The Federal Circuit

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: law students and attorneys interested in decision tree analysis
First off, on top of our usual disclaimer, nothing Alex says should be taken as a statement by the U.S. government or the U.S. Court of Appeals.

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Interview notes after the break.

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Listen and find out how Tottenham fits in to Music Manumit

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: 

people interested in patent policy and those interest in the Netizen Empowerment Federation

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Josh and Doug cover a lot of ground. Expect a more focused show next time, when Doug speaks with Alex Owczarczak.

Show notes after the break

Intro from Doug about NEF, MML and Sportazine

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I started this post back when I wrote about trade secrets. As far as talking about trade secrets though, it quickly got out of hand. I’m releasing it as it was written at the time, but I’ll note that the paper I mention on secrecy has been released.

To start, I want to focus primarily on the “secret” part of trade secrets. Secrecy (at least as it applies to governments) is something I’ve been thinking about a lot lately and soon I should be releasing a paper on the topic. Despite (because of?) my research into the topic for the paper (and as is often the case when I write), I feel like I have more questions than answers. My thought is that perhaps public posing the questions will generate some discussion, though that never seems to happen. Regardless, I press on.

So, there is a great tension between sharing and privacy. To a large extent, this tension is new for private citizens. Until the advent of the Internet, most citizens did not have the means or desire to share. Certainly there were letters to the editor in the newspaper and there were those that tried to make a living with art, but for the most part those were local endeavors.

I suppose I haven’t sold myself on the idea that this is a change in kind rather than a change in degree, but it certainly seems like a change in kind. I don’t remember, for example, letters to the editor including pictures of cats. But, what do pictures of cats really have to do with secrecy? Unless you are taking pictures of cat-fighting (is that a thing?), which is probably a violation of local-law, I don’t really know why you’d want to keep the pictures secret.

Maybe though, it’s not the pictures themselves that are the problem, but rather the metadata. Let’s suppose you did mail a picture of a cat with your letter to the editor. Unless you told the newspaper what type of camera you used and where you took the photo, they wouldn’t know (unless it included some sort of landmark, or they just happen to know the inside of the location where you took the picture). Perhaps the picture of the cat shows who you were with. While there are obvious extramarital affair issues there, the situation can be more legitimate. For example, what if someone has a crazy ex-boyfriend/girlfriend. You are in a picture with their cat and then all-of-a-sudden you are in the line of fire, certainly figuratively, but perhaps also literally.

I could certainly rattle on about secrecy and privacy more, but I think it is time to bring it back to trade secrets, because the secrecy debate has been a part of the debate over patents for centuries. I think focusing on the trade secret versus patent argument can help us come to good policies regarding citizen privacy and an understanding of the proper role of corporations (be they unions, non-profits or for-profits). Needless to say, I will not be able to cover trade secrets, patents, privacy and incorporation all in one post. I also hope I do not need to say that if this is a topic of particular interest to readers, if that interest is made known to me, I can do a follow-up post.

Since we focus primarily on free and open source software here, it is worth noting that, as far as I’m aware, there has never been much controversy about sharing versus privacy in the free software community. Early on (2001, according to CVS, though I suspect earlier) the FSF decided that free software included the freedom to make private changes. More interestingly, the FSF says “If you do publish your changes, you should not be required to notify anyone in particular, or in any particular way.”

Mail is hard.

Part 2 of our mailbag series!

• So this site is advocating Free Software?

Yes, though we prefer the term free and open source software. People outside of the community think “free” is about money, but it is not about money. Some individuals starting using the term “open source” in part to get around this problem. However, the “free software” crowd thought the “open source” people had impure motives and thus it became this big political thing.

As to why the site is not called FreeAndOpenSourcePlayground.org, don’t you think the URL is already long enough?

• What would you say is the biggest threat right now to Internet Security?

This depends on what the question is really asking. If it is talking about Internet infrastructure, then the answer is Congress. If the question is talking about every day cybercrime, then the answer is users.

