Law Professor James Grimmelmann Explains How He Probably Violated The Same Laws As Aaron Swartz

from the and-you-may-have-too dept

We've been discussing the ridiculousness of the prosecution against Aaron Swartz, including the fact that if a federal prosecutor decides to take you down, it's not at all difficult to find something they can try to pin on you, especially when it comes to "computer" crimes. Law professor James Grimmelmann explains how it's quite possible that prosecutors could go after him under the same laws as it went after Swartz. He notes that he used to run the (excellent) blog LawMeme (which we used to link to frequently). After it died, he wanted to preserve many of the articles, and so he wrote a script to pull the articles off of the Internet Archive. While it all depends on your interpretation, he shows how a prosecutor could make the argument that he violated the Internet Arvchive's terms of service -- and that some of the decisions he made in writing the script could be taken out of context to be used against him.

And so I became a bulk downloader. I wrote a Perl script: a simple, 70-line program that exhaustively went through the Wayback Machine, looking for a copy of each LawMeme article. Just like Aaron's script, mine “discovered the URLs” of articles and then downloaded them. And just to show how mainstream this is, I'll add that I built my script around an elementary one that Paul Ohm published in “Computer Programming and the Law: A New Research Agenda,” his manifesto for why more law professors should write code. Paul's script downloaded and analyzed the comment counts on posts from the popular legal blog The Volokh Conspiracy.

[....] take the Internet Archive's terms of service. By using the site, I supposedly promised not "to copy offsite any part of the Collections without written permission." The site's FAQ qualifies this statement a bit, adding, "However, you may use the Internet Archive Wayback Machine to locate and access archived versions of a site to which you own the rights." Again, I was confident that this covered me. But confidence is not certainty. I assumed that no one would care to press the question. After Aaron, is that such a safe assumption?

I can't imagine that the Internet Archive would have a problem with what I did. Recreating lost websites for the sake of the public and posterity is completely consistent with Brewster Kahle's expansive humanist vision of digital archiving. But JSTOR quickly made its peace with Aaron, and that didn't save him. Would Brewster's blessing save me from the wrath of the feds?

As for how to take decisions out of context, how about these:

Indeed, my script waited a second between each download. I didn't want to put too much of a load on the Archive's servers. But a cyber-Javert could describe it as an attempt to evade detection. Then, to get the webpages to display right in the LawMeme archive, I wrote another script to delete the bits of HTML added by the Internet Archive to the pages in its archive. Was that an effort to hide my tracks?

And this, of course, is the crux of the problem. The laws are so broad, and written in such a way that makes so little sense, it's quite easy for a prosecutor who wants to bring someone down to figure out a way to make them look like a felon. That's a very dangerous system. As Grimmelmann notes, the problem won't be solved by a simple fix, but a massive overhaul.

Aaron's Law is a start, but the problems with our computer crime laws, and with criminal law in general, run much, much deeper. The Department of Justice thinks millions of parents who made Facebook accounts for their children are federal criminals. Read the majority opinion in United States v. Nosal and ask yourself whether you've fudged your age on a dating site, or let someone else use your account, or used a workplace computer to check the baseball scores. Judge Kozinski noted, skeptically, "The government assures us that, whatever the scope of the CFAA, it won't prosecute minor violations." Tell that to Aaron's family.

Painted in the worst light, our laws make it so that any of us can be made out to be felons. Off the top of my head, I can't think of how I, too, might be a felon, but I'm sure given some time I could cook up a story for myself as well. And so could pretty much any of you. When you reach such a point, we're no longer dealing with a sensible state and "the rule of law," but a world in which arbitrariness rules, and where a prosecutor with a chip on his or her shoulder can take down almost anyone.

Filed Under: aaron swartz, cfaa, downloading, james grimmelmann

Embedding And Linking Deemed Infringing In The Netherlands; Downloading... Not So Much

from the odd-choices dept

Here are two copyright stories coming out of the Netherlands, one good and one bad. The first is that the Dutch government has rejected an effort to make downloading copyrighted works for personal use infringement. There is, of course, an existing "you must be a criminal" tax on blank media there, which is part of the reason why such downloads are considered okay. Of course, now we only have to wonder how long it will be until the Netherlands shows up on the US's Special 301 report for "naughty" countries who don't follow Hollywood's extreme maximalist positions.

Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.

Filed Under: downloading, embedding, infringement, linking, netherlands

US Government Ups Felony Count In JSTOR/Aaron Swartz Case From Four To Thirteen

from the trumped-up-kicks dept

Not much has been said about the Aaron Swartz case over the past year as the wheels of "justice" slowly grind their way to an eventual court date. Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for "computer activity the US government doesn't like."

Swartz had accessed MIT's computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he "stole" several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it's pretty tough to square his massive downloading with any idea of "theft."

