapproval of this broadly written legislative proposal. Title1:Sec 109(3), in its overly inclusive definition of an interactive digital device, vastly overreaches the copyright protective powers of the DMCA. Federally mandated copy-prevention systems, governing all consumer digital content, is an overextension of the powers of government and an as yet ill-defined private sector. I would respectfully suggest reconsidering the soundness of introducing legislation that negatively impacts upon citizens fair use rights and publlic domain rights. I would then pose this question- Is it possible to contemplate all of the far-reaching conseuqences this legislative action may bring to all potential contexts and future applications? Legislating the enforcement of copyright protection technologies represents government interference in a new arena, the establishment of technology standards. Requiring a broad category of electronics to support this technology appears impractical and ill suited to many devices. The application of this legislation would effectively raise US industry operating costs and present an economic burden to US corporations, hindering their ability to operate and prosper in international markets. Further, enforcement of this legislation would have a negative impact upon foreign imports, and may eventually render products such as the Linus operating system and most Open Source software illegal. In addition to what I consider to be the primary offenses of the SSSCA, the vagueness of many proposed sections raises concern. Title 1: Section 105 does not clearly define "reasnable and non-discriminatory terms" and the exemption contained in Section 101(b) does not contemplate the potential ramifications for consumers and retailers that arise from the re-sale or import of legally manufactured equiptment that is not in compliance with the SSSCA. This point, taken further, could call into question the legality of redistributing a file, viewed as a result of initial breeches in security technology. Could this act pose the potential for an individual to unknowingly perpetrate a crime? I would also point out that Title 1:Section 103(a)is not drafted to support exceptions to the illegality of circumventing CST devises which might be performed by researchers or persons exercising their rights under fair use provisions. In broader terms, educational excellence, academic and industry research would be compromised by the mandatory adoption of SSSCA. This would effectively restrict the activites of Computer Science Departments, hindering their ability to instruct students in the writing and assembly of operating systems. I would remind Senator Hollings of the NJ Federal Court dismissal of improper threats, form the recording industry, against Professor Felton and USENIX when they sought to expose defects in the SDMI audio CDs lock-down schemes. Although a court ruling was not obtained in this case, both the government and recording industry upheld the publishing rights of "scientists attempting to study access control technologies" by rendering them outside the reach of the DMCA. Must this issue be reexamined in light of the SSSCA? The general nature of copyright laws seeks not to inhibit technological innovation nor restrict the free and open exchange of information. Its purpose is to provide protection to specific industries, such as entertainment. In seeking a fair resolution to copyright issues, the matter of incorportaing public interests into an arena where an undefined private sector (represented by companies manufacturing digital divises and content owners) dictates the establishment of a "standard" to protect their interests seems prudent.
If I had the opportunity to give my opinion to Senator Hollings before he had to vote on the SSSCA comitee, I would tell him that I am in favor of it. I approve the SSSCA because I think that digital content needs to be protected to some extent from being copied. The musicians or authors of the information should be recognized and receive the rights that they are entitled to as owners of the intellectual property. It would eliminate a lot of the copyright encryption problems if the SSSCA finds its way to impose the requirement so that the equipment (software and hardware) includes copy protection controls; but in a way the old technologies would still violate this act unless it is not enacted in a retractory manner. This Act will make the transition between having information being open as in Napster to a more regulated use of information, which is ideally the way that we would like the information to follow but parts of the SSSCA may go to far when it comes to making the distinction of what’s violating the law and what’s not.
I would tell Senetor Hollings that I am against the SSSCA and that he should not vote for it. I think this act is too extreme and too broad. The SSSCA requires all digital media to meet a security system standard that will be set by industry representative (music and movie) and digital device manufactuers. It goes a step further as to make it a civil offense to create or sell any kind of computer equipment that "does not include and utilize certified security technologies" approved by the federal government. It also makes it a federal felonies to distributes copyrighted material with "security measures" disabled or to have a network-attached computer that disables copy protection. These measures give total control of copyright material to the entertainment industry at the risk of impeding techonolgoy. Under the SSSCA, the government and entertainment industry have to approve any digital device before it goes to market. This will probably be a long slow process that will slow down the emergence of new technologies. Also, customers will never have a chance to have access to digital devices that were rejected. This act forces consumers to buy a certain product (those approved by the act). Therefore, it can in effect created a monopoly on digital device which will further slow down technology (due to lack of competition). Also, I do not see why this act is needed when the DMCA should on its own protect copyright. DMCA prevents the usage of anything that circumvents technological measures that protect copyright. Under this act, copyright should be protected as long as the copyright holder puts in an effort to protect the property. Therefore, I feel you should not vote for this act because I don't see why this act is necessary and I feel this act has a negative affect on the technological innovation.
I totally agree with you as to the fair use argument you make. I just do not see how a computer will be able to put some sort of technology in place that could somehow decipher between someone engaging in copyright infringement vs. fair use. The first use exception is supposed to help others benefit from the copyright laws without taking incentives away from the those who produce such works. Putting these technology security measures in place will undoubtedly curb fair use. I also agree with you as to the information that will be stifled. In addition to the points you make, I also feel that there may be some copyright holders out there who do not mind if their work is downloaded or copied for certain purposes. Why should Congress decide that something like a computer cannot be used to get a copyrighted work, if the holder of a copyright himself does not mind. Also, there are some works which will not be allowed to be copied that may not even be copyrighted in the first place. I also agree with the science arguments you make. I think manufacturers will not be able to innovate as much if they have this technology restriction over their heads. Overall, I think that the makers of the copyrighted materials should be the ones who bear the burden of protecting their work, rather than those who make products to get their work to the public sphere.
I completely agree that this act falls short of and more importantly contravenes the goals of copyright. I share your apprehension in having a private or governmental body determine the standards by which certified security systems would operate. Given the political demand for some sort of effective “fix,” however, it seems that this is an area in which congress will be forced to muck. The fact is that the content industry views the circumvention of copyright with technological systems as a major danger to their future revenue. As such, whatever may be lost in revenue, at least in their minds, should be poured into lobbying efforts. I agree that the safe harbor provision under the DMCA for ISPs is more equitable to the ISP; however, under the SSSCA it is likely that at some point along the legislative process, the providers of service will lobby for protections similar to those in the DMCA. After all, this proposed statute would debilitate ISPs unless there were some sort of protection. Without this protection, they would have to engage in enormous costs to prevent all users from transmitting copyright-infringing material. This paradigmatic over-deterrence would most likely not survive the now-powerful lobbying force of the ISPs. I agree that the lack of an intent requirement is generally unfavorable. However, most applicable copyright law from the Copyright Act does not include an intent or scienter requirement. In fact, it would be admittedly impossible to prove these kinds of things – how does one get in the head of an infringer. The concept of res ipsa loquitur solves the requirement of intent. For example, if a copyright-protected material is transmitted from a particular computer, who cares why the person did it, there must be some negligence behind it that can already be inferred. Because it’s already pretty much the law, the lack of an intent requirement is not as annoying to me. I agree that artists who choose to place their work in the public domain should be allowed to do so. It isn’t obvious that the proposed SSSCA blocks this, however. The danger, of course, is that security mechanisms will be over-inclusive and make it impossible for artists to place their work in the public domain.
RESPONSE TO DAVID GILON's answer: You suggest that the market should be allowed to solve the problem, but I wonder if the reason for the SSSCA is because of a market failure as exemplified in napster/morpheus and MP3 players. THere is a collective action problem. AS long as some manufacturer is willing to make a device that plays illegal copies, then these copies can be played and a market will develop for the device that plays them. Probably Sony would rather no one could listen to MP3s off of a computer, but since someone is willing to make an MP3 player, they will just lose out if they don't as well. It seems that in order for the Market itself to solve such a collective action problem, there would have to be a great deal of collusion and/or concentration of market power in a monopolistic entity in both the music recording and technology-making fields. PErhaps we don't want to encourage the develop of this type of market cartel, and thus having gov't step in will help keep the markets open. I agree with you however, that something about the SSSCA seems overly intrusive and stifling of innovation. PErhaps the suggestion from class of turning the criminal penalties into a safe harbor provision would help solve these problems. Aaron Bloom
Francine Martindale - Week # 4
These days, it is easy to go online and find out people’s personal details. Within two minutes online, I found out that Becca’s birthday might be on July 23rd, while John’s might be on September 12th, and his father’s on February 25th, and that they live in Southborough, MA. Do I know the actual years? Their exact addresses? Could I easily find out more? Yes, yes, and yes. Did I break any laws in finding this much out? Not that I know of. Could the easy availability of this and more sensitive information online such as Social Security and credit card numbers pose serious problems? Absolutely, depending on who’s gathering this information and what they plan to use it for. Here’s a possible nightmare scenario: A Day in the Life of Fred von Websurfer, Product Developer, U.S. Navy Fred’s an average guy with an average life, until one day, he is fired. Seems the IT department has presented a report of his online activity to the Human Resources department, outlining his numerous visits to gay chat rooms and websites. They even have a copy of a personal ad he posted. Fred’s bisexual and not out of the closet, but he realizes that the circumstantial evidence of the IT department’s activity log would not look good for him in court, if he tried to fight this legally. He’s not too upset, because the product he was developing has just been patented by a competing division, anyway, and the trademark he wanted registered too. Was this a strange coincidence? Or did the competitor monitor the patent and trademark searches Fred did a while ago and then register the patent and trademark themselves? Fred’s not sure. He’s not worried, though- he’ll live on his credit cards for now. On the way home, he tries to charge his car’s gas, but his card’s been denied. Why? A hacker has been using cards in his name for months without his knowledge. Seems they hacked into an airline’s site (which was easy, as they’d left a ‘backdoor’ open). With no credit now, Fred goes to withdraw cash from the bank, but it seems another hacker has used a “packet sniffer” to find Fred’s online banking user name and password. They’ve changed his mailing address, made fake ID, got a new checkbook, and drained his account. Fred walks home. The repo men carting off his furniture are no surprise. He checks the mailbox, and find a bill for $20,000 from his ISP. Why? Seems his home IP address and log-in details have been distributed across Hungary for people there to use to log in, all because he has a DSL connection with a static IP address and someone hacked GRIC (a service that allows roaming between various ISPs) while he was checking his e-mail from overseas. Just then, Fred’s wife comes out of the house, carrying a suitcase, and holding the neighbor’s hand. “Fred,” she says, “I’m leaving you. I was horrified to find in your browser’s ‘History’ file that you’ve been visiting “Wild Wanda’s Webcam” and have struck up a steamy e-mail correspondence with her. Orville and I were going to bump you off for the insurance money, but it seems that your health insurance wasn’t approved. They apparently bought reports that show you’ve been visiting medical websites and researching heart attack symptoms, so they felt you were too much of a risk. Goodbye.” With no job, no money and his wife gone, Fred’s pretty much left with just his dog, Mugs, a trusty bull terrier. Walking through the now-empty house, he sees that his computer hasn’t been carted off yet, and decides to log in for one last time. His home page pops up, with various links reading, “Looking for a job? Need a loan? How about a date?” He’s not surprised, as he’s used to the detailed online profiling that goes on, but he’s not at all amused to see the one in the middle. “Click here to sell a trusty bull terrier!” He contemplates suicide, but doesn’t get the chance. A stalker has got his name and address from eBay, and shows up to do the job for him. What is the solution? Some problems, such as protecting access to files via one’s physical computer, can be fixed with solutions found commercially (encryption & authentication software), whereas other problems seem to need to be addressed with good legislation. These include: -Protecting packets of information that are on web servers, or traveling between routers; -Ensuring that information and data are gathered with user’s knowledge and permission; -Ensuring that gatherers use and disseminate the information in reasonable ways and for reasonable, lawful purposes; -Protecting users from people and entities who wish to gain access to their information to use for unlawful purposes. Perhaps the Electronic Communications Privacy Act of 1986 or another Act could be amended to include such a statute, otherwise an entirely new Act specifically addressing online privacy could be drawn up.
Mr. Youngerwood makes good points concerning the overly inclusive nature of the bill. The SSSCA in its current form seems to be a measure designed only to deal harshly with a pervasive problem. It is indeed crafted to let loose the fury of government bulldogs upon copyright burglars. Single-minded, the SSSCA is a bill that grants too many privileges to industry without offering safeguards to consumers. However, as broad as the bill is, I disagree with the technical assessment of Aron’s critique. I can see no reason why the SSSCA would curtail the ability of universities to “teach advanced computer science”. I personally find nothing in the bill that would curtail teaching or research in any degree, except in regards to cryptographic research. Aron is too broad in his assertion. As for encryption research, would the bill be better salvaged by an amendment protecting the right of genuine research? I also think that Aron’s claim that all devices - from ATMs to medical equipment to air traffic control – would be forced to incorporate the security measures is an unrealistic argument. The bill clearly intends to only apply to devices with a “connection with copyrighted material or other protected content…” (SSSCA Draft, Sec 102) Aron is also too assertive when he states that the SSSCA “will put U.S.products at a competitive disadvantage”. Section 101 merely states that it is illegal “to manufacture, import, offer to the public, provide or otherwise traffic” in unsecured devices. It does not require US companies to adopt these security measures for the overseas market. In fact, it will probably be more burdensome for foreign companies to adopt security measures for sale in the United States. Most electronic devices are manufactured overseas anyway.