• Where do you think software is going in the future? Is this problem going to get better or worse?

I’m not 100% sure what the problem is in this context. If the problem is proprietary software, then I think as we depend on software more and more, then the problem will get worse. However, free and open source software is always getting better, which decreases the purported need for proprietary software. Ultimately, as long as the media cares about Lindsay Lohan and not information security, we are going to have proprietary software. Since Microsoft has a large stake in the media, I don’t see the media changing any time soon. It is in Microsoft’s and hence NBC’s interest to distract us from the real problems.

• I know these questions have been asked time and again, but remind me: If software is free, how do programmers make money?

Potentially lots of ways. First of all, free software does not mean access doesn’t cost anything. We have free speech, but people still purchase books. While selling disks was a viable business model for a time, with the Internet, that’s less of a viable business model. Two business models still very clearly work. One is the the “crowd-funding” model. Success using this model can be seen in Ouya’s kickstarter project. The other proven model is that of services. There are a lot of companies out there that use this model, but OpenNMS and Red Hat are two obvious ones that come to mind.

Also, individuals can code on the side. They may be a photographer or accountant by day and a developer on the side. In these cases, people do it because they want better software for their day jobs, not because they want to be paid programmers.

• Do I have to be a programmer to use Open Source software?

Absolutely not. Many people use free and open source software and do not even realize it. Google runs partially on free software (in fact, most of the Internet does). Android is free software, as is Firefox. While Google’s Chrome is not strictly free software, it is built on the free software Chromium browser.

• Where can I learn more about downloading free software?

This probably depends on whether you are a Mac or Windows user. The Free Software Foundation has a sort list of applications that run on Windows. There’s a similar list for Mac software, but there’s a ton of information out there. Both of those sites are just places to get started.

If you have a specific question about a specific application, feel free to send it in to the mailbag!

• Who runs this site?

Primarily, Doug Whitfield of the Netizen Empowerment Federation. We also receive some help from Mike and Walt.

• What can I do to help Open Software Playground?

There are at least four things you can do.

1. Become a writer. If you’d like to be a writer, please send a resume to whitfield@opensourceplayground.org.

2. Spread the word. Like us on facebook. Plus us on Google.  Send out the link to your twitter followers. Every little bit helps!

3. Donate. There are plenty of ways to donate. The surest way to make sure that OSP stays up and running is to donate directly to our hosting cost. If you’d like to donate less than $10, then you can buy Doug something from his Amazon wishlist or use Flattr.

4. Help us design a logo. We’ve got different logos on facebook and Google and neither is that great because my design skills are…well, calling them design skills is a stretch.

We are going to start a mailbag series to help people get their questions answered. We won’t be able to answer all of your technical questions, but we will answer as many as we can. If you have questions for the mailbag, email whitfield@opensourceplayground.org.

Question and Answer with Doug Whitfield:

1. What is Open Source Playground?

Right now, it’s a blog and a news aggregator. In the past it was a place for developers to play with new web software. As we partner more with NEF and Mayfirst, we may go back to our roots more. If you’d like to get involved with helping manage the developers, please let me know.

2. What does Open Source mean? (for the uninitiated)

The is actually a harder question than one might think. It means a lot of things to a lot of people. Here, we use it to mean anything that meets the OSI definition.

3. Whats with the ninja on the front page? The man with the ski mask?

People coming to the site right now won’t understand this question, because we changed themes. However, people can see the original on flickr and will see that it is not a ski mask.

4. Do you advocate for CyberCrime?

We do not advocate any criminal activity, cyber or otherwise.

5. Is this a legal resource? What should I reference it for?

What it certainly is not is legal advice. I am not a lawyer and no one associated with Open Source Playground is a lawyer. However, some of  the articles are going to be about the law. The site is about free and open source software. You should reference the site any time you have a question or comment about free and open source software.

