Apr 162014
 

On Monday I filed an amicus brief in a case sometimes referred to as “Garcia v. Google.” The case is really Garcia v. Nakoula, with Garcia being an actress who was duped by the defendant to appear in a film he was making – a film that, unbeknownst to her, turned out to be an anti-Islam screed that led to her life being threatened by many who were not happy with its message and who sought to hold her accountable for it.

There’s little question that Nakoula wronged her, and likely in a way that the law would recognize. Holding him accountable is therefore uncontroversial. But Garcia didn’t just want to hold him accountable; Garcia wanted all evidence of this film removed from the world, and so she sued Google/YouTube too in an attempt to make it comply with her wish.

Garcia is obviously a sympathetic victim, but no law exists to allow her the remedy she sought. In fact, there are laws actively preventing it, such as 47 USC Section 230 and the Digital Millennium Copyright Act (DMCA), and, believe it or not, that’s actually a good thing! Even though it may, in cases like these, seem like a bad thing because it means bad content can linger online if the intermediary hosting it can’t be forced to delete it, such a rule helps preserve the Internet as a healthy, robust forum for online discourse. It’s really an all-or-nothing proposition: you can’t make case-by-case incursions on intermediaries’ statutory protection against having to take down “bad” content without chilling their ability to host good content too.

And yet that is what happened in this case when Garcia sought a preliminary injunction to force Google to delete all copies of it from YouTube (and prevent any new copies from being uploaded). Not at the district court, which denied her request, but at the Ninth Circuit Court of Appeals earlier this year when two out of three judges on the appeals’ panel chose to ignore the statutes precluding such an order and granted it against Google anyway.

Google has now petitioned for the Ninth Circuit to review this decision, and a few days ago nearly a dozen third parties weighed in with amicus briefs to persuade the court to revisit it. Most focused on the method by which the court reached its decision (i.e., by finding for Garcia a copyright interest in the film unsupported by the copyright statute). I, however, filed one on behalf of two intermediaries, Floor64 Inc. (a/k/a Techdirt.com) and the Organization for Transformative Works, intermediaries who both depend on the statutory protection that should have prevented the court’s order, arguing that by granting the injunction in contravention of these laws preventing it, the court has undermined these and other intermediaries’ future ability to host any user-generated content. As the saying goes, bad facts make bad law, and tempted though the court may have been in this case with these facts, if its order is allowed to stand the court will have made very bad law indeed.

For more detailed analysis read the brief and the TechDirt article about it. Additional amicus briefs and relevant case filings are also archived here, and Eric Goldman has a nice summary of the briefs as well.

Feb 202014
 

The following was posted on Project-Disco.org earlier this week:

What would the Internet be without its intermediaries? Nothing, that’s what. Intermediaries are what carry, store, and serve every speck of information that makes up the Internet. Every cat picture, every YouTube comment, every Wikipedia article. Every streamed video, every customer review, every online archive. Every blog post, every tweet, every Facebook status. Every e-business, every search engine, every cloud service. No part of what we have come to take the Internet for exists without some site, server, or system intermediating that content so that we all can access it.

And yet, if we’re not careful, we can easily lose all the benefits these intermediaries bring us. Thankfully, in the United States we have some laws that help ensure they can exist, chief among them 47 U.S.C. Section 230. As my recent paper on the state of the law regarding intermediary liability explains, this law stands for the proposition that intermediaries are only responsible for what they themselves communicate through their systems – not what others use them to say. For example, newspapers that post articles online are only responsible for the content of the articles they publish, not the comments readers then post to them. Similarly consumer review sites are only responsible for the information they supply to their sites, not the user reviews themselves. This same principle also means that people who link to content (as search engines do) are not legally responsible for that content, even if that content should happen to be illegal in some way (like by being potentially defamatory).