I think that web-based classes pose a potential privacy issue. A nightmare, using this class as an example, could occur very easily. A person simply needing to now an individual's social security number could register a student, at least an extension student, for a a class. Just an example, say a student has an angry girlfriend/boyfriend, roommate or friend. To spite the student this person gets a quick glance at their driver's license which mostly likely contains their social security number. The person then proceeds to register the student for a web based class. To further spite them, this person actually submits the assignments but turns in very poor quality work to ensure this student fails. The fact that the class is web based allows this person to remain anonymous. At the end of the semester the student receives their grades and is shocked to see a failing grade in a class for which they never registered. In an effort to straighten out this mess. The student goes to the professor and tries to explain the situation. The professor has to decide whether he believes the student or if the student simply failed the class and made up this story to get out of it. Perhaps the student already had a low GPA and is therefore not given the benefit of the doubt. The student was already on academic probation for this low GPA and is now forced to withdraw because of the failing mark. Now instead of having a degree the student is stocking shelves at Wal-Mart because of a prank. A prank that could have been prevented by more stringent regulations on what is required to be able to access information and make changes to information about an individual.
DeCode Genetics is a biotech firm in Iceland which has the license to create a genetic database of the country's entire population. It would also contain genetic information of an individual’s ancestry. That means that all the genetic information of every native Icelandic individual, their immediate family and their ancestors will be in this database. My privacy nightmare would be if such a database were to be implemented without government supervision by a private company. That company can then sell personal information about a person to a variety of other companies that may like access to that type of information. Insurance companies may use this information in determining how much (if any) coverage to give a particular person. Future employers may use this information to discriminate against potential employees. One possible solution to this nightmare would be to implement the idea of ownership, which regard to personal information. If we had rights over our personal information, the same way a copyright owner has rights over his copyright, then there will be no incentive to sell or give away personal information without the owner's consent. This idea might actual help in a lot of privacy related issues. If we had protected right over our IP address, email address etc., websites and private organizations would be less likely to use the information. Now there would be some issues to address if this idea where to be implemented: where would the line be drawn as what constitutes as personal information (such as would personal information include our location on the web). Also, do we want to deny total use of an individual’s personal information by an organization or just the ability to sell and give away?
REsponse to Lisa Weissbord: Your response identifies a privacy nightmare of the third party type: outsiders listening in on communications not intended for them. As you note, this falls more in line with eavesdropping than with the sort of info that “cookies” leave behind. You highlight what amounts to a magnified power of eavesdropping through technological advance. While telephone eavesdropping has long been a threat to corporations, I wonder whether being able to see what is being typed on computers would be analytically distinct from that. Is the dependency on computers and the amount and sensitivity of information typed on them so great now that we should worry that mere extensions of audio eavesdropping law will not be adequate? I am persuaded that this is a significant concern, though I am less worried about this nightmare than others because: a)we already have a fairly good fit in audio eavesdropping law and b)corporations are generally powerful enough to get whatever protective legislation they need passed (especially if the harm alleged is one we are used to: eavesdropping). You raise one small issue that I also found interesting: what counts as an electronic communication? Why should email be distinct from typing a document in Word that will be printed out and mailed? What if that Word document is emailed? What acts are protected? Is it the transmission that is protected or is it the creation? I believe the laws had in mind electronic transmissions, but you make a strong case for bringing in protection for anything typed on a computer. But then, would only documents meant to be read by others count as communications? There seems to be a problem here of fitting new problems into old categories.
RESPONSE: While I think Mr. Long's concern is valid, and the threat of infomation being compromised is a valid one that concerns many internet users, I tend to focus more on the intentional misue of information by those who collect it directly, or the intentional sale of that information by the colleting party to a third party. However, I think Mr. Long brings up an interesting privacy concern -- the threat of malicious third parties gaining access to information held by non-harmful information collectors is a serious one, and perhaps of more concern to more average internet users than the concerns on which I focus.
This paper will be submitted jointly with Grayson Murphy and Rylan Hamilton. Research Paper Proposal Identity Theft Identity theft is arguably one of the scariest "nightmares" which could occur to anyone. Usually for financial gain, people can assume your identity and either benefit financially or commit crimes under your name. After such an event, it can take a person years to win back their identity. One problem with identity theft is that once the act is committed, it is hard to clean up the mess. Moreover, there is always the threat that it can be done again since the information has already been compiled somewhere. People have had to clear up their credit history, erase criminal histories, and even nullify death certificates! The advent of the internet has increased the opportunity to commit identity theft. It is easier to find documents on how to commit identity theft and organizations which can provide certain pieces necessary for Identity theft. Before, where could people look, the yellow pages? Before the internet, it seems only resourceful people could figure out how to steal someone's identity. The three parts of the paper will be the following: 1) The recent history of Identity theft. Before credit cards, it was much harder to benefit economically in a cash-driven economy. After credit cards, the incentive to assume someone's identity grew dramatically- instant access to deep credit lines! One way people stole identities was by forwarding someone's mail to their PO Box. All it took was a form from the post office, and immediately one would have access to credit card bills and much more.. 2) How the internet can be used to steal one's identity. Does the internet really make it easier to steal one's identity, or does it explain how to do it? Do contemporary "identity thieves" hack into databases? Is the information public? 3) Potential solutions to the problem. This section will stem from section two and address ways to prevent identity theft. In Texas, many supermarkets now require thumb prints with checks. On the back of my credit card is my picture. Are these solutions feasible? Are there ways around them? Resources: The DOJ, FCC have websites concerning this matter. Also, Identity Theft and Assumption Deterrence Act was passed in 1998 and we can look at the testimony surrounding the Act. Finally, there are many news articles, organizations with websites, and testimonials on the web.
I am navigating in the internet to find about a 2003 Rover vehicle that I want to purchase. I search various websites to know about Rover’s history. Also, reaching for information and statistics that grades the quality and duration of the engine comparing it with other brands such as the Mercedes Benz and BMW cars. Furthermore, investigating on diverse market prices to buy the cheapest one. Meanwhile, companies are “webling” becoming aware of the different sites I explored and my interest in acquiring a 2003 Rover car. When I decided which vehicle to buy, the company sells it a higher price knowing my interest in having that type of car. In my opinion, allowing the advertising businesses to transfer and inform other companies about what users are searching for on the web, and which websites are they visiting, should not be allowed. I believe that these acts are interfering and infringing with the user’s personal privacy. Webling should be penalized to protect the users private searching and interests. Why is it reasonable for a company to find out about what users are reading and the type of sites they frequently visit, as well as the things they are searching for? And by doing this, they are taking advantage of the situation and maliciously acting according to the users’ interests.
I think that Joe’s being fired is definitely a privacy nightmare. This privacy nightmare focuses on the idea that criticism should not be stifled by the possibility that anonymity is transparent. First Amendment free speech analysis is very applicable, at least for guidance, in this regard. Our constitutional doctrine frowns upon the punishment of speech by a state actor because of the viewpoint or content of the speech. Here, Joe is punished for both the content and viewpoint of his speech. Granted, the punisher is not a government agent, so Joe is not entitled to free speech protection. However, it is clear that Joe may have an actionable claim for wrongful termination (or something like that – my torts teacher was not very good). The point is that aside from privacy issues, this example is somewhat alleviated by the existence of other actionable claims. The privacy nightmare that this example really gets at, however, is that anonymity would no longer be a shield from which critical minds may express themselves. This problem could be alleviated by anonymous email addresses and similar devices. However, if I understand what I’ve learned in this class, any user, by figuring out your IP address at the time of transmission, could figure out what you have emailed regardless of the actual address. At the very least, in a privacy-suppressing society, this would be possible. In that state, it would be impossible to exploit the technologies of anonymity: identity would be accessible. Thus, this nightmare goes further than simply Joe being fired from Microsoft. Any number of people could be fired by the Post Office for encouraging others to use email rather than snail mail; fired by the state department for subscribing to the UTNE Reader instead of the pro-government US News and World Report; or discharged from the military for buying the Communist Manifesto from Barnes and Noble Online. Those who do not toe the line are subject to discharge. This is precisely why constitutional guarantees are important. The first amendment protects speakers from engaging in controversial speech as long as it is not in their official capacity. So the Sergeant can constitutionally speak at a Communist rally, but he cannot preach Marxism to soldiers poised to kill striking workers. While the right to acquire information is analogous to the right to disseminate information, it is not so clear that the First Amendment would protect the right of the soldier to hear the Marxist speech in either her capacity as a soldier or citizen. Regardless, the first amendment should be a safeguard against this type of privacy concern. Furthermore, the constitutional right to privacy as dictated by the courts should also be a safeguard in the instance that privacy laws per se are insufficient to protect the privacy interests of individuals. It is unclear what precisely would apply in these types of cases since the privacy jurisprudence is somewhat jumbled, but the key is that the doctrine does exist to protect privacy.
Listen here, Fritz, we definitely have to get more R&D funding for developing computer security, especially in this day and age of terrorism. But the SSSCA has to be amended. In this post-Enron world, we can’t let the industry alone come up with the standards. We need to have a much broader group determine what the workings of the Certified Security Technology will be. I mean, we need to have token academics like Lawrence Lessig in on this, even though Disney and Microsoft hate his guts, as well as some officials from the public and non-profit sector. And by golly, we have to guarantee that the sun shines in on the group meetings. I just read a letter from these Association for Computing Machinery people. They’re gun ho about not concentrating resources on anti-copying technology as much as prosecuting systematic infringers. They point out that this law, according to the way this is now worded, can make the work performed in introductory computer science classes illegal. Also, the anti-copying technology that the law suggests can severely damage existing equipment. They think the DMCA goes far enough and that we don’t even need the SSSCA. You know, we can still keep the hard money flowing into our coffers by allowing for a larger number of industry reps than any other constituency in the group. But we need to get a big group together, let ‘em bang their heads a little and perhaps a good compromise can be reached. I mean the Supreme Court just granted Certioriari on the challenge to the Sonny Bono Copyright Extension Act. These things are a little complicated, and you know Disney’s only out to make a killing, not caring one iota about fair use or the public domain in general.
Week 5 John Carter Privacy Nightmare Identity theft is occurring daily. The judicial system pays lip service to victims but very little real justice. The profits are high and the risk is low. The perpetrators if ever caught, if ever convicted and if ever sent to jail are in only long enough to get their dental work done at taxpayer expense. The victim spends years of sleepless nights trying to straighten out their lives. Thieves get access to all my personal information hacking my insurance company, bank and brokerage firm. They deplete my bank accounts and run my credit card to the limit. They apply and get more credit cards in my name. They get loans on my house and car. They sell my securities. My credit is destroyed because I can not stay current on my obligations. While using my credit card to stay in a hotel in Vegas they destroy their room and the Aladdin sues me for repairs when MasterCard denies the charge on my exhausted card. With the money for my new Porsche gone and my Range Rover repossessed I try to buy a used Ford Escort. The used car salesman after checking my credit dials 911. I know I am in real trouble. It turned out that in Seattle a passport in my name was found in the back floorboard of a car, which was rented in my name with my credit card. In the trunk of the car was the dismembered body of a known drug dealer and pedophile. I need an attorney. Now broke I am assigned a public defender that did not go to Harvard. With no money and all my assets repossessed I can not make bail. I loose my business, my professional license, my reputation and most hope to rebuild my life. The next twelve years are spent clearing my name and credit. I try to recover my possessions lost due to fraud but I do not have the money for the legal fees. I try to rebuild my professional career. I can not borrow money because even though all the criminal activity for which I was not even responsible has been cleared from my credit report I have had no active credit history for years. No one wants to hire someone that has not had a significant position in years. I eventually land a job in the fast food industry however at my age advancement opportunities will be somewhat limited. I have a real nice boss. He has invited me to his high school graduation. One day I promise you I will get that Ford Escort. What could have prevented this? Very little, it is happening to people everyday in almost every city in this country. You can only be proactive in checking on your credit report and monitoring your bank, credit card and brokerage accounts to try to fight abuses early. Restrict your business to reputable companies that have strong security.
I plan to write about whether or not international law can be used to contain the threat of information warfare. The starting point will be an evaluation of the nature of that threat, at least to the extent that is possible for someone like myself without a technical background or access to classified information. Then I will address possible international law responses to this problem. Among the ideas that I am kicking around right now are international agreements on cooperation in combating cyberterorism, and possibly an international connvention outlawing certain types of information warfare.