6. Why the word Playground? Do you push people on the swings?

When we started the site, it was all about developers playing in a sandbox. It turns out that most of the people that would want a sandbox know how to create one. We were really targeting a small market and without the time or capital to promote things full time, it just didn’t work. There was probably some arrogance on my part to think “if you build it, they will come.” I’d really love to get back to that again, once we build up the profile of the site a bit.

7. Is cybercrime an epidemic?

Complacency is an epidemic. People make it to easy for cyber-criminals. If people would pay attention, there would be less cybercrime. I’m not willing to say that cybercrime is an epidemic.

8. All these articles! Where should I start?

Like most blogs, we don’t expect people to go back and read all of the articles. Where you should start really depends on the reason you are here. We have various categories which are on the side (at least until we have another site redesign!). If you are looking for hard core technical advice, you probably should head elsewhere, at least for now.

Keep the questions coming!

This week begins my summer OSP series. Usually the articles will come out on Thursdays, but obviously if you’re using an RSS reader you’ll just get the articles when they come out. I’ve decided I can’t do an article per week during the semester, but I’m certain I can do an article a week during the summer.

Here are the article topics currently on the docket (in no particular order).

1. Tax Consequences of Free Software (Part 1?)
2. Copyright Chapter 9: Protection of Semiconductor Chip Products
3. Secrecy vs. Privacy
4. Patent Act Section 105: Inventions in Outer Space
5. Does WordPress still have problems?
6. Blogger has a “Cybersquatting” Problem
7. Communities on G+ (or How Free Should You Be?)

By my count, there are 14 weeks left during the academic summer (including this week). That means I have 6 more potential article topics. Please let me know if you have topics for suggestions! You can find me on facebook, G+, twitter or status.net. You can also leave us a comment!

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As to this final Cybercrime post for the semester, our reading actually covered stalking and harassment as well as identity theft. If anyone is interested in an article on those topics, please let me know. For now I am going to sum it up with stalking and harassment are bad, mmkay?

Today’s reading:
Identity Theft and Assumption Deterrence Act, 18 U.S.C. § 1028
Identity Theft Penalty Enhancement Act, 18 U.S.C. § 1028A
Fraud and Related Activity in Connection With Access Devices, 18 U.S.C. § 1029

Incidentally, identity theft is also bad; you know, if that wasn’t clear from the whole cybercrime motif. Even if some things that are crimes shouldn’t be, like say, violating a contract, they are still bad if you do them and get caught before the EFF and others can convince people to change the laws (and violating a contract is always going to be subject to civil penalties, so it’s just something you shouldn’t do). So, don’t steal people’s identities. I feel pretty confident with that advice, even though I am not a lawyer, but you know, consult an attorney if you have question.

Identity Theft and Assumption Deterrence Act

Sitting down to write this post, I realized that I had a lot less to say than usual. I thought, perhaps, I was just exhausted from finals (I am) and just couldn’t think of anything. However, in a moment of clarity, it occurred to me that we read no case law on the topic of identity theft. We focused exclusively on stalking and harassment. Because of that, there are no judges interpreting the statute in crazy ways. Crazy judges make for easy commentary.

Identity theft prevention and security generally I think are going to be reoccurring topics on OSP, so I think looking at the federal statute can provide important background information, even if this post is going to be on the dry side.

It turns out there are 1799 words (according to LibreOffice) in this section of Title 18, so obviously commenting on all of it would lead to a pretty long article. Since the definitions cover both 1028 and 1028A, I’ll reproduce the definitions here for your perusal.