The reason Section 230 has been so helpful in allowing the Internet to thrive and become this increasingly rich resource is that by relieving intermediaries of liability for the content passing through their systems it has allowed for much more, and much more diverse, content to take root on them than there would have been had intermediaries felt it necessary to police every byte that passed through their systems out of the fear that if they didn’t, and the wrong bit got through, an expensive lawsuit could be just around the corner. Because of that fear, even if those bits and bytes did not actually comprise anything illegal intermediaries would still be tempted to over-censor or even outright prohibit scads of content, no matter how valuable that content might actually be.

Continue reading »

Jan 182014
 

I wrote the following for the Electronic Frontier Foundation’s blog as part of “Copyright Week” – a push to raise awareness of the key principles that should guide a healthy, constructive, and effective copyright policy.

People sometimes treat copyright law as though it’s a fixed constant in the universe, like gravity. First the Earth cooled, then the dinosaurs came, and then we got copyright. But that’s not the case at all, and it’s important to remember this when we think about what’s gone wrong with the law and how to make it right. Copyright is a relatively recent invention, born out of a particular cultural background and designed to solve a specific problem at a particular point in history. While we might continue to value what it purports to do we aren’t slaves to its precepts: when copyright law no longer ably solves the original problem, or, indeed, when it creates new ones, we need not wring our hands in frustrated woe. If a law has turned into something that no longer works for us then we should feel free to come up with something else that does.

In order to figure out how to move forward it helps to look to the past. Copyright as we know it is only a few hundred years old. It traces its roots to the “Statute of Anne,” a law passed in the early 18th Century England to replace an earlier law that gave the government complete control over everything that was published. Naturally this earlier law led to a great deal of censorship, and the push for democratic reform near the end of the 17th Century led to demands that it be changed to something less stifling to the marketplace of ideas.

The result was the Statute of Anne, a law described as “[a]n Act for the Encouragement of Learning.” While the law it replaced had been designed to limit what knowledge was available to the public by giving permission to publish to just a few publishers approved by the king, this new law was designed to stimulate the dissemination of knowledge by giving everyone the ability to control how what they wrote was published themselves.

The statute did this by granting authors a “copy right” so that they could have first crack at exploiting the market for the works they created and not be at the mercy of publishers who might otherwise help themselves to these works and keep all the profit for themselves. A common rationale for copyright is that people won’t create if it won’t ever be worth their while to, so if we want to make sure we do get a lot of creative output we need a system that makes it at least theoretically economically viable to create.

But as we look at our modern copyright law, the distant progeny of the Statute of Anne, it is worth questioning the assumptions wrapped up in it. For one thing, it’s worth questioning whether and to what extent people create only when there is a profit motive. The reality is people create all the time, even when there’s no guarantee or expectation of ever being paid for it, and often these works can be just as good, if not better, than the ones created by people who are being paid. Furthermore, despite what some advocates for stricter copyright law suggest, copyright has never been a promise of financial success. In fact it’s sometimes been a barrier to it, and there are many authors and artists whose influence and commercial appeal took off only after the copyrights on their works had expired and the public could finally get affordable access to them.

It’s also important to recognize that the Statute of Anne sought to achieve its stated goal of encouraging learning in a way that very much reflected the Western European tradition of disseminating knowledge through the written word, and in response to the monopolistic power publishers had at the time to be gatekeepers over that knowledge. But it’s not the only way to skin this particular cat: in other parts of the world oral traditions and norms that encourage copying have allowed cultures to flourish in their own local idiom, without the need for copyright. So when we think about this law we need to recognize how much it reflects the unique time and place from where it arose and not deprive ourselves of the lessons of openness these other approaches teach us. Copyright is not the only solution to promoting the progress of arts and sciences, and it should not be treated as sacrosanct and immune to reform of its increasingly rigid rules, particularly when its current form is no longer reliably achieving its desired end.

The idea behind the Statute of Anne, which was echoed in the US Constitution a few decades later, is that society is better off when it has access to as many works of authorship as possible. But as EFF and many others have described this week, the monopolies copyright law grants have gotten broader in their scope and application, longer in their duration, and ultimately less effective, if not completely counter-productive, in encouraging more creativity and enabling the public’s access to the fruits of that creation. The irony is that as a result, like with the period before the Statute of Anne, we find ourselves in a time when government regulation is actually constricting dissemination of knowledge, rather than enhancing it.