So far my final paper will be about the intention of the US Postal Service to implement a tax for e-mails. I have not done any real research on this yet, however, I heard that there was actually a bill produced in the House to accomplish this very thing. My thesis will be that if the USPS actually succeeded in this that it would hurt them more in the long run. For example, it would surely hurt their PR image. Millions and millions of Internet users would be completely emotional about a tax on their e-mails. Other damages that would be caused by the USPS and any Internet tax would be the law enforcement that would be required to enforce it. My paper will also have concern for the whole Internet tax issue. I will give background on it and also review the precedences for and against a tax on Internet sales. My thesis will revolve around the idea that taxing the Internet and charging for e-mails is a very dangerous endeavor. The Internet is so new and exciting people do not want it to be changed by government intervention. They want to kep the status quo. However, there is definately a compelling interest to tax Internet sales. I will review the legal documents concerning out of state sales and whether tax should or does currently exist. I know out of state catalog sales have no tax, this would of course have to be changed if the Internet would have to be taxed. Basically, I have a very loose idea of what I want to write about. I know this is a hot topic and I would like to formulate my paper around it. What do you think?
- Week # 6
So far my final paper will be about the intention of the US Postal Service to implement a tax for e-mails. I have not done any real research on this yet, however, I heard that there was actually a bill produced in the House to accomplish this very thing. My thesis will be that if the USPS actually succeeded in this that it would hurt them more in the long run. For example, it would surely hurt their PR image. Millions and millions of Internet users would be completely emotional about a tax on their e-mails. Other damages that would be caused by the USPS and any Internet tax would be the law enforcement that would be required to enforce it. My paper will also have concern for the whole Internet tax issue. I will give background on it and also review the precedences for and against a tax on Internet sales. My thesis will revolve around the idea that taxing the Internet and charging for e-mails is a very dangerous endeavor. The Internet is so new and exciting people do not want it to be changed by government intervention. They want to kep the status quo. However, there is definately a compelling interest to tax Internet sales. I will review the legal documents concerning out of state sales and whether tax should or does currently exist. I know out of state catalog sales have no tax, this would of course have to be changed if the Internet would have to be taxed. Basically, I have a very loose idea of what I want to write about. I know this is a hot topic and I would like to formulate my paper around it. What do you think?
Signed into law last year, the USA PATRIOT Act entitled law enforcement agencies with the ability to use broadly invasive surveillance techniques. With these added powers comes an increased risk that government could rampantly violate the privacy of innocent people. In prior cases that question law enforcement's utilization of technological tools at the expense of privacy rights, courts have often stipulated that the usage of such tools is constitutional only when it minimizes the possibility of irreparable harm to bystanders. How, then, can the efficacy of law enforcement procedures be maximized in a manner that least jeopardizes the privacy and equal protection rights of innocent people? Nowhere is this struggle to find a balance between privacy and security more plain for public inspection than at our nation's airports. Given the massive volume of air traffic in the United States, airport screeners must choose a subset of the passengers to search thoroughly. In the wake of September 11, the Department of Transportation has developed profiles describing the characteristics of suspicious passengers. Officially, these profiles include characteristics such as whether the passenger purchased the ticket with cash or whether the trip is one-way. But unofficially, gate screeners also appear to profile passengers who appear to be male, young to middle-aged, or Arab. Airport security is not the only area where the government employs profiles. The IRS has for years used profiles to detect tax fraud. And the FBI has used e-mail surveillance schemes that employ profiles to search for suspicious communication. In our paper, we demonstrate that security screening based on *any* kind of profile is sub-optimal when compared to randomized searches, and hence does not comply with the court-interpreted constitutional requirement that law enforcement powers burden the fewest numbers of innocents. Borrowing from the mathematical foundations of game theory and population genetics, we plan to create a computer simulation that shows how profile-based screening not only falsely accuses more innocents, but also allows an increased number of malicious people to slip through the system. Intuitively, this result holds because, over time, criminals will be able to learn the profiles security systems employ and can then modify their behavior to circumvent the system. Security screening, in short, is not immune from natural selection. The critical variables in our simulation will be the number of criminals that beat the system and the number of innocents that are accidentally searched. Exogenous variables that we manually set include will include how easy it is to learn the profile, the probability that an investigated criminal will be caught, and how much a successful apprehension deters other criminals. Traditional library research concerning the constitutionality and efficacy of profiling will not be our only method of finding information. We will also try to interview the directors of security at Logan airport to make our simulation more accurate. And we will solicit the advice of Roger Hurwitz, a researcher at the MIT Artificial Intelligence Lab, to gain familiarity with how to conduct a game-theoretic formal analysis.
I was considering the subject of economic equality, as it relates to privacy. I am very curious about what effects price and services discrimination would have on our society, ways and motives that companies would have for going about these, and possible "East and West Coast code" preventative measures.
Nichole King-Campbell - Week # 6
Sorry for the late response For my Thesis I would like to explore the concept of Digital Apartheid or the Digital Divide. In particular I would like to look at the history of this phenomeneon. Next I would like to look at the current status in various regions of the world Europe, Asia, Africa and South America/Caribbean Aftewords I would like to see the US response to this internally and externally Finally I would like to investigate what fixes there are for this "problem" as well as predict what I believe will be the result of our action/in action. http://www.businessweek.com/adsections/digital/powell.htm
Research Paper Proposal Identity Theft Identity theft is arguably one of the scariest "nightmares" which could occur to anyone. Usually for financial gain, people can assume your identity and either benefit financially or commit crimes under your name. After such an event, it can take a person years to win back their identity. One problem with identity theft is that once the act is committed, it is hard to clean up the mess. Moreover, there is always the threat that it can be done again since the information has already been compiled somewhere. People have had to clear up their credit history, erase criminal histories, and even nullify death certificates! The advent of the internet has increased the opportunity to commit identity theft. It is easier to find documents on how to commit identity theft and organizations which can provide certain pieces necessary for Identity theft. Before, where could people look, the yellow pages? Before the internet, it seems only resourceful people could figure out how to steal someone's identity. The three parts of the paper will be the following: 1) The recent history of Identity theft. Before credit cards, it was much harder to benefit economically in a cash-driven economy. After credit cards, the incentive to assume someone's identity grew dramatically- instant access to deep credit lines! One way people stole identities was by forwarding someone's mail to their PO Box. All it took was a form from the post office, and immediately one would have access to credit card bills and much more.. 2) How the internet can be used to steal one's identity. Does the internet really make it easier to steal one's identity, or does it explain how to do it? Do contemporary "identity thieves" hack into databases? Is the information public? 3) Potential solutions to the problem. This section will stem from section two and address ways to prevent identity theft. In Texas, many supermarkets now require thumb prints with checks. On the back of my credit card is my picture. Are these solutions feasible? Are there ways around them? Resources: The DOJ, FCC have websites concerning this matter. Also, Identity Theft and Assumption Deterrence Act was passed in 1998 and we can look at the testimony surrounding the Act. Finally, there are many news articles, organizations with websites, and testimonials on the web.
Please send this to the Rotessiere: The paper is going to be written in conjunction with David Sperber and Ronaldo DaSilva. Here are some preliminary conjectures that will possibly guide our collective work. Tentative Title "Internet Infrastructure Policies and Economic Development in Latin America" [copied from Ronaldo's Rotissiere] Firstly, our paper will try to avoid as much as possible the copyright topic. As we have discussed together, copyright in the Internet has become one of the most prominent commonplaces in recent legal analysis, and I believe we are very close to its saturation. An investigation about the reasons which currently keep leading so many legal scholars to focus their research in this topic even knowing that their work will not be original is itself a good topic for another paper. Accordingly, writing about copyright in the Internet age has becom a task almost impossible to be performed without falling into one of the many usual clichés that have become inherent to the discussions about this theme. Therefore, in our paper, we will put aside as much as we can the issue of copyrights in the Internet. We will focus instead on an equally important topic which has been discussed only scarcely by legal scholars, namely, ways of bridging the digital divide by means of the adoption of specific infrastructure policies aimed at providing universalization of access to information, technology, and communication. Accordingly, our paper will focus in the recent data published at the “World Information and Communication Report 1999-2000” prepared by Unesco, describing how different parts of the globe have been dealing with the aim of fostering satisfactory grounds for an “Information Society”. Using this report as a starting point, we will investigate the relations between the infrastructure policies policies and the improvement of the so-called “Information Society Indexes". In order to do that, we will adopt take a critical perspective also towards the conclusions proposed by the Unesco reports. This critical perspective will be possible by means of using comparative analysis to verify the conclusions in the report, checking also for other empirical and theoretical information obtained from different sources. As a practical example of my proposed method, the Unesco report drafts a series of conclusions about the “Information Society” level in Latin America. By making reference to different sources, it is possible to check whether these conclusions are pertinent, and also, what is the impact of the infrastructure policies adopted in the region to the accomplishment of this level, both from the Unesco report perspective and from other empirical and theoretical sources.
Currently wireless technology is growing by leaps and bounds. Two or three years ago, wireless networks did not exist at all but now wireless networks are sprouting up all over the place to the point where even places like Starbucks have them so their customers can check their mail while sipping on a latté. However, the problems that occur in normal wired network are multiplied tenfold with the advent of wireless networks. In addition to the general lack of security over wireless networks, there is also the greater issue of jurisdiction. What happens two wireless networks are overlapping common airspace and because of this, packets either collide or are inadvertently intercepted? Who is responsible if one wireless networks piggybacks internet connection from another wireless network that is connected via ISP to the Internet? For this term paper, we will investigate the legal and technological issues with wireless networks in terms of both security and jurisdiction. In legal issues, we will deal with the problem of jurisdiction of wireless networks by investigating the possible safe harbor doctrine for people who run wireless networks. This safe harbor can be all-encompassing or it may require all wireless network administrators to run some type of encryption to protect their network. In terms of technology, we will experiment with current network security devices such as firewalls and encryption and see how well they fare in a wireless world. Furthermore, we will investigate new options in wireless network security and administration that may not have been fully developed. For this project, I will be working with Richard Hu and Pius Uzamere.
This response is very sketchy, so bear with me. One thing that interests me about the internet is the new relationship it creates between people and information. By that, I mean that there is so much of it now accessible – a) we become used to expecting that everything is knowable via the internet; b) limited anonymity – we know that we can be “googled”: do we respond by putting more of ourselves on the net (making a website, chatting, etc.) or do we recoil?; and c) information glut – there is too much information, so we develop internal filtering mechanisms – new ways of looking at information in which the default state of our mind’s eye is “ignore,” until it scans something we’re looking for. This third point is most interesting to me. Is this method of filtering/ignoring and cutting to what we are looking for really a new way of looking/searching? If so what are the implications – for how we build our knowledge bases and then produce knowledge/information ourselves. Other times in history, people have been faced with an information glut. I remember a college prof describing the public’s reaction to the first department stores: people got sick from so much information – literally passed out in the stores. Have there been similar information overloads in the past? What has happened? How has the law responded to new modes of filtering information? (Is the AP v. INS case an example of an attempt to do so in the past?) Does the way of looking at online information (a way of looking that will likely bleed out of cyberspace) create new legal issues or affect our analysis of old ones? I am thinking of trademark “initial interest confusion” doctrine as one example. Are there others? That’s a sketchy outline of where my thinking is right now. Do you have any suggestions for literature I could read to hone my topic area? Or any suggestions for legal areas affected by information glut? Trademark law is OK, and I am doing work on it for my clinical, but trademarks don’t really get me going.
Cactus Data Shield by Midbar Inc is copy protection technology that disables the ability for cd’s to be played on computers (to prevent image copying). It also adds glitches to a cd that dramatically reduces the quality of track-by-track copies (normal cd players ignore these glitches). Midbar has released this technology in Europe on selected cds and plans to do the same in the US markets. Our paper will focus on the repercussion of the use of this technology. This technology and those like it is main weapon of the SDMI, an industry alliance to protect copyrighted material. We want to show that this technology and this alliance is not in the best interest of the consumer. These alliances backed by such technologies have monopolistic power and could possibly violate anit-trust laws Cactus Data Shield retricts the ability of the owner to use the cd in perfectly legal ways. This protection technology prevents the playing of the cd on computers. Section 117 of the Copyright Act, the first sale doctrine, permits the owner of copyrighted material to make non-commercial archival copies of that material. Also owners of copyrighted material have the right to space shift, move data from one media to another. The Cactus Data Shield technology restricts both of these abilities and gives too much power to the copyright owner. The use of Cactus Data Shield raises a lot of monopoly issues. Three out of the five major recording companies have an agreement with Midbar Inc. The SDMI is a potential industry alliance among copy protection companies, major record labels and electronics companies. This alliance may have the power to force consumer to buy “SDMI approved” cd’s and electronic (such as cd players).