(d) In this section and section 1028A—

(1) the term “authentication feature” means any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified;

(2) the term “document-making implement” means any implement, impression, template, computer file, computer disc, electronic device, or computer hardware or software, that is specifically configured or primarily used for making an identification document, a false identification document, or another document-making implement;

(3) the term “identification document” means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a sponsoring entity of an event designated as a special event of national significance, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals;

(4) the term “false identification document” means a document of a type intended or commonly accepted for the purposes of identification of individuals that—

(A) is not issued by or under the authority of a governmental entity or was issued under the authority of a governmental entity but was subsequently altered for purposes of deceit; and

(B) appears to be issued by or under the authority of the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international governmental or quasi-governmental organization;

(5) the term “false authentication feature” means an authentication feature that—

(A) is genuine in origin, but, without the authorization of the issuing authority, has been tampered with or altered for purposes of deceit;

(B) is genuine, but has been distributed, or is intended for distribution, without the authorization of the issuing authority and not in connection with a lawfully made identification document, document-making implement, or means of identification to which such authentication feature is intended to be affixed or embedded by the respective issuing authority; or

(C) appears to be genuine, but is not;

(6) the term “issuing authority”—

(A) means any governmental entity or agency that is authorized to issue identification documents, means of identification, or authentication features; and

(B) includes the United States Government, a State, a political subdivision of a State, a sponsoring entity of an event designated by the President as a special event of national significance, a foreign government, a political subdivision of a foreign government, or an international government or quasi-governmental organization;

(7) the term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—

(A) name, social security number, date of birth, official State or government issued driver’s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;

(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;

(C) unique electronic identification number, address, or routing code; or

(D) telecommunication identifying information or access device (as defined in section 1029 (e));

(8) the term “personal identification card” means an identification document issued by a State or local government solely for the purpose of identification;

(9) the term “produce” includes alter, authenticate, or assemble;

(10) the term “transfer” includes selecting an identification document, false identification document, or document-making implement and placing or directing the placement of such identification document, false identification document, or document-making implement on an online location where it is available to others;

(11) the term “State” includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the United States; and

(12) the term “traffic” means—

(A) to transport, transfer, or otherwise dispose of, to another, as consideration for anything of value; or

(B) to make or obtain control of with intent to so transport, transfer, or otherwise dispose of.

One thing I will note is that issuing authorities include other countries, so faking a French passport or something of that nature is going to be a crime.

That finally got me thinking…what if you want to make a movie that include made up individuals and the plot requires identification? According to (a)(1) it is a crime to

knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;

It’s possible that a First Amendment challenge might work, but this is definitely something on which I would need to do more research. If anyone is curious, let me know and maybe I can do the research this summer!

Identity Theft Penalty Enhancement Act

This shows up in Title 18 as “aggravated identity theft” and that may be more descriptive, as long as you know what “aggravated” means in the law. Basically, if you do bad stuff while impersonating someone else, there are enhanced penalties.

My only real thought about this is that I’d be curious how this interacts with the CFAA. Is sharing a Netflix password identity theft? It is certainly a violation of the Netflix TOS, and thus a violation of the CFAA.

Based on the definition of “means of identification” reproduced above, I suspect it is. Even if sharing a password doesn’t fall into the definitions of (C) and (D), which I suspect it might, the “including” language means that the specified means of identification are not the only possible means of communication.

And, if you do decide to share a password with someone, make sure it’s not a password you reuse for other services. This probably sounds like common sense, but a lot of people throw common sense out the window once they touch a computer.
Fraud and Related Activity in Connection With Access Devices

I always wonder about statutes like this. Fraud is fraud, right? The statute has been cited 8435 times according to Westlaw, so I guess there’s something in there. This statute goes through sub-section (h), so I can only cover a little bit of the act, but let’s see what we’ve got.

Those citations break down like this:

Cases: 1,829
Statutes: 8
Regulations: 5
Administrative Decisions & Guidance: 155
Secondary Sources: 540
Appellate Court Documents: 2,744
Trial Court Documents: 3,154

As it turns out, one of those cases is a SCOTUS case. That case primarily is about 18 U.S.C. § 3583, which brings up a good point. Whenever we discuss statutes on the blog, there may be other statutes that supersede in certain contexts. This is one of the problems with the US criminal code. We are discussing §3583. How is anyone expected to know that many provisions? I’ve been through two years of law school and I’ve barely touched the criminal code. Granted, that has largely been my choice. The school offers 12 criminal classes. Of course, there are other criminal classes out there that UNH doesn’t offer. For example, Vermont offers a course in wildlife crimes.

