Question came up as to what Microsoft could do to Slashdot. IANAL (but I play one on the Net). I've also read some of the copyright statute....
Microsoft is requesting that copyrighted (and other) material be pulled from Slashdot, pursuent to the Digital Millenium Copyright Act. The DMCA has two principle components as effects this issue: takedown measures (17 USC 512), in which ISPs have liability waived if they remove allegedly infringing materials on request, and anti-circumvention provisions (17 USC 1201), which seek to block use, development, and distribution of means for circumventing technical copyright protections devices and measures.
If this is an anti-circumvention case, then what's the technical means being circumvented? The EULA itself?
WinZIP compression? I recall fragments of a fascinating conversation I once had with Eben Moglen, in which he suggested that some rather mundane conventions we tend to consider harmless might be construed as "technical means of protection". I don't know. I'd like to think not.
What are they trying to gag? The Kerberos specification? Instructions on circumvention? I can see suppressing the full text, but not the links or commentary. Is discussion of methods for circumventing technical means of protection itself a covered activity (this was a question asked by Don Marti at a panel this February on DVD/DeCSS -- and the response from a lawyer who'd helped author the DMCA legislation was not encouraging), or do we merely intend to apply bad law the way it is written (1201(b)):
any technology, product, service, device, componenet, or part thereof
...again, unless compression algorithms or EULAs themselves are considered technical means of protection, the case would seem to fall to simple copyright violation, a 106 issue. In this case, an 107 fair use
defense seems eminantly plausible, as the post was made for the purposes of discussion, with no personal or financial gain on the part of the person posting, or of deliberate intent on the part of Slashdot or Andover.
So we're stuck with the question: what parts of DMCA are they applying to what parts of the request? 17
USC 1201 ff applies to technical means of protection, but doesn't address ISP takedown, which is covered seperately in 512. Both laws are bad -- 1201 is a legal blot on the principles this country was founded on), 512 bypasses legal tests for copyright fair use exemptions by blackmailing the ISP in question. Then there's sections 106 and 107 -- 106 establishes what an author's (more accurately, copyright holders) rights are, and 107 is the fair use exemption to this right:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Beyond all of that, where is the trade secret and intellectual property? I'm less familiar with trade secret law (and it varies by state), but it seems to me that Microsoft set out deliberately to create a legal
disseminating its valued technology are weak at best.
So we turn to remedies. What can Microsoft claim against Slashdot and Andover.net? These are addressed in Chapter 5 of the statute:
- An injunction is possible.
- Ditto impounding, and this would be problematic to Slashdot, presumably. Especially given the tendency for the Feds to be really ham-handed when it comes to electronic criminal enforcement actions. Things tend to get broke or disappeared.
- Provable damages and profits are in all likelihood nil. Microsoft is quite arguably doing itself move harm in pursuing the case than it would have been in allowing the infringement to occur. Again, the material was being distributed freely, and its status as a trade secret is debatable at best.
- Unless Microsoft has (or is) filing copyright registration on the items in quesiton, then statuatory and additional damages are entirely out of the question. Even if the registration is filed, some courts may not recognize the validity of the filing if it is an after-the-fact event. Filing requirements and impact on infrigement actions are covered in 17 USC 411.
- Costs and attourney's fees -- possibly.
- Criminal Infringement -- likely not applicable, as the posting was not done willfully by Andover, or for commercial advantage (no direct revenue generation). The retail value of the work is quite arguably less than $1000, preempting 18 USC 2318 remedies.
Copyright notice was neither removed nor fraudulently claimes, nor was copyright falsely represented, or attribution withheld from Microsoft (much the opposite, in fact).
- Statute of limitations (5 years for criminal, 3 years for civil) has not expired. Microsoft can act.
- Seizure and forfeiture, again, might apply, and would be problematic for Andover and Slashdot, but likely not life-threatening.
...so: Possibly physical seizure of media, including, presumably, servers, disks, and backup tapes. Monetary damages possibly ranging to a few tens of thousands of dollars. Attourney's fees. Not a huge liability for Andover/VA (who is driving some of this, BTW, as they're
in line to aquire Slashdot/Andover). Pretty small potatoes. And a huge publicity upside.
Thanks, Bill, we needed that.
Karsten M. Self
SCO -- backgrounder on Caldera/SCO vs IBM
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