Let’s get to know John Doe. Our hypothetical friend could be described as an average demograph: male, between 18-35 years of age, college educated and employed. How might anyone get to know John Doe so well? By a compilation of his clickstream profiles (gathered by DoubleClick); his lifestyle and purchasing habits (courtesy of Abacus); all made personal by the information sold from his driver's license data by Image Data (1999). Prior to updated protections in privacy, the information contained on John's drivers license -- his name, address, date of birth, social security number, as well as his digitized photograph are in circulation. By his social security number, we know what he earns and the credit cards he holds. We know by his EZPass records where, when and how he travels. Through ATM records, we know where he buys his gas and groceries. We know through the Direct Marketing Association what he reads. By his phone records, we know his "friends and family." We know how he enjoys his 700 free hours on AOL. We know by his personalized web page the details of his interests, stock holdings, favorite sports teams and hobbies. One random night, he visits Amazon.com and browses several categories of books: computers, sports and automotive. After those page views, he finally orders a book on car repair. John goes back to his home page, then does some research. He asks Jeeves where to get information on health and wellness, and peruses information on skin cancer. He gets his references, but is tired. He briefly visits a local job-posting site and decides to go to bed. The following week, John collects his mail, surprised at the amount and content. There are solicitations for a second mortgage, and offers for credit cards. There is a letter from GM, offering rebates to first time customers. He also receives a special offer for an oil change and tires. An unsolicited, preapproved credit card arrives from Exxon. There is a bundle of coupons, coincidentally, most of which he can use. There’s a letter from Charles Schwab, and a offering for season tickets for the local hockey team. While sorting through all this mail, John is startled by the phone ringing: it’s Sprint, offering special rates on long distance. Frustrated, John goes to bed. The next week at work, John is called in by his supervisor. "I understand you are unhappy with your job, " he begins, "is there anything you care to discuss?" John is confused. "Furthermore, we received notice from our HMO that their administrator recommends your plan be reviewed." Stunned, John attempts to understand. Fortunately, he is friendly with his supervisor, who, quietly, lets John know that it was assumed he was job hunting since his name appeared on the list of visitors at jobs.com. Also, the HMO was probably cross-referencing people that used the keyword cancer on WorldWideWebMD since they are owned by the same company. John leaves, with a new perspective on the e-tails of everyday life. Though not an obvious nightmare, this is the reality of the state of -- or lack of -- privacy, as we now know it.
Is there anything about the site that you believe should be legally proscribed? What is the most appropriate lawmaking forum through which to decide? The issue is not can a person or group present ideas on the Web that our contrary to the laws of the land? Without that right we would have no dissent. The issue is can a group be allowed to intimidate other citizens into behaving the way they want them too? By photographing and publishing on their web site pictures of people they wish to intimidate are they violating the rights of the people photographed ? Each of the ladies and doctors presented on the Web site should sue the people who own the site for invasion of privacy. I believe the KKK was effectively dealt with in the courts. The Army of God is advocating the overthrow of the government by acts of terrorism. I think this is illegal and against the Constitution as well. I cannot imagine why is site is left operational. The fetus is by definition not a baby, or a human at some points in its development it resembles a fish. These folks are obviously convinced they and only they know the truth. This sounds so universal. We hear this every few years. Hitler, Stalin, and every other loose nut who thinks they know the truth. It is quite contrary to our form of government with our separation of church and state. These people are behaving contrary to our law. People are not allowed to pick and choose which laws too obey. I would ask the authorities to enforce that law. People are not allowed to harass, injure or harm others. These individuals should be brought to justice at once. The issues were decided by the Supreme Court some time ago. Roe v. Wade. These people are no different than any other terrorist group and should be dealt with accordingly. Now if the Supreme Courts nature was changed, by appointment, than perhaps The Army of God would be happy and Roe could effectively be overturned. That is the only way I see to change the current law. However, that is not the issue here. The web site methods are not in the interest of this Country or its Citizens. We elect people who we think, think like we do, and then urge them to act and promote our common ideas. If we abandoned this fundamental truth we are lost. If we support these terrorists we are part of a much greater problem. If we demand justice for the intimidated, we are on the side of our country The issue is not can a person or group present ideas on the Web that our contrary to the laws of the land? Without that right we would have no dissent. The issue is can a group be allowed to intimidate other citizens into behaving the way they want them too? By photographing and publishing on their web site pictures of people they wish to intimidate are they violating the rights of the people photographed ? Each of the ladies and doctors presented on the Web site should sue the people who own the site for invasion of privacy. I believe the KKK was effectively dealt with in the courts. The Army of God is advocating the overthrow of the government by acts of terrorism. I think this is illegal and against the Constitution as well. I cannot imagine why is site is left operational. The fetus is by definition not a baby, or a human at some points in its development it resembles a fish. These folks are obviously convinced they and only they know the truth. This sounds so universal. We hear this every few years. Hitler, Stalin, and every other loose nut who thinks they know the truth. It is quite contrary to our form of government with our separation of church and state. These people are behaving contrary to our law. People are not allowed to pick and choose which laws too obey. I would ask the authorities to enforce that law. People are not allowed to harass, injure or harm others. These individuals should be brought to justice at once. The issues were decided by the Supreme Court some time ago. Roe v. Wade. These people are no different than any other terrorist group and should be dealt with accordingly. Now if the Supreme Courts nature was changed, by appointment, than perhaps The Army of God would be happy and Roe could effectively be overturned. That is the only way I see to change the current law. However, that is not the issue here. The web site methods are not in the interest of this Country or its Citizens. We elect people who we think, think like we do, and then urge them to act and promote our common ideas. If we abandoned this fundamental truth we are lost. If we support these terrorists we are part of a much greater problem. If we demand justice for the intimidated, we are on the side of our country The issue is not can a person or group present ideas on the Web that our contrary to the laws of the land? Without that right we would have no dissent. The issue is can a group be allowed to intimidate other citizens into behaving the way they want them too? By photographing and publishing on their web site pictures of people they wish to intimidate are they violating the rights of the people photographed ? Each of the ladies and doctors presented on the Web site should sue the people who own the site for invasion of privacy. I believe the KKK was effectively dealt with in the courts. The Army of God is advocating the overthrow of the government by acts of terrorism. I think this is illegal and against the Constitution as well. I cannot imagine why is site is left operational. The fetus is by definition not a baby, or a human at some points in its development it resembles a fish. These folks are obviously convinced they and only they know the truth. This sounds so universal. We hear this every few years. Hitler, Stalin, and every other loose nut who thinks they know the truth. It is quite contrary to our form of government with our separation of church and state. These people are behaving contrary to our law. People are not allowed to pick and choose which laws too obey. I would ask the authorities to enforce that law. People are not allowed to harass, injure or harm others. These individuals should be brought to justice at once. The issues were decided by the Supreme Court some time ago. Roe v. Wade. These people are no different than any other terrorist group and should be dealt with accordingly. Now if the Supreme Courts nature was changed, by appointment, than perhaps The Army of God would be happy and Roe could effectively be overturned. That is the only way I see to change the current law. However, that is not the issue here. The web site methods are not in the interest of this Country or its Citizens. We elect people who we think, think like we do, and then urge them to act and promote our common ideas. If we abandoned this fundamental truth we are lost. If we support these terrorists we are part of a much greater problem. If we demand justice for the intimidated, we are on the side of our Country and the people.
Response to Edward Huang's answer: While I agree with the overall thrust of your answer, I think a closer analysis of the First Amendment concerns is required. I do not think that it is relevant whether Horsley engages in "a random, unfocused tirade condemning the abortionists", as long as he does not advocate violence that would have immediate effects on his targets. As long as he does not do so, whatever he says is protected by the First Amendment (with slander/libel exceptions). I also share your concern that if Horsley's brand of deterrence works, women will have to seek more dangerous ways to obtain abortions, and as a result, we may want to bar Horsley's speech for policy reasons. However, I do not think that having one's picture posted on a website necessarily deter women from seeking abortions at safe clinics. Many people are not aware of this site, so the degree of exposure is limited. Getting abortions today also does not really have a social stigma attached to it such that Horsley's brand of deterrence is that great of a concern. It is up to the courts to balance the harm to women and the First Amendment dangers of barring Horsley's speech, but I suspect that the scale will tip in favor of the latter given the courts' historically strong protection of speech in the absence of compelling countervailing reasons. You also brought up privacy concerns in your answer. While I think that publicly obtained information cannot be legitimately barred, efforts by Horlsey and his cohorts to ferret out private information is an invasion of privacy. However, the site does not give any indication of the source of the information. I think your comparison of the harrassment of celebrities by the paparazzi is apt, should the harrassment of people providing and seeking abortions by pro-lifers rise to such a level. However, does it?
Response to Laura_Worenklein (Laura Miriam Worenklein): I believe there is a bit of confusion in your response. These are, to the best of my knowledge, the Nuremburg Files websites referred to in the New York Times article that you reference. And, indeed, you have hit upon an interesting point in observing that there is no legally problematic made on the site--because a judge found exactly the opposite! I happen to agree with your point of view, and am probably every bit as disgusted with the site as you are. However, in deciding in favor of Planned Parenthood, the court may have crossed the line towards being too restrictive of speech. I wonder what your thoughts would be about introducing legislation to balance the harm done by the widely available nature of the personal information on the internet with the fact that nothing on this site has been illegally obtained. This is a delicate line we are walking. Thank you for an interesting response! -Drew
Response to Edward Huang's answer: While I agree with the overall thrust of your answer, I think a closer analysis of the First Amendment concerns is required. I do not think that it is relevant whether Horsley engages in "a random, unfocused tirade condemning the abortionists", as long as he does not advocate violence that would have immediate effects on his targets. As long as he does not do so, whatever he says is protected by the First Amendment (with slander/libel exceptions). I also share your concern that if Horsley's brand of deterrence works, women will have to seek more dangerous ways to obtain abortions, and as a result, we may want to bar Horsley's speech for policy reasons. However, I do not think that having one's picture posted on a website necessarily deter women from seeking abortions at safe clinics. Many people are not aware of this site, so the degree of exposure is limited. Getting abortions today also does not really have a social stigma attached to it such that Horsley's brand of deterrence is that great of a concern. It is up to the courts to balance the harm to women and the First Amendment dangers of barring Horsley's speech, but I suspect that the scale will tip in favor of the latter given the courts' historically strong protection of speech in the absence of compelling countervailing reasons. You also brought up privacy concerns in your answer. While I think that publicly obtained information cannot be legitimately barred, efforts by Horlsey and his cohorts to ferret out private information is an invasion of privacy. However, the site does not give any indication of the source of the information. I think your comparison of the harrassment of celebrities by the paparazzi is apt, should the harrassment of people providing and seeking abortions by pro-lifers rise to such a level. However, do they?
After reading Sally Ha's response, it seems that she has many similar ideas to mine, including the thoughts involving defamation. She seems to be attempting to find a way to stop this website from being legal, but comes up short on all accounts, just as i did. To me, it seems as if she agrees that this should not be legal, but cannot find a way that it is.
You write that the "interactive nature of the Internet . . . enables, and indeed, thrives on conduct," on your way to stating that the Internet blurs the distinction between speech and conduct. This is certainly true, but highly misleading in this context. It's _online_ conduct that's scarily close to pure speech; not offline conduct, however much it may be facilitated by the Internet. The classic tough case for this distinction is computer code: it looks like speech, but it can very easily be turned into conduct by executing it. Especially in a networked environment, this point also runs in the other direction: it's exceedingly hard to engage in any form of "speech" without causing specific physical consequences -- changes to magnetic storage, use of network resources. But the "speech" at stake on AbortionCams.com is medium-neutral: it could be delivered through the mail, by fax, on public access cable, or in many other ways without significantly affecting its relation to worrisome conduct. Interactivity here is largely irrelevant. You suggest privacy legislation as a way of dealing with the issues this site raises. But id doesn't make sense to restrict such legislation to the Internet only. If one is going to prohibit the transmission of personal information (with what purpose or expectation? of creating fear? that may be too narrow. of changing behavior? that's almost certainly too broad), then one should bar it without concern for the medium. After all, the easy accessibility of the Internet is almost an argument _against_ treating it more censoriously than other media: the rare activist who turns to violence will almost certainly be more willing to use media with longer latencies. It's only the vicariously violent for whom AbortionCams.com is specially interesting. Having said that, I think such legislation is a _terrible_ idea. I'm strongly pro-abortion, but I believe in enough unpopular causes to be deeply concerned about legislation of this form. Its effect is to isolate individuals from recognizable accountability for their documentable actions. I've been to demonstrations that could have been shut down under a statute like this one -- but having angry crowds with placards outside the homes of CEO polluters and too-zealous prosecutors strikes me as something worth protecting. If that means the anti-abortion folks can take pictures of doctors, so be it.
Two things on http://www.aapress.org/ appear to be legally proscribable. First, we see at http://www.aapress.org/escapeplan.htm that Neal Horsley agreed to participate in Clayton Lee Waagner's scheme to kill abortion clinic staffers, by acting as a conduit for information about which ones had agreed to quit their jobs at Waagner's threat, and which ones had remained. Presumably, if Waagner hadn't been captured in December and had actually started to follow through on his threat by killing staffers who hadn't emailed Horsley promising to quit their jobs, Horsley could have been implicated in some sort of conspiracy or abetting offense for serving as Waagner's agent. Second, the doctored protest photograph on the front page (http://www.aapress.org/repentance.jpg) may be illegal to publish. Looking closely, the image is clearly doctored, with the typeset anti-abortion slogans perhaps pasted on top of whatever the depicted protesters were actually protesting. For example, in the upper-right-hand corner of the image, the 'E' in "HOMOSE MUST B'E' ARREST" intrudes onto the space of the supposedly-closer adjacent picket ("God Won't Be Mocke..."). If these protesters were actually protesting, say, for abortion rights, they might strongly object to Horsley's faked portrayal to the contrary. I am not sure if there is a Right of Publicity claim here, or if this might be an equitable common law matter. Either way, it seems likely that those depicted as abortion protesters in the faked photo would have a cause of action for an injunction. Other than these matters, which I understand to be already illegal, I did not see anything else on the site which I found to be legally proscribable under the First Amendment. The proper legal recourse to change the situation would appear to be via a Constitutional amendment.