Of course, the numbers are a bit misleading. There are gaps, but Title 18 also goes up to §6005, so it’s not like §3583 is close to the end.

Obviously with so many cases and secondary sources, there is a lot to be said about fraud and cybercrime. However, I’m currently at 1850+ words, so it’s probably time for you to rest your eyes.

Now that I’m done with my planned Cybercrime series, I must decide how to spend the rest of my scheduled time studying for my Cybercrime final. I may decide to bring you more articles. I may decide to study for my tax final instead. Man, tax is a beast. I’ve already started an article on the tax consequences of free software, but we’ll see when I’m able to get that out.

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My point is that pretty much everyone can agree that children should be protected in some fashion (they are human, after all) and pretty much everyone can agree that at the very least there should not be prior restraints on most speech. I encourage people to keep an open mind about the issue. As long as one side is screaming “baby killer!” and the other side is screaming “NAZI!” we aren’t going to get anywhere on this issue. I’m not suggesting by any stretch that my article holds any sort of magic solution. I mean that people should keep an open mind at all times, not just while reading the article.

Here was today’s assigned reading:

7. Protection of Minors
7.1. Federal Statutes
7.1.1. Sexual Exploitation and Other Abuse of Children, 18 U.S.C. §§ 2251, 2251A, 2252, 2252A, 2252B, 2256, 2257 & 2260
7.2. Case Law
7.2.1. Knowing Possession
7.2.1.1. U.S. v. Tucker, 305 F.3d 1193 (10th Cir. 2002)
7.2.1.2. Commonwealth v. Diodoro, 2006 PA Super 308 (Pa. Super. 2006)
7.2.1.3. State of New Hampshire v. Peter Clark (2008)
7.2.2. Individual Search v. State Action
7.2.2.1. U.S. v. Jarrett, 338 F.3d 339 (4th Cir. 2003)
7.2.2.2. New York v. Emerson, 766 N.Y.S.2d 482 (N.Y. Sup. 2003)

Since I brought up the First Amendment, I think the rest of the post we should probably talk about state action, since state action is a doctrine in the First Amendment as well. I know I do this a lot…start with a broad topic in the title and then narrow it down, but unless you want to read for 12 hours (3 hours of class time plus x3 out of class prep), I’m not going to be able to cover all of the material. I’ve also had other classes that occasionally come up on OSP (I actually started naming the classes that might apply and I realized that I was quickly making a list of every class I’ve had in two years of law school…so the point is, it’s complicated). I do, of course, remain open to suggestions on how best to convey knowledge on the blog.

Anyway…

At it’s core, the state action doctrine in both the 1st and 4th Amendment contexts is pretty simply: the 1st and 4th Amendments only protect you from the government. Other laws, such as trespassing, conversion, theft or any number of other causes of action, might protect you from a non-government actor.

The question becomes, essentially, when does a vigilante become a government actor? We often like to think of Batman as a vigilante, but I’m pretty sure the Bat-signal or Bat-phone turn Batman into a state actor. While the Wikipedia article on state actors is surprisingly short (and doesn’t even mention the 4th Amendment), it’s actually a huge topic and one we can’t cover fully in one article.

In neither of the cases we covered in class where state action was an issue did the judge actually find state action. While a sample set of only two, you might think perhaps that Batman could wiggle out of state action somehow. However, I think the only way that could happen would be if they didn’t use the Bat-signal or Bat-phone. If Batman were to do his thing and the Gotham police sorta just let it happen, then we might be talking. Of course, Batman has been doing his thing since 1939, so aside from the fact that he is pretty old (and I’m aware there are multiple continuities), at some point the reasoning in U.S. v. Jarrett, 338 F.3d 339 (4th Cir. 2003) (didn’t think I was gonna bring it back, did you?) would suggest that he would become a state actor.