But law is not immutable; indeed, the very existence of the Statute of Anne shows how much it can change when it needs to. When, as now, a law no longer fulfills its objectives, it’s time to reshape it into something that does. It’s time to fix copyright law so that it can finally get the job done that it was always intended to do.

Sep 292013
 

This past week California passed a law requiring website owners to allow minors (who are also residents of California) to delete any postings they may have made on the website. There is plenty to criticize about this law, including that it is yet another example of a legislative commandment cavalierly imposing liability on website owners with no contemplation of the technical feasibility of how they are supposed to comply with it.

But such discussion should be moot. This law is precluded by federal law, in this case 47 U.S.C. Section 230. By its provisions, Section 230 prevents intermediaries (such as websites) from being held liable for content others have posted on them. (See Section 230(c)(1)). Moreover, states are not permitted to undermine that immunity. (See Section 230(e)(3)). So, for instance, even if someone were to post some content to a website that might be illegal in some way under state law, that state law can’t make the website hosting that content itself be liable for it (nor can that state law make the website delete it). But that’s what this law proposes to do at its essence: make websites liable for content others have posted to them.

As such, even aside for the other Constitutional infirmities of this law such as those involving compelled speech for forcing website owners to either host or delete content at someone else’s behest (see a discussion from Eric Goldman about this and other Constitutional problems here), it’s also constitutionally pre-empted by a prior act of Congress.

Some might argue that the intent of the law is important and noble enough to forgive it these problems. Unlike in generations past, kids today truly do have something akin to a “permanent record” thanks to the ease of the Internet to collect and indefinitely store the digital evidence of everyone’s lives. But such a concern requires thoughtful consideration for how to best ameliorate those consequences, if it’s even possible to, without injuring important free speech principles and values the Internet also supports. This law offers no such solution.

Jul 282013
 

I was asked to write the “Posts of the Week” for Techdirt this past weekend and used it as an opportunity to convey some of the ideas I explore here to that audience. The post was slightly constrained by the contours of the project — for instance, I could only punctuate my greater points with actual posts that appeared on Techdirt last week — but I think they held together with coherence, and I appreciated the chance to reframe some of the issues Techdirt was already exploring in this way.

In any case, I’ve decided to cross-post my summary here, partly because I always like to host a copy of my guest blog posts on one of my sites, and partly because it gives me a chance to update and annotate those ideas further. Please do go visit Techdirt though, which was kind enough to ask me to do this, to read more about the items described below.
Continue reading »

Jul 072013
 

There is so much to say about the emerging news about the data capture programs run by the NSA it’s hard to know where to begin. Part of the issue is that there are multiple programs and multiple statutes in play, and details about everything are continuing to emerge, which makes analyzing any respective legality complicated. Ostensibly some of these programs may in fact be “legal” under some of these statutes, although there are credible arguments that many of these programs transcend even what these laws might purport to authorize.

But even if these programs are consistent with either their enabling statutory language or previous Fourth Amendment case law, it is not at all clear that they are consistent with either the spirit or bare language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Over time, on a case by case basis specific to the facts before them, courts have whittled away at what we might understand the Fourth Amendment to protect. Which is unfortunate, because on its face it would appear to protect quite a bit of personal privacy from government intrusion, except under very narrow circumstances. But as we learn more about these surveillance programs we see how, even if “legal,” they intrude upon that privacy, and in a way that essentially destroys all vestiges of it for everyone, criminal (or foreign) or not.

Which is what the rest of this post intends to focus on, albeit in a more humorous than purely analytical manner. But such flippancy shouldn’t discredit its overall point, and indeed, humor is often an excellent vehicle for illustrating policy shortcomings. In this case what follows highlights the problem with Section 215 of the Patriot Act, a post-9/11 law that allows government authorities to access, without a warrant and only with the questionable oversight of the itself apparently unaccountable Foreign Intelligence Surveillance Court, all sorts of “tangible things.” By accounts, it seems the NSA has used this provision to underpin at least one of its programs.