Is there anything about the site that you believe should be legally proscribed? What is the most appropriate lawmaking forum through which to decide? I think that as it stands right now nothing on the site should be legally proscribed. There seems to be no legitimate legal privacy concerns since these pictures were taken out in the open where the subjects were in full public view. Thus on its face, however offensive it may be to some people, the site seems to be taking legitimate steps to advance its own cause. Now, a harder question is what is actually happening out there in reality. Are certain criminals using this site to find their next victims for assault or murder? If that is what is actually happening then there has to be something done about the site. This is analogous to the Model Code of Professional Responsibility dealing with confidentiality. Confidentiality can be analogized to the free speech expressed on the site, it is important to protect even when we don't agree with the particulars of the situation because the respective systems on whole need either confidentiality or free speech to work correctly. However, we recognize that they are not paramount concerns and that when some line is crossed that makes it apparent we can prevent death or another grave harm by curbing confidentiality or free speech, then we need to go ahead and limit it in that situation. I don't agree with the argument that this site should be banned just because it may curb a legal activity or embarrass someone. Dissent is as central to the American ideal as freedom itself, this site is simply dissenting and trying to curb the activities it sees as improper. Pornography is legal in America and almost all communities have some laws in effect (by zoning, bans on advertising, etc.) designed to curb its use, so I don't see any problem in trying to curb a legal activity. If the site started going over the line and actively started encouraging people to engage in illegal or vigilante behavior, then it would need to be stopped. Not completely taken down; just reigned in so that the over-the-line behavior is eliminated. This I believe would be done most effectively at the federal Congressional level. The internet flows seamlessly over state borders so it just does not make sense for each state to try to come up with different laws and both the Executive and Judiciary branch are too focused on single personalities and parties to come up with something the nation could at least somewhat agree on. Therefore, I think Congress is really the only option.
Response to Cesar Santacruz Cesar, Your comments were interesting to me, as I hold a somewhat different point of view on these issues. First, you believe that the information collected and distributed on this website constitutes a privacy violation that should be protected by the CDA. While I agree with you that the victims may suffer humiliation or a sense of violation, I think that we should be careful when limiting speech that is normally protected. Some of the information posted on the website, especially photos of abortion patients, is publicly visible. It could be argued that the subjects of the photos had no reasonable expectation of privacy in a public place. I'm not sure whether you want the CDA to permit publication (rather than just the taking) of those photos; if you mean to limit the distribution of such photos, I would worry that it would chill free speech. How far should privacy rights be taken? Must an author obtain consent to use any photographs or mention of a person? I think that would constitute an unacceptable limit on free speech. I agree with you that the publication of personal information is a different matter, but for a different reason than that which you cite. Although this information seems to have been collected in a public place, its publication may result in danger to the victim. I view safety as a more protectable right than privacy, so it may outweigh free speech where privacy would not. You suggest that there is a difference between posting facts about sex offenders and information about innocent people online because the intent of the former is to protect society, and the intent of the latter is to humiliate. However, I believe that humiliation is a big element of sex offender identification laws; it is a longtime tool of society in punishing wrongdoers. Furthermore, who is to decide which people are unsavory enough to warrant humiliation? If we say that it's okay to punish wrongdoers, or even people who are a danger to society, pro-lifers would argue that there can be no greater threat than infanticide. They view their site as a benefit to society because it prevents an inherently evil act. I happen to disagree, but it is not my business or the government's to regulate the content of most speech. The government should not hold a monopoly on persuasive or humiliating speech. If it did, environmental groups could not publicly chide factories that pollute and campaign finance watchdogs could not disclose shady contributions. To aggregate public interests, it is often necessary to disseminate embarrassing information for the purpose of swaying public opinion and gathering votes. Humiliation is always at work in politics, even when it is not called by that name. Finally, I disagree with your mechanism of controlling this speech: the CDA. I'll admit from the outset that I'm not a big fan of the CDA, or any law that regulates the content of non-dangerous speech. If you call this speech "indecent," where do you stop and start? Should a pro-choice site be considered indecent as well? The pictures of fetuses were some of the most disturbing images that I have seen, but, on the other hand, I think it would be harmful to consider any picture of a fetus indecent. People should be able to freely learn about the reproductive systems and gestation; such information could be extremely valuable to a pregnant woman, or to a child learning about anatomy. How should the law distinguish between "good" and "bad" content? You may think that the images of aborted fetuses are crude, but the author of the site in question probably thinks that they are of supreme educational value they educate people about the disturbing results of abortion. It would be too difficult to determine what content warranted a warning. Further, warning systems, as we have seen, usually block out everything, educational and crude alike. If we require warnings on sites, useful information will not reach its intended audience. A pregnant teenager, for instance, would not be able to effectively research what was going on in her own body. I would prefer crudeness to ignorance on the Internet.
Members: Neil Desai, Daniar Hussain, Andrew Werner (Note that each of us is submitting a different proposal on the topic of medical records, we will then chose one.) Our project will revolve around the technical and legal analysis of a particular medical informatics technology. We would either analyze one of the medical informatics products that are available from a well-established company like Siemens Medical Division, or from one of the many new medical informatics startups in the Boston-area, such as PatientKeeper, Inc. Or we would look at how the system how it operates in a local Boston-area hospital, such as MGH or Brigham. Either approach would put us in the field -- analyzing how the medical informatics system works in practice. One would give us a microcosm view of how a particular product works, and the other would give a macrocosm view of the whole system from a hospital's point of view. The project would follow three tiers: 1. Creation of a privacy/legal rights standard for patient medical information. This would involve research of the current legal framework in which hospitals and medical informatics companies operate, and a proposed legal standard for medical records. There is currently no comprehensive law on privacy on the federal level, and no legal framework for medical privacy. Nevertheless, a good place to start to look for legal precedent is in the Privacy Act of 1974, which many lauded as a good privacy bill as originally written (in a compromise, it applied only to federal agencies, but we could look at the drafts of this bill to look at their standards for private parties). 2. Analyze a particular product (from a company) or the way the whole informatics system in a hospital works from the perspective of the standards defined in #1. The goal would be to see what, if any, privacy and security issues are involved in the implementation. This would involve field work, and direct communication with the parties that use the technologies (physicians, nurses, patients?, etc.). 3. Draft a set of recommendations to the company or hospital on how they can better serve the privacy and other rights of their patients by modifying their product or process to comply with our proposed privacy/legal standards. This would follow the form of a cover letter and report to the interested parties, along with a possible conference meeting with the relevant people. Our contribution would thus be to improve a working system to better serve the patients and protect her rights.
This site and those like it are heading down a very dangerous road. If anonymous anti-abortion activists pry into women’s lives and post on the internet information disclosing that they had an abortion, privacy would be completely violated and woman’s careers and reputations could be in jeopardy. Certainly there would be a degree of social stigma that they would be forced to endure as a result. The internet allows people to anonymously post harmful information about people’s lives for all to see. The question here is whether there is anything about the site which should be legally proscribed. Our current first amendment laws strictly protect free speech, as was apparent when the 1997 Supreme Court struck down the Communications Decency law passed by congress. But clearly, the government ought to protect individuals from harmful speech within the existing legal system. That is, they ought to go after those who disseminate information which is false about other individuals. The Georgia computer systems protection act protected citizens of that state from having false information spread about them. This lawmaking forum (state legislatures), however, may not be the appropriate forum. Some religious right dominated mid western states might delight in having a photo of every woman who ever had an abortion plastered across the internet. Congress ought to step in and make every individual who posts something on the internet accountable for what they’ve done, just as they would be accountable in real space.
When I first started using the internet, I was outraged by some of the websites I found. Espically some of the foerign sites I viewed. I can see how these sites are a bit disturbing to many people. However, it seems as if any of these situations could take place on the steps of the Capital in DC. I believe that when our constitution was drafted, it was meant to protect people like the ones that put these websites up. I have personally been much more affended by things that I have seen on the internet, but I recgonize peoples freedom of speech and just tend to ignore them. The internet is so new to so many people. To start limiting peoples constitutional rights would only create a huge backlash by first amendment activists. If it is protected by the first amendment, then it should be allowed to stay on the internet. However, this does raise the question; the internet is worldwide, what about counties that do not have freedom of speach clauses? Child pornography isn't punished sevirely in some countries and it continues to stay on the web. Some new guidelines will have to be created when dealing with issues such as this. There are too many different laws over too many borders to sucessfully police the internet.
I am working with Derek Bombauer and Sally Ha on this paper. The issues below are preliminary -- we expect to refine (or, possibly, broaden) them as we move through our initial research. General area: Legal and Technical Controls and Countermeasures on Unsolicited Commercial E-mail (UCE or "Spam") I see three problems that may be of interest for a paper. Problem 1: I get lots of Spam in my e-mail Inbox. I have to pay my ISP to download the stuff, and there's no easy way to opt out of receiving it. Furthermore, attempts to contact the spammer typically fail -- either the return address is fake, or replying informs them that this is a live e-mail account, which increases the amount of junk I receive. (There are actually flourishing markets for real e-mail addresses, in the same way that some charitable organizations sell donor lists to each other.) Typical solutions to Problem #1: 1) Live unhappily with the status quo and use the Delete key 2) Complain to my ISP and try to get them to implement controls that prevent spam (difficult in practice -- complaints are often ignored) 3) Set up some sort of rule or filter in one's e-mail program (such as Eudora) to deal with the problem<br>4) Look into legal causes of action (problem: damages are probably about 6 cents) Problem 2: I'm an ISP, and spam costs me money (storage space on disk, processing and transport time, bandwidth utilization, virus problems, etc.). Typical solutions to Problem #2: 1) Live with the problem - pass costs on to subscribers. 2) Seek technological solutions to the problem. (Example: compare IP address and hostname passed at HELO / EHLO to PTR record in DNS or check to see if @domain in MAIL FROM is listed in DNS.) However, these cost money and time, and there is an "arms race" between spammers and ISPs around these precautions. 3) If possible, sue the spammers. (Usual problems of personal jurisdiction here.) Problem 3: I'm an ISP or a large company. Some of my e-mail servers are insecure. This leads to a number of possible problems: - I act as a free ISP for spammers, who use my servers to route spam and to hide their tracks. - Someone uses my servers for a "denial of service" attack. For example, I break into IBM's e-mail servers and use them to send 100,000 fake messages to Microsoft. Microsoft probably rejects these fake messages, sending 100,000 delivery failures back to IBM. Both companies have e-mail outages from the load. Microsoft sues IBM for interfering with its e-mail systems -- because the messages appear to come from IBM. - Someone uses my servers to send offensive messages, or ones with viruses, to a number of addresses. Since the messages appear to come from my servers, I get sued. Typical solutions to Problem #3 1) Spend time and money making sure my systems are secure. Again, the "arms race" issue applies. 2) Sue the spammers, where they can be detected, located, and served. (AOL has done this with some success. I believe both Virginia and California have passed legislation along these lines -- basically requiring a valid return address and a way to opt out of messages.) I think Problem 3 is the most interesting. We might look at liability for spam -- as an ISP; as a company with insecure systems (a sort of "contributory negligence"); as a direct marketer / spammer. We might think about existing decisions on this type of liability and legislative proposals that exist, and perhaps consider the down side to such restraints. Are there First Amendment issues? Will such restrictions chill legitimate marketing and advertising via e-mail, especially in ways that standard snail mail is not constrained? Feedback on the problems outlined above, other fertile areas for research, or other suggestions would be welcomed.
Internet Jurisdiction is a topic in which there is a lot to say and a lot to be written about. I understand for jurisdiction as the extend of territory in wich an authority has the power to apply the law. In my work paper I would talk about who is the authority, who has the power to write and apply the laws that rule the Internet. As I understand there are many organisms involved in this topic, such as the ICCAN, the States in their the power levels (legislative, executive, judicial), private sheriffs, and I imagine there are more that I don’t know yet. I think that being Internet the most globalized system of comunication it should have regulations acording to everybody’s way of thinkig, or at list compatible with everyone. I see the Internet infrastructure almost completely privatly ownned, so I don’t see why the goverments shuld be so involved regulating the internet. In my personal opinion there should be organisms encharged in controling the internet, but I don’t see how this could be achieved without greedy people involved in these organizations. In my final paper I would detail how Internet Jurisdiction is defined, and I’ll come with a propousal on how Internet jurisdiction should be organized.