Not only that, but JSTOR was not the entity pressing charges. It had stopped the downloading and secured the "stolen" content, along with receiving assurances from Swartz that the files would not be distributed. Despite this, the feds felt compelled to arrest Swartz and charge him with four felony counts (one each for Wire Fraud, Computer Fraud, Theft of Information from a Computer and Recklessly Damaging a Computer). At this point, Swartz was looking at a possible 35-year sentence and over $1,000,000 in fines.

Whoever's pushing this case must really dislike Swartz and/or his activities. A "Superseding Indictment" (pdf) has been filed, raising the number of felony counts from four to thirteen. Seth Finkelstein at Infothought has a brief rundown of the new charges (h/t to Nate Hoffelder for the link):

There are now 13 felony counts in the new indictment, derived from claims of multiple instances of breaking those four laws. In specific:

Wire Fraud - 2 counts
Computer Fraud - 5 counts
Unlawfully Obtaining Information from a Protected Computer - 5 counts
Recklessly Damaging a Protected Computer - 1 count

It's beyond my pay grade to figure out how many years in prison that all could be, when taking into account the complexities of sentencing law. Let's leave it at a large scary number. Enough to ruin someone's life.

The new filing basically realleges all the original charges but ups the felony count by providing specific dates for each action, turning each marked date into its own felony charge. The allegations refer to Swartz's "repeated" actions as spanning several months, but the feds have pulled some arbitrary dates into the mix to add years and dollars onto his possible sentence. And, again, we have to ask: for what?

JSTOR only showed up because it was subpoenaed and if anyone's the "victim" here, it would be JSTOR. MIT has remained silent on the whole issue. So, either someone's got a deeper interest in this case than they're willing to admit publicly, or the feds found someone with enough "hacking" activity under their belt that they feel comfortable turning the defendant into an "example." Or perhaps this is a belated payback for his thorough gaming of the PACER system during a "free trial" period, something the feds briefly investigated him for back in 2009. It went nowhere as the documents involved were public records, but it had to gall them a bit that he managed to download nearly 20 million pages of text, about 20% of the entire database, before being stopped. (The government likes to collect 8 cents a page for PACER documents, meaning Swartz's stunt "cost" it nearly $1.6 million, assuming you have no idea how to properly measure "costs.")

So, how do the new charges stack up in terms of a sentence? Tough to say. Each of the charges carries the possibility of a fine and imprisonment of up to 10-20 years per felony. Depending on how many of the counts Swartz is found guilty of, the sentence could conceivably total 50+ years and fine in the area of $4 million. All this over publicly accessed research documents that JSTOR doesn't even feel the need to pursue further than it did.

Filed Under: aaron swartz, cfaa, charges, downloading, files, mit, research
Companies: jstor

Officials In The Philippines Want To Criminalize Downloading

from the yeah,-that'll-work dept

We're seeing crazier and crazier ideas for copyright laws lately. First, we had politicians in Brazil looking to criminalize ripping a CD and, now, Richard points us to the news that there's an effort underway in the Philippines to make direct downloading of unauthorized works a criminal offense. Apparently, this is being driven by a government agency, in association with an industry "anti-piracy" group (of course). I'm curious if even our usual critics can defend why direct downloading should be a criminal issue, rather than a civil issue? Do you really think putting people in jail for listening to music will get more people to buy your product?

Filed Under: copyright, criminal copyright, downloading, philippines

Silly Lawsuit Filed Against CBS Because Subsidiary CNET Offered Limewire For Download

from the fourth-party-liability? dept

Late last year, a guy named Alki David, who's known for his publicity stunts, put out a silly video attacking CBS, who was suing a company he ran. The video is long, and not very entertaining, other than demonstrating David's ego. The theory posited by David is so bizarre that we didn't post about the video when it came out. Basically, CBS had sued his company, FilmOn, which let people pay to access his retransmission of TV channels online. It's pretty easy to see why CBS and others believe that a service like FilmOn is infringing. However, David's theory was so out there that it was laughable: he claims CBS is suing him because CBS profits from piracy and doesn't want others getting into the game and competing. No, really. You can see the video here: The logical trainwreck comes from the fact that CBS bought CNET a few years ago, and among CNET's properties is Download.com, which is probably the single most popular place for companies to offer up their software products for download. It's been that way for years. One of the many, many, many software products available to download from Download.com was Limewire, which (as you know) was recently found guilty of facilitating copyright infringement. David's argument is that CBS makes a ton of money from this setup. It doesn't. CBS may make a little bit of money from this, but it's not even a rounding error on CBS's bottom line. This is so far removed from CBS's business it's hard to do more than laugh at the accusations.