Jarrett was a child pornographer. That was not in dispute in the case. What was in dispute was whether the government violated his 4th Amendment rights. The traditional remedy for a violation of the 4th Amendment right is the exclusion of evidence. A lot of people hate the exclusionary rule either because A) it allows criminals to go free (it certainly does) and/or B) the word “exclusion” doesn’t appear in the Constitution. However, it seems to me that the government breaking the law is a pretty clear violation of “due process” which just so happens to be guaranteed by the 5th Amendment. So, I agree with the courts (on the existence of the exclusionary rule). Mark your calendar.

Actually, I’m not entirely sure I disagree with the outcome of Jarrett. There’s really a timing issue. The illegal search (no one disputes it was an illegal search) happened before the government gave the Turkish cracker (the court disputes that the record suggests he is Turkish, but that’s the word on the street) the “wink and nod” on the go-ahead for more cracking. What is terribly distressing though is the 10th Circuit’s U.S. v Souza case, which the court cites as “holding that police are under no duty to discourage citizens from conducting searches of their own volition.” What the hell are you smoking? Apparently whatever you want, because the police are under no obligation to enforce the law. What kind of garbage is this? I mean, I guess as long as the searches are legal searches, then I have no problem with that statement, but the citation is being used to suggest that the government can recruit foreign cyber-criminals through wink and nod transactions.

U.S. v. Jarrett is a 4th Circuit case, which means it doesn’t apply everywhere, but it has been cited 187 times and only three times negatively according to Westlaw. It’s only 8 pages long with footnotes, printed out from Westlaw, so I encourage you all to read it. I’m now well over 1000 words, so it’s probably time to let you get on with your life. Thanks for reading!

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Here is today’s relevant assigned reading:

5. Trade Secret Misappropriation and Other Stolen “Property”
Economic Espionage Act, 18 U.S.C. §§ 1831-39
National Stolen Property Act, 18 U.S.C. § 2314
Federal Wire Fraud Statute, 18 U.S.C. § 1343
U.S. v. Riggs, 739 F. Supp. 414 (N.D. Ill. 1990)
U.S. v. Schreier, 908 F.2d 645 (10th Cir. 1990)
U.S. v. Brown, 925 F.2d 1301 (10th Cir. 1991)
U.S. v. Martin, 228 F.3d 1 (1st Cir. 2000)

Aside from my wandering intro above, I’m going to try to stay super-focused on the trade secrets issue. It’s hard to talk about trade secrets (particularly in the software context) without also talking about patents, but I’m going to try to keep that for another day.

Of course, as soon as I say that, let me wander a bit…

It’s an interesting question whether case law or statute is easier to change and thus whether I should focus on the three statutes or the four cases for purposes of perpetuity. It’s true that the only thing standing between judges and changing the cases is stare decisis. However, for a variety of reasons, it seems to work. Cases are much more often distinguished than overruled. In fact, two cases that everyone seems to hate, Wickard v Filburn and Korematsu v. United States are still on the books, although Wickard may be a bad example, since at least as recently as 2005, the principles of Wickard were used to justify our increasingly ludicrous drug war.

On the other hand, Congress seems unable or unwilling to get anything done. Whether or not you’d want them to change those particular statutes is, of course, a matter up for debate.

The deciding factor for me to look at the statutes is that the cases only apply in the 10th and 1st circuits. While Riggs has been followed, it’s just a district court case. Since I know we have readers in the 9th Circuit (there are a total of 11 circuits, 13 depending on how you count) it doesn’t make a lot of sense to focus on the case law.

Economic Espionage Act, 18 U.S.C. §§ 1831-39

There are a variety of things in the EEA, which you can read about over at Wikipedia. Here I am only going to focus on 18 U.S.C. §§ 1831-39.