The use of someone's face is an important constitutional right. Currently, I believe, copyright law only prohibits the commercial use of someone's face (or, likeness, in legal-speak) without permission. This protects people from wrongly being associated with a product they do not endorse. Under the fair use doctrine, newspapers have the right to publish anyone's likeness without permission. This goes to the heart of being able to editorialize an issue. I disagree with Rebecca's sentiment that "I do not believe that anyone has the right to … take pictures from a distance, and then post them on the Internet." Libel and slander are already criminal offenses, thus any postings of pictures must be without malicious intent to defame. Obscenity is also limited, through the Communications Decency Act and Miller v. California (which established the "Miller Test"). Thus, much of the speech that is not proscribed is either non-controversial or political in nature. Furthermore, photographs complement much of this political speech; Rebecca would have Congress take away this right to enhance speech. Past the chilling effect that Rebecca's restriction would have on editorializing, if her proscription were deemed constitutional it would open the doors for extremely dangerous legislation. If one cannot use another's likeness without permission, then why is one able to use another's name? Using arguments analogous to Rebecca's, it could certainly be argued that people ought not to have the right to speak of others on the Internet without permission. This prohibition would run exactly counter to the spirit of the First Amendment. Similarly, under the First Amendment, publishing non-commercial, unsolicited pictures should be legal. One specific component of Rebecca's argument also discomforts me. She argues that the pictures of women walking clinics are different than those of basketball games because the former is private and the latter is public. People getting out of their cars in an open parking lot do not, as the courts say, have a "reasonable expectation of privacy" (Katz v. United States). Once inside the clinic, I would agree that people can assert their rights to privacy, but there are no pictures of women inside the clinic on the web site. I completely agree with Rebecca on the subject of new public policy. Either the state legislatures or the courts are likely to act before Congress. Congress likes to have states experiment with new legislature before it embarks on charting a new course for the entire nation. The courts will also take the lead on this issue, as people photographed at the clinic will assert that their rights have been violated. This will force the issue upon the courts, which will then (hopefully) provide guidance to legislatures.
Response to Jeffrey Leven Hi Jeff, I also approached this problem by thinking about what an individual plaintiff might do. I came to the same conclusion you did that under most theories (tort, defamation, libel), they would have little chance of recovery. The theory that struck me as most convincing was privacy – does this site get “fair use” media exception or not? Regardless, if privacy is an individual’s main concern, bringing suit is not always a great idea (more publicity), AND it’s costly, time consuming, etc. I do not think however, that the only alternatives are drastic ones such as banning non-permissive photos or handling issues on a case-by-case basis. I’m not sure it would really hamstring the press that much to prevent photographers from taking pictures of non-public figures at medical facilities (or on the grounds of these facilities, i.e. parking lots). I’m a fan of privacy – personally I’d advocate this even without the abortion clinic crisis. The problem with a case-by-case approach is, as you pointed out earlier, there is little incentive for individuals to bring suit. I agree entirely with you conclusion that they would probably not prevail on any claim now. Even if they could prevail, they might stand little to gain. Therefore, I would support a law that would more narrowly tailor the “fair use” exception to privacy, or a more narrowly define “media”. In coming years there may be a mass proliferation of privately run web-sites that post individuals pictures and claim they are entitled to “fair use” media protection. Sorry for the late response! Best, Lauren
As a Representative of yahoo I must contest the ruling of the court because it is impossible for yahoo to filter the online content in France. yahoo is an American corporation and is governed by American law. French law does not apply to Yahoo as yahoo does not do its business in France. American First Amendment Rights would be infringed if Yahoo were made to restrict its content based on a foreign edict. As a solution, France may choose to block Yahoo on its isp providers or place their own filtering agent in place. this is not the responsibility of yahoo to abide by the laws of all foreign lands, if it were then the free disemination of knowledge would not be possible as the most restrictive regimes would take action to limit American companies and web sites
I’m not sure if agree with you that one of the problems with this website is that it invades the privacy of some people. From what I can tell, these pictures were taken of people while in public, and on their way to or from the clinic, and I’m not sure that you have a right to not let people know where you’re going. The fact that that information has been put up where it’s available to the entire world clearly makes it a very uncomfortable situation, but I don’t think it’s illegal. I think it has to do with the lack of any expectation of privacy while you’re out in public. Yes, it’s possible that his webpage could be used by people like Clayton Wagner to locate victims. Indeed, it seems pretty clear, if his story is to be believed, that Clayton Wagner has noticed his website, but it doesn’t seem as though there’s all that much of a threat that people are going to use this website as a source for targets (especially when there are sites like the Nuremberg Files out there). It’s not a great defense to say that there are sites out there that are worse, I know, but I don’t think that that’s the major threat behind this website. What I do think is the major threat is exactly what he indicated on the website. That it will deter people from getting abortions for fear of being embarrassed or otherwise singled out by people they know. And while I don’t think that it rises to the level of force or threat of force, and is therefore not proscribed by the Freedom of Acces to Clinic Entrances act, it seems like Congress, as you noted, is still the legislative body of choice to make a law prohibiting these sorts of websites. As you noted, the pictures can be seen by anyone in any state, which seems as though it would make state laws ineffective in dealing with a website of this kind, as one could simply run the website from a state without those laws, or with more lenient laws. For the law to be effective, it would have to be a nationwide law, so Congress has to do it. You also bring up another interesting point when you note that anyone can send in photos. If, for example, you wanted to be mean to someone, you could simply take a bad picture of them leaving their house and claim that it was a picture of that person leaving an abortion clinic. If that person, or their friends or family, were anti-abortion, you could certainly damage their reputation and harm them in that way. This site is certainly open to abuse, and perhaps recklessly posting pictures with no inquiry into their validity is another way that this site might be violating laws.
This comment responds to Derek Dailey’s post arguing in favor of Yahoo. As someone whose last name begins with M, I would like to offer a few counterarguments from France’s point of view. First, Derek contends that “by making the offending materials unavailable through the Yahoo France websites,” that Yahoo has complied with the laws of France “to the extent possible with current technology.” I believe there is, actually, technology that would enable Yahoo to more precisely filter the origin of its visitors; the more pertinent question, then, is how much of a burden it would be for Yahoo to implement that more advanced technology. And it seems that there are at least some things that Yahoo could do that would not represent much of a burden at all (e.g., ask sellers of Nazi artifacts to check a certain box, then block all clients from the .fr TLD for those items). Derek points out, rightfully, that a “partially-effective” solution (like the one I describe) would not stop those who those French citizens who were determined to circumvent it. But it only need stop enough French citizens to outweigh the small cost of implementation for Yahoo. This is Zittrain’s “bovinity principle,” or, put differently, the distinction between “perfect” and “effective” control (as described by Lessig). Derek, like the California district court, worries about the specter of an Internet that has been reduced to the lowest common acceptable worldwide denominator (e.g., no bare ankles for fear of offending web surfers in Tehran). But there are corresponding slippery-slope type worries in the other direction: imagine an Internet in which the laws of individual nations are flagrantly disregarded (e.g., if the U.S. doesn’t enforce our hate laws, we won’t enforce their IP laws). This is a world in which the peoples of different nations have been robbed in some significant ways of the power to self-determine the values by which their societies will be governed. Obviously, neither Derek’s scenario nor mine is what we want. I think the right answer leads us to the idea of comity, reasonableness, fairness: a sort of international “you scratch my back, I’ll scratch yours.” If it is not unduly burdensome (and I argue it isn’t) for Yahoo to exert just a little more effort here, then why not make them do it, and assume that Yahoo (or at least the U.S.) will reap the rewards of reciprocity someday?
France has the right to regulate only companies that are operating in France. Yahoo France, a subsidiary of U.S.-based Yahoo, is such a company. It would be unlawful for Yahoo France to auction Nazi memorabilia in France, and the French courts would be duty bound to impose sanctions on it. However, the judgment at issue in this case was entered not against Yahoo France, but against its U.S.-based parent, Yahoo. The French courts say that they have jurisdiction over Yahoo because its website can be reached in France. This claim has no merit. The French courts were understandably upset over Yahoo's auctioning of Nazi memorabilia, which offends French mores. However it is improper--and indeed not possible--for French courts to hold American companies to the laws of France when they do not operate in that country. If the French are offended by Yahoo's site, they can create legislation or technology to block it in France: the French government, not Yahoo, bears the responsibility of putting technology in place to block the offending auctions. All that was at issue in Yahoo's request for a summary judgement in federal court was whether France can have any jurisdiction over an entirely U.S.-based company. Naturally, it cannot. It is black letter law that another country's court orders are not enforceable in the United States. At first the Internet appears to throw in a new wrinkle, because information posted on the Internet is accessible everywhere, but in fact it does not change the picture at all. If a country that holds freedom of expression in low regard, wants to block Internet content, it can do so. But it is not the job of the United State's courts to do that nation’s dirty work. (Perhaps the conflict of laws questions presented by the Internet will finally teach European countries of the importance of protecting free expression.) Enforcing the French court order would stifle speech on the Internet, allowing only speech that would not offend in the most restrictive countries on earth. Essentially all expressive content would end up being banded because some country, somewhere outlaws just about everything. This, however, is not the real evil of a ruling in the French court's favor. Enforcing the ruling would affect a total breakdown of U.S. law, by allowing foreign courts to effectively write it. When a French court can tell a U.S. company operating entirely in the U.S. what to do, U.S. loses nothing less than its sovereignty.
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Whereas I do believe that Hamidi was wrong to send all of the emails to intel, I don't believe he should be found guilty. If they claim that bhe broke the tresspass to chattles, it will set a huge precedent and totally break the first amendment. However, there could be some type of legal case made against Hamidi. Perhaps he could be charged with some sort of harrassment. Perhaps they can show how his harrassing the employees kept them from doing their daily tasks. As the law now stands, he did not do anything legally wrong. Though I do believe he treated Intel unfairly.
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Yahoo arguments are based on three points: ·The Yahoo website where the stamps to honor Hitler’s 54th death anniversary were sold, is Yahoo.com and not Yahoo.fr. The website is in English and it targets American people therefore it has to respect American laws, while Yahoo.fr respects French Law. Moreover Yahoo.com is based in Santa Clara, California and so, being an American firm, it should abide by the American Laws, not the French ones. ·The First Amendment of the United States Costitution provides: “Congress shall make no law (…), or abridging the freedom of speech, or of the press (…)”. Under American Laws, Yahoo is free to sell or to voice different expressions of viewpoints associated with every particular political slant, including Nazism and anti-Semitism ·From a practical point of view, a website cannot be subject to the laws of all the countries in which users who access it are located. Every country has particular laws, and it is practically impossible to respect all the different laws, first because this would restrict the decision-making rights of the web managers and second because many potential conflicts between different laws could arise. As there is no an international law regulating behavior on the Internet across the world, in my opinion every website should respect only the laws of the country where it is legally based and of the countries where its target users live. If Yahoo.com were ruled to have to respect a French order, US sovereignty will be violated. This is a very dangerous precedent, because many websites could come under attack and this would limit not only the freedom of expression on the Internet but also the potential of its commercial applications. If every website had to conform to all the possible commercial rules of all the country in the world, it would be paralyzed and this would do a great harm to the economic development of an important sector of the world economy. In the absence of a specific international law regulating the Internet, I think Yahoo.com’s reasons will prevail.
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I agree with Sally's (Sally Ha) points. The burden on Yahoo!, and all other content providers, would be extraordinary if this case were to be decided in favor of France. It would establish the precedent that the laws of all nations apply within the borders of the US, at least when activities originating in the US extend into the other nation. While the burden on large, commercial content providers like Yahoo! would be great, they would probably be able to bear the costs. But what about all the individuals who create web pages expressing their views? They wouldn't be able to afford the legal staff necessary to monitor the laws of other nations and wouldn't have the technical expertise to censor their sites to be in compliance with the laws even if they could. It would create a situation where the laws of another nation would infringe on US citizens first amendment rights. Because of the huge financial and civil rights burdens a decision in favor of France would create the case should be decided in Yahoo!'s favor.