Because everything this court does is shrouded in secrecy, no one knows exactly what “tangible things” applies to. But we can make some reasonable suppositions, and the following articulates a few of them. Sung to the tune of The Sound of Music’sMy Favorite Things,” here is a modern update:

“My Tangible Things.” Continue reading »

Jul 032013
 

I was saddened to hear the news about Doug Engelbart’s passing. Although most famous for having invented the mouse (I once had the privilege of holding the original – in some ways it was even better than its successors, as its two beveled wheels allowed the mouse to easily be drawn in a straight line), his contributions to the digital world we now take for granted run much deeper than that specific innovation.

I had the privilege of meeting Mr. Engelbart on a few occasions, and in the wake of this news I’m prompted to repost something I wrote a few years ago following one of those encounters, something that contemplated how law and innovation so often seemed to collide in a way deleterious for the latter. As we take this moment to recognize the rich legacy Mr. Engelbart leaves the world it should remind us to never allow law to deprive the world of other such gifts in future.

In early December I attended the “Program for the Future,” celebrating the 40th anniversary of a seminal event in technological history: Doug Engelbart’smother of all demos.” While today the technologies he showed off in his 1968 presentation must seem ordinary and quaint, back then they were revolutionary and laid the foundation for what we now take for granted.

While perhaps most widely known for being the world debut of the mouse, which he invented, Engelbart’s presentation is most notable for how it advanced collective intelligence. What made the presentation so important weren’t the technologies themselves but the human problems they stood to solve.

So in celebration of Engelbart’s important contribution to the world, a group of futurists and technologists gathered together at The Tech museum in San Jose to contemplate the future innovations yet to come. Personally, for me, the event was a bit nostalgic. Before law school, as a technologist in Silicon Valley, I often attended such events. Sometimes they got a bit silly, as there’d be so much “blue skying” and thinking about what could be done that nothing would actually get done. But these kinds of events were still important and because they fostered an environment where the bolts of inspiration could be seized upon and fanned into exciting innovations.

I still gravitate towards technology-related events, only today they are invariably legally-related. At these events technology is always considered in the context of regulatory frameworks, and the people doing the thinking are always lawyers and policy makers. Notably, however, at this event I was only one out of maybe a handful attendees who was a lawyer. And therein lies the disconnect.
Continue reading »

Jun 172013
 

Many posts here talk about laws that criminalize technology use and development. But what happens when there is no law criminalizing that use or development, but it is nonetheless prosecuted? We are seeing that happen in California with state Attorney General Kamala Harris proudly crowing about the arrest and indictment of three brothers for “conspiracy,” “receiving stolen property,” and “grand theft” as a result of running a website that allegedly allowed users to watch movies and TV shows. The only problem: there is no law in California empowering Harris to prosecute any of what she claims the brothers did. There is no law anywhere that does.

True, California has laws on the books regarding conspiracy, receiving stolen property, and grand theft, but they still don’t enable this prosecution, and a big reason for that is because nothing was actually stolen. It is always a mistake to use the word “theft” to describe what is at most copyright infringement. Theft is a word best left to the actual deprivation of tangible things, not non-rivalrous goods like digital works that, even when “stolen,” are never actually taken away from anyone.

But even if we were to describe the making infringing copies of digital works as “theft,” only federal law can speak to the consequences of having made (or enabled the making of) these infringing copies. This is because the federal law is not actually designating something as property — of the sort which could then be stolen — but instead is granting a series of exclusive rights recognized under federal law that could potentially be infringed, as also defined by that same federal law. With only a few narrow exceptions inapplicable here, the establishment, reach, and protection of these rights falls entirely within the purview of the federal government to both establish and enforce, and, moreover, that same federal law explicitly pre-empts any attempts by the states to do the same.