§ 1831. Economic Espionage
§ 1832. Theft of Trade Secrets
§ 1833. Exceptions to Prohibitions
§ 1834. Criminal Forfeiture
§ 1835. Orders to Preserve Confidentiality
§ 1836. Civil Proceedings to Enjoin Violations
§ 1837. Applicability to Conduct Outside the United States
§ 1838. Construction with Other Laws
§ 1839. Definitions

As you can see, we quickly get in to the procedural weeds and thus I want to focus even more closely on §§ 1831-33.

The key to this entire set of sections is the opening to 1831: “Whoever, intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent, knowingly….”

You can see why they are using the word espionage. At some level, it is not hyperbole. You have to wonder though, if someone steals code from Microsoft or Oracle and gives it to the public, is that really espionage? Most people would assume that if you post a trade secret publicly that it would help all governments not using FLOSS make their systems more secure.

Maybe, perhaps there is an exception for making stuff publicly available and not simply giving it to a foreign entity? No such luck. The exceptions are pretty sparse:

(1) any otherwise lawful activity conducted by a governmental entity of the United States, a State, or a political subdivision of a State; or

National Stolen Property Act, 18 U.S.C. § 2314

Interestingly, this provision was modified in the controversial National Defense Authorization Act. In order to find it in the text, you’ll need to search for “2314.” This particular provision of the NDAA seems innocuous enough. As a general rule, I don’t really like the veteran hero worship (I guess you’ll have to read the text to see why I said). It glorifies war too much. Of course, it is not the soldiers that decide whom we attack, when or with what force to do so. But, you didn’t come here for my views on war, I’m pretty sure.

So, trade secrets and wire fraud (below) would seem very obviously to fit in a Cybercrime course and on OSP, but stolen property? I’m a bit perplexed myself, but I think it is this:

Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security or tax stamps, or any part thereof

You might look at that and think, “woah! that is broad,” but I don’t think it is as broad as it first appears. The key is the unlawful or fraudulent intent. As long as you don’t transport software or general computer hardware with the intent that it be used for making fraudulent securities or tax stamps, you should be good. Obviously, if someone accuses you of violating this provision, consult a lawyer.

Federal Wire Fraud Statute, 18 U.S.C. § 1343

Don’t be confused with what we discussed before, the Wiretap Act.

This is totally different:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation occurs in relation to, or involving any benefit authorized, transported, transmitted, transferred, disbursed, or paid in connection with, a presidentially declared major disaster or emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)), or affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

I guess the key take-away is: don’t mess with disaster areas! I don’t want to spend a lot of time on this, because I think it is pretty straight-forward. However, I note that at least one court has found a Constitutional limit on this provision.

Of course, all of these statutes have case law interpreting them, but I’m already at +1300 words, so I think it is time to let you go read another article and for me to start the 10th article in the Cybercrime series.

Looking at all of these provisions, you might be wondering about over-criminalization. If so, I encourage you to listen to this Federalist Society Podcast. I don’t tend to agree with a lot of the positions the Federalist Society takes (although, officially, they take no positions being a 501(c)(3)) but they do seem to present a reasonably balanced viewpoint. Since Republicans and Libertarians tend to disagree about things like drugs and war, it’s often not hard for the Fed Soc to present at least a couple of sides.

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It’s finals time, which means I need to start thinking and synthesizing the Cybercrime material. You’ve already seen that with a bit of flurry of recent activity. That flurry actually lead to a record-breaking April for OSP in terms of site hits.

Today we are going to talk about copyright. There is a lot to say about copyright, and we’ve been discussing it some in the G+ Creative Commons Music Community. Additionally, Brian recently returned to the Music Manumit Lawcast with an article on copyright registration.

Since this is in the Cybercrime series though, today I specifically want to discuss copyright on the Internet. Due to the way the Internet works, Congress has had to cut out specific exceptions for Internet intermediaries. It is one of those specific defenses I will write briefly about in the rest of the post.