However, David has now taken it to another level, and together with some hip hop and R&B artists, is suing CBS for copyright infringement over this same issue. It seems pretty clear that this is a nuisance suit from David, who is upset about the lawsuits against his company -- which seem to have a lot stronger basis in law. I can't see how CBS has liability here. We're not even talking about standard third party liability here. CBS is a fourth or fifth party here, at best. The actual infringement comes from end users. Limewire is the tool they use. CBS's CNET's Download.com is the tool that Limewire uses. To blame CBS for that is a huge stretch. Also, unless I'm missing it, nowhere in the lawsuit filing embedded below do I see what specific copyrights of the plaintiffs CBS is accused of infringing upon...

Filed Under: alki david, download.com, downloading, liability, secondary liability
Companies: cbs, cnet, filmon, limewire

Is Downloading And Converting A YouTube Video To An MP3 Infringement?

from the interesting-legal-questions dept

There are a variety of different tools out there that let you "record" a YouTube video and turn it into an MP3, just as there are a variety of tools out there for converting Pandora streams to MP3s or converting internet radio to MP3s. Technically it's no different than "recording" something you hear off the radio, which is generally considered legal under the Audio Home Recording Act (which had plenty of bad things in it, but also included protections for people recording at home for personal use).

We may get a test of whether or not that applies to the online world, with the news that former Gnutella P2P client MP3Rocket has changed strategies and ditched its P2P offering to switch to an app that simply records YouTube videos and turns them into MP3s. The company seems to be relying on the Supreme Court's Betamax ruling, by claiming that since all it's really doing is "time shifting" the ability to listen to music streamed via YouTube, it's no different than the ruling that said it was okay to record television shows via video cassettes.

Of course, RIAA supporters and the like will quickly counter by pointing to the various lawsuits over whether or not XM's recording device was legal. Most of those lawsuits ended in settlements, so I don't think there's as strong a precedent that says that turning digital streams is infringement. However, you'd have to imagine that there's going to be one hell of a lawsuit either way.

The reality is that this is yet another case of the law not being able to keep up with technology. There simply is no intellectually honest rationale that says recording songs off the radio is legal, but recording songs off your computer is illegal. It's a weak attempt by an industry that doesn't want to deal with changing technology to put in place laws that prevent what the technology allows. Those never work.

It certainly would be nice to see the Supreme Court note that something like this really is no different than the Betamax ruling, but given the Supreme Court's various bad copyright rulings over the last few years, I have little faith that it will do so. Instead, it would likely just use a case like this to chip further away at the Betamax ruling, just as the Grokster decision did.

Filed Under: betamax, downloading, mp3s, recording, time shifting, youtube
Companies: mp3rocket, youtube

US Copyright Group Willing To Reveal The Tech It Uses To Identify File Sharers... Sort Of

from the an-investigation-would-be-useful dept

US Copyright Group, which is really DC-based law firm Dunlap, Grubb and Weaver, has made a lot of news recently for unleashing thousands of lawsuits on people it accuses of infringing on copyrights, in an effort not to stop infringement, but to send out "pre-settlement letters" to get people to pay up to avoid the lawsuits. Dunlap keeps insisting, despite similar efforts accusing perfectly innocent people of infringement and demanding payment, that its technology is reliable and credible. CCS Labs, a company that does work in the computer crime field, was curious about this and asked US Copyright Group for the right to review its methodology and technology.

Dave Gordon from CCS Labs contacted us to let us know that US Copyright Group has agreed to let it review its technology and methodology if CCS Labs can show that it has been hired by someone who is being sued by it. So, CCS Labs is looking for anyone who was on the receiving end of a US Copyright Group lawsuit to contact them as soon as possible:

However, the CCS LABS, requires your help! If you have received a letter from the US Copyright Group please contact the CCS LABS and formally request them to represent you as your technology experts. They will need your case number of personal contact details which will not be made public. You will also have access to the full report produced by the CCS LABS, instead of a summary disclosure report.

Why might this be important? Beyond getting a look into what US Copyright Group is actually doing in determining who it accuses of infringement, CCS Labs could potentially determine that the technology is not reliable for courtroom use:

The technology supplied will be tested for "fitness" and can receive one of three classifications NOT CERTIFIED, eDiscovery Certified, or Forensics Certified. Only Forensics Certified software may be used to provide "expert evidence" in court. If the technology receives a NOT CERTIFIED classification then the technology is not fit for any intelligence gathering use.

I have no clue if the technology and methodology used by USCG is any good, but it would be nice to have some more details on it, and also getting it tested to determine whether or not it really can be used in court. Among the questions that CCS Labs intends to look at:

1) Is the file downloaded the file that is expected?
2) Are the IPs listed providing the chunks expected or false chunks?
3) Is every action logged?
4) Is a full report produced?
5) Are problems displayed and analysed by humans later?
6) What is the user documentation like?
7) Are the users of the technology fully trained on the technology?
8) Do we have access to the developers?
9) Is the technology's confidence level known?
10) Are the results produced by the Technology repeatable?
11) Has the technology been assessed by an external auditing authority already?
12) How automated is the system?
13) What level of redundancy checking is used?
14) If hashing used, which algorithm(s) is/are used?
and many more...