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The Case for Yahoo! The French government presents a very persuasive and legitimate argument in this case. Protecting its citizens from material it has deemed to be harmful, racist and therefore illegal, is an important right. The question arises, however, to what extent are foreign companies required to protect these interests? This inquiry is easier to answer when companies are more clearly operating or doing business within foreign jurisdictions. Internet companies such as Yahoo! create new difficulties. In these situations, the most feasible answer today is to rely on the jurisdiction of the “home” country. To do otherwise, would establish a perplexing and crippling legal environment that could seriously halt the development of the Internet as a whole. Under the traditional notions of international law, foreign governments cannot exercise jurisdiction over the citizens of other countries without sufficient contacts to that nation. Yahoo! has a strong argument that it has no “contacts” whatsoever with France. Simply being accessible to French citizens via cyberspace is only a tenuous connection. This theory would support the idea that every website ever created in any country should be subject to the local French laws, a most surprising conclusion. Yahoo’s position is arguably strengthened because it has complied with the French laws on its site that is intended for French viewers. An alternative argument can be made that the laws of cyberspace exist distinctly separate from tradition concepts of sovereignty. As many scholars have argued, territorial boundaries are not always appropriately applied to internet companies such as Yahoo!. If we view cyberspace existing as a “place” with its own developing laws, the local laws of various sovereigns should not apply in every situation. Perhaps the simplest and most important reason why Yahoo! should not have to comply with the laws of France in this case is Yahoo! is a U.S. company first and foremost. Companies in any country need to be able to rely on the laws of its homeland in order to foster stability and legal certainty. Forcing Yahoo! to comply with French law would necessarily extend to requiring compliance with the laws of every foreign nation. The laws of China could potentially force the company to prohibit internet searches on the Falun Gong religion. The laws of Iran could potentially force the company to censor searches of pornography. Forcing an internet company to take active measures to comply with foreign laws where its website can be accessed would crimple new companies with smaller budgets. It would be much simpler to allow internet companies to rely on the domestic laws where they are located. The alternative consequence would be stifling to the growth of this important medium of communication. The question of who will prevail is difficult to answer because that depends on where the case is brought. Under French law, the ruling of the French judge is likely to be upheld. The same is true of the American federal courts. If this case could be decided by a larger international court, I think Yahoo! would likely lose. Nicholas Brown
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If your last name starts with A-H, pretend that you represent Yahoo. Give your most powerful reasons why you shouldn't have to do want France wants and explain what terrible thing will result if you do? Who do you think will prevail? The French court's ruling would be setting up a scenerio wherein each nation makes certain demands on web portals based on their cultural preferences. Taken to the extreme this could give enormous power in the form of information regulation to whomever got to decide in each country what was to be banned. Even if we needn't go to this extreme, serious problem arises as to the administration of the french demand. Machines can be reconfigured to appear to be located in another country. A better way to handle the situation is self regulation. Though contrary to the French law, it can be said that French citizens have to go out of their way to get to the sites at the source of this dispute. Yahoo!'s french site does not carry the sites in its listing. So, french citizens have to go to the American site to get the material. If these people are motivated enough to go to the American Yahoo! site to fing the nazi site they can also find similar sites by simply guessing at their names. The French court is just pushing this case against Yahoo! be because it has a shot at enforcing the judgement on Yahoo! because Yahoo! operates Yahoo.fr. Unfortunately for the French court, even if it succeeds it closing this narrow avenue to Nazi/racist information and products, any remotely web savvy operator can get to the information with only a few extra clicks. This last point seems to point to a French court that either does not understand the structure of the world wide web or a court that is just simply attempting to make a political statement. In the end the French ruling is of little use to anyone. I do not think the French court will be successful in forcing Yahoo! to block the sites from French users. Yahoo! may do so voluntarily, which would seem to be the best of all solutions as long as it doesn't cost Yahoo! large amounts of money. In the long run it is best for Yahoo! to come up with a standard operating proceedure for situations such as this. If Yahoo! shows that it will bow to the demands of France, I would Imagine other nations would attempt to get similar concessions. I am of the opinion that countries should be able to request that companies like Yahoo! only list sites that comport with local law. Countries should be able to control the evolution of their culture by popular vote. A large part of the evolution of culture is the control of information. If a country doesn't want certain information to be freely accessible then that decision should be respected. If it is not respected then the multinational corporation should be on notice that the offended nation will use all tools at the disposal of its courts to enforce its decision.
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If your last name starts with A-H, pretend that you represent Yahoo. Give your most powerful reasons why you shouldn't have to do want France wants and explain what terrible thing will result if you do? Who do you think will prevail? Knowing that Yahoo Inc. is an American company, it's activities are regulated by the US Constitution, and it follows the agreements of the First Amendment. Therefore it can't be regulated by the Constitution of other countries, while being an American Company. French judge Jean-Jaques Gomez states that Yahoo, Inc. is infringing the French law by auctioning Nazi and racist paraphernalia and has ordered Yahoo Inc. to remove this material from Yahoo France Portal, and to block French users of entering to the auction site that includes the mentioned racist material. What is a fact is that Yahoo Inc. responds to the Constitution of the United States of America, and under the First Amendment, it is permitted to sell or exhibit these articles, due to the Freedom of Speech. The Yahoo.com Auctions website is not intended, in first place, for French users, but for every user of the Yahoo Portal. The exhibit and sell of articles such as Nazi paraphernalia is not placed under racist articles but under collectible items. The main objective of Yahoo.com is not, in this particular case, to expand racism, but to provide a service by respecting the Freedom of Speech. This is why Yahoo, Inc. shouldn’t abide the French judge’s request. The request is anti-constitutional, and not feasible. The removal of the link in the Yahoo.fr Portal may take place, but Yahoo, Inc is in lack of technology capable of blocking a 100% of French users who intend to acquire collectible items - “racist artifacts”, as described by French law – in the Yahoo.com Portal which is the American website. In the worst case if Yahoo, Inc tolerates, and accepts the French judge’s request then Yahoo, Inc. will be infringing the Civil Rights of the users (“A civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury. Examples of civil rights are freedom of speech, press, assembly, the right to vote, freedom from involuntary servitude, and the right to equality in public places. Discrimination occurs when the civil rights of an individual are denied or interfered with because of their membership in a particular group or class. Statutes have been enacted to prevent discrimination based on a persons race, sex, religion, age, previous condition of servitude, physical limitation, national origin and in some instances sexual preference”. – www.law.cornell.edu -) which is determined as Discrimination or in other words a manifestation of RACISM. If the French judge’s request prevails, Yahoo, Inc. and all other Internet companies, worldwide, would have to re-state the content and information of their websites, in order to follow the requests of each Nation. I personally believe that this case is the first step for the institution of Internet regulation for every country, lets not forget that France is a member of the European Union, and if an Internet Regulation is accepted in France, it would be accepted in the whole European Union as well, which would lead Internet companies to re-structure their Portals if they want to prevail in the global business context. This can be regulated via the ISP’s in each country.
Yahoo feels that France’s court order against the selling of Nazi paraphernalia does not intervebe with our goals at Yahoo. While Yahoo will and would not purposely disobey the laws of France or any other country, they cannot assure all information traveling through the intenet and our servers is fit for all preferences. Since Yahoo is a US based compnay they must follow the laws of the US and the internet as a public domain. Yahoo does cross many cyber boarders, and while they do aim to please all users, they can not accomodate every country's wishes for the information they would like them to prohibit. Yahoo has obeyed the french laws, and unless US creates the same law they are not bound to change other versions of Yahoo.
John Carter Assignment due 4-8-02 #9 I think that Hamidi should prevail until it is proven that his intent is to harass. If it can be proven that Hamidi’s intent is to harass Intel and divert Intel employees from productive work, Intel should be able to get an injunction to stop him. However, six emails in two years are not what I would consider harassment as long as his statements are true. Though annoying Intel can not stop Hamidi from emailing its employees expressing grievances about employment conditions at Intel. If Intel wants a closed circuit communications system then it should install one. As long as Hamidi’s emails are not harassment, they could in a stretch be viewed as planting seeds for collective bargaining for the work force. Intel can not selectively censor incoming email that is merely annoying than it can stop the USPS from delivering “junk mail.” Per an archive document from Electronic Frontier Foundation dated November 24, 1998, the preliminary injunction to cease and desist was not specific to the restriction of the emails to the employees but so blanket that it precluded Mr. Hamidi from calling Intel tech support about an Intel product. As long as what Hamidi is saying is true and non-threatening, he should be able to send emails.
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First of all, I agree with Eva that unsolicited mail should not automatically be treated as “trespass”. Moreover, I believe that trespass should be redefined with regards to its application to global public networks, such as the Internet or the PSTN (Public Switch Telephone Network). The Internet is a public network, albeit with many private components. Regarding the private components, the burden to protect these private systems lies with the person who decides to place them on the Internet. Trespass on the Internet must not merely be the process of accessing a publicly available server to perform a function that the server was designed to do – unless what is being done it itself illegal. For example, the act of accessing a publicly available email server and uses it to send an email message to a friend should not be considered an act of trespass, whereas accessing the same email server to send commercial spam might be construed as trespass. Conversely someone cannot be taken seriously if he/she runs a public web server with a no-trespass warning if they do not taken additional means to secure their website – since the act of merely reading the information they choose to place on the Internet is not illegal. What Hamidi is accused of is also not illegal – but Intel claims that merely accessing their servers is. This is clearly not the definition of trespass that I believe to be appropriate for the Internet. This is as if someone in a public park can expect freedom from being spoken to by other park-goers. Intel should not be able to place their servers on-line, make them available to the public for exchanging email, allow employees personal use of email, AND consider the act of accessing one of their email servers an act of trespass. It is true that our judicial system has shown great respect for the protection of private property, but it has also recognized that “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” (Marsh vs Alabama) I therefore disagree with Eva’s contention that Intel should have certain rights over email just because they provision the accounts. Each of those accounts in a sense also belongs to one particular Intel employee during their employment. They can be used for personal communications. In this situation, Intel cannot be given the right to dictate to their employees how or with whom they are to communicate. They should not be able to arbitrarily deny employees from important information concerning their rights or privileges as employees or prevent them from discussing work conditions at Intel. It is with regards to this point that I think it is important that Eva drew a distinction between commercial spam and more substantive speech. This distinction is also important as it preserves the right of ISPs and companies to do their utmost to block spam. However, even taking part in junk email filtering should be a decision available by the end user.
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This comment is in response to Anthony Long. I thought it made a lot of sense to look (as Anthony did) at the sixth email differently from the first five. My understanding is that when that which is allegedly trespassed has been opened to the public, the revocation of that invitation with regard to the “trespasser” is a critical element under the common law of trespass. I am less sure, however, about another key element of the trespass tort, namely that of damage to the chattel. In the cases cited by the Superior Court (Thrifty-Tel, CompuServe), there was some demonstrated burden (and therefore decrease in value) on the chattel (the computer system) that was being trespassed. Was the alleged damage here really damage to Intel’s computer system? An example will make this point even clearer. Suppose I want an enemy of mine to stop visiting the public web page that I am serving off of my computer at home. I tell him to stop and go to great lengths to program the web server so as to keep him from visiting, spending so much time, in fact, on the programming project that I start billing fewer hours at work. He visits again. I have lost wages that I wouldn’t have if I didn’t own the computer, but can we really consider that to be damage to my computer resulting from his “trespass”? On a broader level, I agree with Anthony that Hamidi’s behavior may well be characterized as harassment, plain and simple. But “harassment” per se is not a legally cognizable offense. To use another example, if I incur expenses due to the fact that picketers are exercising their First Amendment rights on the public sidewalk in front of my store, I am certainly harassed, but the picketers are privileged in their activity (in Hohfeld’s sense of the word), and hence I have “no right” against them. Finally, I think Anthony is right to inquire into the lengths to which Hamidi went to circumvent the company’s security measures. Was this illegal hacking? In particular, it may be that Computer Fraud and Abuse Act (see 18 USC 1030 and especially 5(c)) has some grip here; did Hamidi intentionally and without authorization access a computer used for interstate communications, thereby impairing the “integrity” of that system to the tune of at least $5000? There is a colorable argument there, I think, but (of course) we still have the entire First Amendment hurdle to clear. If there is state action here, and Intel is imposing a viewpoint-based restriction of speech (that is, by only restricting speech that condemns Intel), then it seems Intel’s case still wouldn’t quite make it.
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I have been browsing the Internet for a lot of different kind of cyber security nightmares, till I found an article in the pc world web page that captured a lot my attention “Protect Technology, Says Cyber security Czar: Government, industry urged to shell out and ramp up infrastructure against cyber terrorism.” http://www.pcworld.com/news/article/0,aid,70264,00.asp This kind of nightmare that can affect a whole country and it’s denominated by cyber terrorism. If cyber security does not take place, a whole system could be in danger. “U.S. cyber security czar Richard Clarke says cyber attacks on the nation's critical technical infrastructure could potentially cause "catastrophic damage to the economy" and urged more spending on IT infrastructure and security.” The idea in this article is to reduce the anonymity on the Internet in order to have more safety on the Net. But this could be a problem because it disadvantage the hole point of the Internet, and could cause uncertainty on costumers you do business on the Internet Could it be that necessary to be hard on cyber security? Well since the September 11 terrorist attacks, there has been a concern of reinforcing cyber security. If there were a catastrophic damage on this system, the damage would be so big that it could represent the crashing of 767 buildings. This article explains how national security could be if risk if the system is crashed. Think of all the operations that are managed by NASA, the Pentagon, the CIA, etc.
Alexander Mittendorf - Week # 11
The Honorable Judge Jackson, I had one question regarding your proposed breakup remedy. Did you honestly believe that such a decision, had it not been overturned, would have been the market intervention necessary to have more open competition and fewer "bad" monopoly practices? As the Zittrain article discussed, both vertical and horizontal breakups have problems. For example, horizontally, how did you determine along what application lines the company should be split? What do you do about tightly integrated products? Furthermore, since the networked effects remain whether there is one or two companies, what makes you think that the two resulting horizontal companies would not rejoice in non-connubial bliss and reap the natural benefits of "network effects" without any claims of monopoly being leveled? In the vertical direction, how would you guarantee that one company would not get the advantage and then we'd be right back where we started? thanks a lot, alex
If I could ask Judge Jackson a question about the Microsoft case it would be to know if he actually thinks that breaking up the Microsoft Company would really eliminate a monopoly? Meaning that by the preferences of the users of the Microsoft technology, on the real market things could remain the same. Because I don’t know how could he be able to make the appropriate decision to define the use of the actual technology? I think that this case should be focus on the reasons why an antitrust law was created, and continue from there.