Generally speaking, we try to keep Open Source Playground understandable and relevant to the average technology enthusiast. However, today’s topic is admittedly a bit esoteric. The general topic of Internet intermediaries I don’t think is particularly esoteric and is an important concept for any startup Internet company to understand. Specifically, I am going to be focusing on how a plaintiff finds the appropriate defendant before filing a copyright suit.

Today’s topic is one a hope none of you ever need and more so than a lot of other topics, if an issue comes up, you need to speak with an attorney. It’s easy enough to get broad copyright principles from me or from Mike Masnick over at Tech Dirt, but once it’s time to go to court, you need to speak with a professional.

You might be thinking, “I don’t believe in copyright, I believe in sharing” and that’s great. We basically agree with you (if recipes aren’t copyrightable, it doesn’t make any sense for computer programs to be copyrightable, but nonetheless, they most certainly are). However, remember that the GPL is a copyright license. If individuals want to enforce the GPL, then they need to go through the normal copyright litigation procedures.

With that massive introduction to the topic out of the way, here’s Week 8′s reading:

• MGE UPS Systems, Inc. v. GE Consumer and Indus., Inc., 622 F.3d 361 (5th Cir. 2010)
• Egilman v. Keller & Heckman, LLP, 401 F.Supp.2d 105 (D.D.C. 2005)
• Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004)
• Recording Industry Ass’n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003)

I am primarily going to be focusing on Recording Industry Ass’n of America, Inc. v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). First off, let me just note that the Verizon is the good guy in this case. Leave it to the RIAA to make Verizon out to be a good guy.

In this case, Verizon is attempting to protect its users (and, incidentally, their bottom line). It does so through the DMCA, or more specifically, 17 USC 512(h), which says:

(h) Subpoena To Identify Infringer.—

(1) Request.— A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

(2) Contents of request.— The request may be made by filing with the clerk—

(A) a copy of a notification described in subsection (c)(3)(A);

(B) a proposed subpoena; and

(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

(3) Contents of subpoena.— The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

(4) Basis for granting subpoena.— If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

(5) Actions of service provider receiving subpoena.— Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.

(6) Rules applicable to subpoena.— Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

The DMCA is oft-talked about in the tech press, and with good reason. Both the 512 series and the 12xx provisions have profound implications for copyright law in the US. However, this particular provision doesn’t get a lot of attention because it doesn’t criminalize anything and it doesn’t explicitly grant any exceptions. It is purely about process.

It turns out the provision is exceedingly important for privacy (and incidentally, for keeping ISPs from having to field subpoenas). The key provision here is 512(h)(4) which points to 512(c)(3)(A). Unfortunately for the RIAA, part of 512(c)(3)(A) says

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

Since Verizon doesn’t store the material, it is impossible for them to locate it. Well, they might be able to sniff the location and then crack any password protection of the storage location, but that would violate the CFAA.

The case, as printed out through Westlaw is 8.5 pages, so it’s not particularly long. It is long enough though that I don’t think I can run through the entire opinion here. I do want to point out one thing before moving on though. As is the case with most (all?) statutes, the section is not clear without reading the definitions, which are listed in 17 USC 512(k). However, for this case, it does not matter what the definition of a service provider is because even if Verizon is a service provider based on the definition, they still cannot locate the material. I point this out just to leave you with the cautionary note that words in the law do not necessarily mean what they mean in normal speech. Additionally, the same words can mean different things in different statutes (and often do). If you want to figure out the law, ALWAYS read the applicable definitions.

If you would like to know more about the DMCA, you can check out the articles Brian and I wrote over at the Lawcast.

Of course, if you want to avoid the RIAA, ASCAP and the rest of the MAFIAA, just listen to, watch and support Creative Commons music and video.

As usual, if you have any thoughts on future coverage, please let me know. I could easily do case notes on each of the cases, if people would like that. I can also cover more current issues than we have been doing thus far.

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