I'm guessing that US Copyright Group really isn't that keen on having all these questions answered.

Filed Under: certification, copyright, downloading
Companies: ccs labs, us copyright group

Misguided Outrage At NY Times' Ethicist Over Ethics Of Downloading A Book

from the we're-still-having-this-argument? dept

We recently wrote about the NY Times' ethicist, Randy Cohen, and his perceptive claim that downloading an unauthorized digital copy of a book you already own is likely illegal, but not unethical. It resulted in quite a discussion in our comments, with people taking both sides. However, an anonymous reader points us to a blog post at Mediabistro, where it appears readers sent in a whole bunch of ridiculous strawman arguments to claim that downloading such a book was clearly unethical. According to Mediabistro, not a single reader agreed with Cohen. While some commenters on the post do take the "infringement is unethical, no question" type statements to task, the blog post doesn't bother to point out the serious confusion by the complainers. Take, for example, the following:

"So, if you own the hardcover you should get the paperback for free? Different platform, right? Maybe you can use the hardcover to get into the movie version as well. That's a different platform. Maybe the audiobook as well? It's really a deeply irresponsible post. Some ethics!"

But that's missing the entire point of what Cohen said. First of all, the situation he was discussing was one where the ebooks were not even available -- so it wasn't even a question of the author losing any money. And that's the key point that Cohen is making, which seems lost on the people attacking him. Morality only really comes into play when there's a question of who wins and who loses. When you need to make such a choice, that's a moral question. If there are no losers, there's no moral question to deal with. What Cohen is pointing out -- quite accurately and ethically -- is that in a scenario in which there is no loss, but only gain, then it cannot be seen as unethical. What the person above was stating is totally different. In each of those examples there is a real loss. Something scarce is taken, and that means others can't have it. But with the ebook of a book that hasn't been released in that format, that's not even a question.

It's really a question of whether or not you should be allowed to format change the works you've purchased, and there are many reasonable arguments in favor of that -- especially in situations where there is no loss in the system.

Filed Under: books, downloading, ethics
Companies: nytimes

Keith Urban Supports Unauthorized Downloaders... Except When He Doesn't

from the so-that's-how-it-works? dept

Ah, the things that happen when you sign your life away. A month or so ago singer Keith Urban won a People's Choice Award for "Favorite Male Audience." In his acceptance speech, he declared that he was so happy, even for the folks who downloaded his music in an unauthorized manner:

"I don't even care if you download it illegally, give it to your friends. I really don't care. I love the people to hear the music and come out and see us play live."

Apparently, though, he no longer means it. He's now he meant something entirely different:

"What I said came out nothing like I meant," explained Urban. "I was referring to the old days when you'd buy a record, do a cassette tape and give it to your girlfriend, and then maybe she likes it and becomes a fan."

Of course, if that was the case, why did he say "download it illegally" and why did he say -- twice -- that he doesn't care about that. If he was talking about people buying it and sharing it with their friends, why not just say that? So why did he misspeak:

"I've never done an awards show where they seem to let you talk infinitely," he said. "I was waiting for the 'wrap' sign to come up, and it never came up."

Looking at the video, he expresses his love for people who download his music about 20 seconds into the acceptance speech. Before he even thanks his wife. I don't think you can chalk that up to rambling because he had too much time.

All in all, it sounds like those who he signed his life away to at EMI/Capitol Records probably sat him down and had a chat.

Filed Under: downloading, file sharing, keith urban

Wait, I Thought Piracy Had Killed Any Chance Of Zombieland 2?

from the perhaps-not.. dept

Last month, we wrote about Zombieland director Rhett Reese, complaining on Twitter that the fact that his movie was a top unauthorized download would make it that much more unlikely that there would ever be a sequel. Others picked up that claim and ran with it, as if this was proof that piracy was harming the movie business. The whole thing seemed curious to us, since the movie has been quite successful at the box office, and has made a ton of money. Given that, who cares how much it's pirated. If it can make a bunch of money, of course it's ripe for a sequel.

And, guess what? Despite all the doom and gloom about how Sony would never make a sequel, Variety is reporting (you guessed it!) that Sony is about to ink a sequel for Zombieland, which will be done in 3D. Shocking. Even though the movie was pirated so much, the studio still wants to make a sequel? Could it be that there really are some people who recognize that how much a movie is pirated doesn't really matter if the movie can still make a ton of cash?

Filed Under: bittorrent, downloading, movies, popularity, rhett reese, sequels, zombieland
Companies: sony pictures