Judge Jackson: You knew the ethics rules? Why did you go talking to The New York Times and Ken Auletta, waxing poetic about how much you hated the litigant in a case you were still hearing? You set justice back five years!
Judge Jackson: I am a bit curious as to your selection of and reaction to outside advisors chosen to contribute to the resolution of the antitrust case. In particular: 1. Lawrence Lessig: Given his public statements regarding corporate control of the Internet, were you at all concerned with any possible anti-Microsoft biases he might bring to the table, either consciously or (more importantly) unconsciously? Which other experts did you consider for the position of Special Master? 2. Judge Richard Posner: Once mediation broke down, Judge Posner indicated that he felt that the government had been overly affected by Microsoft's competition. How did Judge Posner's reactions affect your perception of the case. Do you think Judge Posner brought any conscious (or unconscious) biases to the table? Which other figures did you consider for the role of Mediator?
I would have like to ask Judge Jackson, how did the evidence of Microsoft contempt of his orders affected his attitude to the case and his subsequent actions.
http://rr.sans.org/hackers/lights.php This was an article, written on September 26th, 2001, about the possible vulnerability of the U.S. power grid to attack. Not only does it present several possible ways in which the security of the power grid could be compromised, it talks about a few different times when the security of power grids has in fact been compromised, including the 1997 “Red Team” of hackers discussed in our reading. First of all, this article was relatively unique among the articles that I came across in my search, because the vast majority of those seemed to deal with attacks on and vulnerabilities of intellectual property and financial systems, rather than infrastructure. I picked this as the example of the most appalling cybersecurity nightmare I could find because rather than simply affecting money, an attack that crippled the power grid in a major city could place a very large amount of human lives in jeopardy. This was particularly appaling for me, because another example of attacks on power grids and similar systems is the discussion of a series of attacks on a large portion of California’s power grid during the rolling blackouts of a year ago. As I was in California at that point (and will be returning there after school) the possible impact that those attacks could have had, had they been malicious, was disturbing. The most striking thing that I noticed as I looked for cybersecurity nightmares was, as noted before, that the vast majority of articles discussing them, even at www.cybersecurity.gov, dealt with economic damage. As a practical matter, that was probably simply because the percentage of hackers with a desire to damage the nation’s infrastructure is very small, and so there are few, if any, actual cases that they can talk about. However, some of it is likely due to the fact that, given how overworked law enforcement agencies are, companies with large amounts of sensitive financial information to protect are forced to protect their own information and systems. While there are certainly parallels for this in the physical world, such as building hiring their own security, the degree to which companies seem to be forced to protect themselves is greater in cyberspace, probably because of the lack of a police presence in cyberspace. There are no police cars patrolling the Internet, and law enforcement only responds quickly when the damages are significant.
Mr. Hu, I agree with you that the "trespass to chattels" doctrine is extremely weak in this case. As you point out, the mere six emails had done nothing to injure or deprive Intel of the use of their servers. I think that an important point that you come close to saying is that the objection is not to the spam-like email but to the particular content of the email and the identity of the sender. You say that Intel could have easily have prevented Hamidi's emails from delivery. I am not technically proficient enough to know how easy it is. The case seemed to imply that Intel incurred large costs in trying to prevent Hamidi's emails and were unsuccessful. I do not know if he circumvented any security measures that they took. Bottom line, my impression from the case was that it was not that easy to do. I do not think that virii is a word. I am guessing that you meant viruses. I think that you are right in contending that a cause of action should only arise when there has been interference with the servers through massive emails, viruses, or other ways that function of the servers can be reduced.
This class covered much more than I anticipated covering and I thought the readings that were assigned on the internet were quite interesting. I was particualarly interested in the case of yahoo vs france. One thing that I still fail to understand is with all the different laws and so many different countries that are using the internet, how will we effectively police the intenet? Is it really ever going to be possible? I wouldn't mind hearing about more cases like yahoo vs france. Think about our countries relations with some countries like Iraq and Iran. We can't even send an American onto their soil to discuss basic human rights issues. I can't ever even imagine a time when we would even BEGIN to discuss things such as policing the internet for child porn and other illegal projects on the internet. Mabey if I saw some more cases like Yahoo vs France I would get a better gage of the situation, but I don't see any answer to this question during my lifetime or even my childrens.
I would ask Judge Jackson what he believes Microsoft could have done and should have done differently. Given that Corporations goals are to maximize profits and that Microsoft did just that while leading the industry in improvements and wealth, how should they have reacted in an unregulated industy. Microsoft developed its own source code and programs which they derived newer versions and in good business sense designed their other programs to integrate with each other seamlessly to create a better working environment and more attractive practice. the technologies that they used were their own design and they alone controled the patents and copyrights, how could this be changed without infringeing on these rights of intelectual property?
Jennifer Greengold - Week # 12
I'd like to understand the future of the First Amendment on the Internet -- I liked our class on harmful speech and I'd like to explore those questions further. How far should/can we go in regulating speech? Does the incredible power of the Internet to cheaply, instantly, effectively reach millions of people worldwide require that we restrain speech more than in other fora? Or does its unique, supranational nature require us to be more hands-off? I think that question requires us to consider the nature of communication online; it it free and democratically empowering, or is it too decentralized and disorganized to be anything but a voice the entrenched, wealthy businesses and government?
Would you have considered, as an alternate remedy to the breaking up of Microsoft into two, ordering Microsoft to open up its source code and make it freely accessible to all computer users, thus, making it come under the category of free software (free as in freedom, not in price) rather than closed, proprietary software? After all, reliability has always been the bete noire of software engineering. In the words of Eric Raymond, " In other branches of engineering, what do you do to get high reliability? The answer is massive, independent peer review. You wouldn't trust a major civil engineering design that hadn't been independently peer reviewed, and you can't trust software that hasn't been peer reviewed, either. But that can't happen unless the source code is open." A case in point is NASA, whose engineers need perfect reliability. Windows' BSOD (Blue Screen of Death) is the last thing they need to contend with when lives are at stake in a rocket that's taking, say, 12 people to the moon. Thus, they use Linux instead of Windows so they can modify the source code to meet their needs.
I want to know why Judge Jackson made disparaging remarks to the press about Microsoft, while the case was still pending before him? If he did in fact view Microsoft as a bully, and wanted to punish it, why would he make public statements that would undermine his power to assess that punishment? He's obviously a bright fellow, and it seems that he should have known that any public suggestion of bias would at best taint the legitimacy of the judge and at worst would serve as grounds for his removal from the case. I wouldn't be satisfied with an admission that it was a mistake to make public statements on a pending case. Judges know that it's crucial to remain tight-lipped about issues pending before them; I can't believe Judge Jackson would simply "forget" this duty in the midst of the most important case of his judicial career. Surely he should have been aware that an appearance of impartiality was crucial for such publicly important case.
During the course I found that the Privacy issue is really important and every time is more in challenge. It is still in debate whether or not the government will have the power and right to search personal accounts. I think that is very difficult to address this issue because there exist a violation of the rights of citizens. For example, the 4th amendment that states the right to be secure in home, things, papers, and effects; protected against unreasonable search or seizure. The government may do these actions but aren’t they interfering with our personal information? Another topic that I found relevant is the practical jurisdiction that any country has to get someone to court or make him or her pay or go to jail. How much power a country has and how they can use this power against another country? The Yahoo vs. the French Court was a case that reflects the kind of problems that the Internet is and will keep on producing. The question is how are they going to fight this problem? How can the countries solve this issue internationally and agree with each country’s standards, rules, and laws? Is it possible to do this? Are the countries willing to give an International Organization such a power? By doing this, the countries may put their sovereignty at risk. These questions were not thought before because I did not have the knowledge of its existence. By reading and attending the lectures, I realize that the Internet is becoming a greater part in our daily lives, and due to this is bringing problems of practical jurisdiction and conflict of laws. It is important to find a solution to this. Marcela Garcia ISO2002
The Internet question that is most on my mind now that class has ended is this: If the control and use of the 'Net is clamped down and ossified (as discussed in Monday's class) could or would engineers and "techies" grow another internet (e.g. like the academic/scientific "internet 2" but on a more broad and deep scale)? If this was done, would there be any way to protect it from simply being included under the coverage of current and future laws (and technologies) used to control the original Internet? Also, would future technologies offer any way to "free the 'Net"? My other burning question (prior to the 4/29 class), is to what extent the lawmakers, judges, etc. who are right now affecting the structure and functioning of the 'Net (e.g., two-way feedback loops and JZ's Janus principle) understand not only the technology of the 'Net, but also the deeper structural implications of their decisions.
Nichole King-Campbell - Week # 13
What questions do I have now that I did not have at the beginning of the class? The first question I have: Is there going to be a part two of this course? For one I felt that there was so much information out there for us to explore that for one there needs to be two parts to this course. Second it seems that everyday there are new interpretations of what can be done on the internet, a class dedicated to this would be fun and interesting. The second question I had is what is my purpose? I found this class to be extremely interesting. It made me feel that I things I imagined in the far reaches of my mind were possible in fact. There was a community service project that I wanted to work on taking this class has made that possible. My third question is where do we go from here. I feel that this is what I would consider a final frontier. This is what I would love to explore and still be able to say what next. It is evolving, expanding and inventing. What next is my question. My fourth question is DO we need to have separate internet law, like constitutional, environmental, civil? This class made me question how I felt about issues that “normally” I would vote another way. But because I believe that certain freedoms cost and maybe at the rights of a few for a greater good of the masses but I’m not sure what price I’m willing to pay. My fifth question is how much is Microsoft needed? Unfortunately I am in conflict with this question partially because I don’t like the stifling of competition. However Americans like things they know. As much as we may dislike the way Microsoft does business we have to appreciate that they standardize things for us. Send it to me in word. We like to have compatible tools so we can communicate easier.
Now that the class is over, I have a very general, very broad, and probably unanswerable question: what will the internet be ultimately used for? In the beginning, I think that the internet had great potential to revolutionize a democratic society, to bring people together, to spread ideas rapidly, to give voice to groups and individuals that would otherwise be marginalized. Which seemed to have done quite well in its initial stages when the number of users was relatively small. Today, with all of the advances in technology and its increasing adoption, there is a backlash from established interests: corporate interests, governmental interests, etc. We are right now in a unique period of history, when not only technology, but innovative developments with potentially great social, political, and economic ramifications is developing at a very rapid pace. I truly believe that the promise of the internet lies in its potential to shape society for the better. But at the same time, there is a trend for established interests to curb this phenomenon in an effort to maintain the status quo… what interests will prevail? Will the internet be a revolutionary means of societal change? Or will society force it to assimilate and become a tool to reinforce the existing structure?
This class has most definitely made me more aware of every aspect of the >Internet. It seems to me as though a very few people controlled the >Internet in the beginning and that the same is true to a large extent now. >My biggest question is what will happen in the future? Who is going to >control the Internet? I assume that many answers could be given to this >question, but would think that the U.S. government and Microsoft would be >the two big powerhouses - perhaps with different agendas?
My question is about the role that legal precedent plays as the Internet evolves: As you discussed in the last class, the Internet is constantly changing. Do you think that that constant change, combined with the relative newness of the Internet means that legal precedent is viewed by many judges as itself evolving, and more malleable and subject to change than legal precedent in other fields? Or do you think that the newness of the Internet means that any legal precedent created at this early stage will be crystallized, because many current judges don’t understand the Internet and would be quick to latch onto any precedent they can find, deferring to other opinions rather than formulating their own? I’m asking this because our case for our FYL Ames involved internet jurisdiction, and it was amazing how quickly the Zippo test, which came from a federal district court, was adopted by many state and federal courts nationwide. I’m not criticizing the Zippo reasoning, but by technological standards, 1997 (when the Zippo case took place) is old, but the legal situation seems more or less the same.
My question is one which has yet to be answered. In my final paper I attempt to reason how and why patent and copyright law should be implemented. Should companies be able to protect code and software from other individuals and companies? if so how do you check for violations and ultimately enfore this regulation?
Have the courts treated the cases spawned by internet, both criminal and civil, differently than evolutionary change in other areas of the law? The courts certainly have had to look at new effects on old concepts. Take personal jurisdiction for example. Courts must come up with an answer as to whether a person requesting illegal information from country X while residing in country Y is commiting a crime in X,Y or both. But is this all that different from the move from the presence-centered view of personal jurisdiction found in Pennoyer to the minimum contacts analysis of International Shoe. Both involve a social adaptation to technology. One might say that Shoe in 1945 helped usher in the era of physical mobility while the internet cases usher in the era of the mobility of information. Does this mean there is a separate law of the internet? Or is it just an organizational scheme, like one could call up all the cases involving baseball gloves? This is not to denegrate the study of new technologies and there effect upon the law. It does seem the old categories have become a bit stale. Some of the distinctions, such as those mentioned in my discussion of personal jurisdiction seem to have broken down. I have not read a completely statisfactory telling of the legal tale of the internet. This may be becaue the story is still being written. Some people are predicting a revolution and others an evolution.
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Technical difficulties? Confused? Questions? Rebecca Nesson