As attorney general, Harris is charged with enforcing California’s laws, but her enforcement powers are inherently limited to those laws. She has no power to make up laws not put on the books by the California legislature (either because it didn’t, or, as discussed above vis a vis pre-emption, because it constitutionally couldn’t) and then go out and enforce them. But that’s what she’s done here. She might as well have arrested these two men for breathing, which there’s no law in California prohibiting either. Despite there being no law for her to enforce, she nonetheless has had these people arrested, seized their actual, tangible property, destroyed their business in a way arguably no law, but especially not California law, would permit, and upended their lives and the lives of their families by throwing them into this Kafkaesque prosecutorial nightmare. What makes it so especially troubling was that even if these brothers had sought counsel from qualified attorneys before engaging in the acts for which they are now being prosecuted, no attorney would ever have been able to have advised them of such prosecution ever being a risk. The criminality Harris is pursuing is born entirely of her imagination, not through the legislative machinations of our representative democracy, thereby leading to a state of affairs that is incompatible with the notions of due process and fair play our system of justice is supposed to preserve.

Even more unseemly, her press release openly admits to her having pursued these men in conjunction with and at the behest of the Motion Picture Association of American (MPAA), thus making her wrongful exercise of prosecutorial power even more abusive. If what these men were doing were truly wrongful as recognized by copyright law, the MPAA was fully capable of seeking the civil remedy for this potential wrongfulness that copyright law allowed. It did not need to wield the enormous power of the state against these people, and it was chillingly inappropriate for them to have attempted it — and even more chillingly appropriate for the state to have allowed it. Yes, there are certain situations where we do allow private injuries to be pursued and punished by state organs (see, e.g., actual theft of actual property) but copyright infringement has never, for very good historical and policy reasons, been one of those alleged injuries where we left it to the government to seek redress, except in very narrow circumstances. And even in those circumstances, the power to prosecute was left to federal prosecutors, not every politically ambitious state attorney general more eager to score points with future campaign donors than adhere to her constitutional limits with a power-grabbing act ultimately more harmful to society than anything alleged to have happened here.

Jun 162013
 

While originally I intended this blog to focus only on issues where cyberlaw collided with criminal law, I’ve come to realize that this sort of analysis is advanced by discussion of the underlying issues separately, even when they don’t implicate either criminal law or even technology. For example, discussions about how copyright infringement is being criminally prosecuted is aided by discussion on copyright policy generally. Similarly, discussions about shield laws for bloggers are advanced by discussions of shield laws generally, so I’ve decided to import one I wrote recently on my personal blog for readers of this one:

Both Ken @ Popehat and “Gideon” at his blog have posts on the position reporter Jana Winter finds herself in. To briefly summarize, the contents of the diary of the alleged Aurora, CO, shooter ended up in her possession, ostensibly given to her by a law enforcement officer with access to it and in violation of judicial orders forbidding its disclosure. She then reported on those contents. She is not in trouble for having done the reporting; the problem is, the investigation into who broke the law by providing the information to her in the first place has reached an apparent dead end, and thus the judge in the case wants to compel her, under penalty of contempt that might include jailing, to disclose the source who provided it, despite her having promised to protect the source’s identity.

In his post Gideon make a compelling case for the due process issues at stake here. What’s especially notable about this situation is that the investigation isn’t just an investigation into some general wrongdoing; it’s wrongdoing by police that threatens to compromise the accused’s right to a fair trial. However you might feel about him and the crimes for which he’s charged, the very fact that you might have such strong feelings is exactly why the court was motivated to impose a gag order preventing the disclosure of such sensitive information: to attempt to preserve an unbiased jury who could judge him fairly, a right he is entitled to by the Constitution, irrespective of his ultimate innocence or guilt, which the police have no business trying to undermine.

Ken goes even further, noting the incredible danger to everyone when police and journalists become too chummy, as perhaps happened in the case here. Police power is power, and left unchecked it can often become tyrannically abusive. Journalists are supposed to help be that check, and when they are not, when they become little but the PR arm for the police, we are all less safe from the inherent danger that police power poses.

But that is why, as Ken and Gideon wrestle with the values of the First Amendment versus the values of the Fifth and Sixth the answer MUST resolve in favor of the First. There is no way to split the baby such that we can vindicate the latter interests here while not inadvertently jeopardizing these and other important interests further in the future. Continue reading »