Attorney Mike Godwin Answers 'Cyberlaw' Questions

Attorney Mike Godwin Answers 'Cyberlaw' Questions 322

Posted by Roblimo on Monday April 05, 2004 @11:45AM from the oldest-living-internet-lawyer-tells-all dept.

In this Q & A session, in which attorney Mike Godwin answers your questions, you'll see talk about many topics that get chewed up on Slashdot over and over again -- except this time the person speaking actually knows what he's talking about. Note especially the bit about liability for what you post online. A *lot* of people who post on Slashdot ought to read that part...

Is there any hope? - by griffjon

By the time your daughter grows up, do you think there will be any of our cherished freedoms on the Internet left, or will everything be wrapped in legalese and DRM? With the passage of laws from the DMCA to the PATRIOT act, I've been increasingly pessimistic about the US's ability to pass any sane legislation that interfaces with the Internet...

Godwin:

If I didn't have hope that freedom would ultimately prevail on the Internet, and in the world around us generally, I would have moved on to some other kind of work. My current work, with Public Knowledge, is deeply satisfying -- I think the action now is at the intersection of intellectual-property law, technology policy, and constitutional law, and I have a longstanding interest in all three.

I don't think DRM by itself is deeply significant -- I think it's part of an ongoing cycle by vendors of digital products to attempt to increase control, then to relax it when the marketplace resists that control. Badly crafted laws, such as the DMCA and the PATRIOT Act are worse problems, in a way -- there's a strong tendency in the legal system for laws to ratchet up restrictions that are then only rarely ratcheted back down. The key thing in response to such laws is to identify points of tension where the laws lead to absurd results, and to focus challenges there. That's what EFF and other activist groups try to do.

The worst problem is when badly crafted laws, such as the DMCA, intersect with DRM to lead to results that effectively deprive people of rights they otherwise have under the Copyright Act, or under other laws. But I don't think such problems are intractable -- I think they simply require an immense amount of long-term effort by reformers.

Lesser-known cases that have a big impact on law. - by Viperion

Mr. Godwin - Lots of /.ers follow the SCO case, followed the DeCSS, Napster, IP, CIPA, etc. What are some lesser known cases/laws that you forsee as having a large potential impact on 'cyberlaw' as we know it?

Godwin:

I think we've come a long way since the early 1990s, when key cases might be handed down that affect online rights and responsibilities without generating a lot of publicity. The cases you hear about now through Slashdot and through traditional news media are the leading cases.

Where the real focus needs to be, it seems to me, is on the efforts by content companies to get the Federal Commuications Commission to become, in effect, the arbiter over DRM and computer arhitectures generally. Some of this is occurring in the FCC's broadcast-flag proceeding, and some in the FCC's administration of "plug-and-play" compatibility for cable services. Right now, the content companies are hoping to steer consumer-electronics companies and computer companies against using analog interfaces, because analog interfaces aren't as easily subjected to copy-protection technologies. Never mind that analog connections may be a source of compatibility among a wide range of different technologies.

Another front in cyberlaw is the efforts of the movie companies to seek changes in state-level regulation that would prohibit you from hooking up your computer, or other "unauthorized devices," to services you're paying for, such as cable television service. What the movie companies would like is for it to be criminal for you to hook up any device that might be more flexible than consumer-electronics tools in capturing and playing back content. I understand their concern -- they're freaked out by the prospect of folks digitizing content and putting it up on their Internet -- but I don't think their concern should trump the general preference we have for convergence between consumer-electronics devices and information-technology devices. The fact is that, already for a lot of us, watching TV on computers is the preferred mode to view TV content. Ditto with movies.

Internet law, International law? - by heironymouscoward

How far do you think that the internet will be responsible for creating a de-facto international legal system? Property rights, shared criminal databases, shared economic systems,... it seems that the influence of TCP/IP packets has no limits on our society. Will we one day see a world government to enforce international law? And lastly, will this be the US?

Godwin:

Well, I can't dispute that there are some strong pressures to harmonize legal systems among nations. The Internet is certainly part of that, although the pressures predate the modern Internet. But, you know, the experience we've had in the United States has been that there have long been efforts harmonize law among the various states -- the result has been a greater degree of uniformity, but not complete uniformity, among the states. What I anticipate over the long run is that, due to the Internet and other factors, we'll see a greater degree of uniformity among the laws of various nations, with critical exceptions such as the United States's greater degree of tolerance for defamatory speech.

The key focus will coming up with standard rules for deciding which courts have jurisdiction over activities that occur on the Internet. For some kinds of cases, it will turn on where the Internet activity or communication originated; for others, it will turn on what kinds of effects the Internet transaction has had on a particular jurisdiction.

I think we're a long way from "world government." You need a greater degree of inter-cultural harmony than we currently have, if the world government is going to play a dominant role. I think the U.S. has created some credibility problems for itself with the war on Iraq that tend to undercut its moral authority in other spheres. Even without that problem, there is longstanding resistance among other nations to ceding to the United States too much influence or control

Internet Pollution - by iplayfast

It seems to me that most (if not all) spaming and advertising done on the Internet is simply polluting the lines of communication. Like any pollution, it reduces the stuff you want, by increasing the ratio of stuff you don't want, thereby making the whole environment unusable.

Is it possible that this view can be used in any legal way to go after Internet polluters?

Godwin:

While legal theories derive to a large extent from analogy, it's usually not quite on such a wholesale level. Plus, economists already have some useful analogies to deal with the problems raised by SPAM -- "the free-rider problem" and "the tragedy of the commons." (These concepts also have been applied to environmental pollution, by the way.)

Where the pollution metaphor departs from our legal system is that most SPAM is also speech (albeit frequently speech that is garbled in order to thwart Bayesian and other types of filtering). Prior to the Internet, we saw the development of so-called "commercial speech" doctrine in American constitutional law -- it was aimed at creating a framework that allowed regulation of speech that invites someone into a commercial transaction, without affecting all the other kinds of speech, but has never been fully laid out or defined. The SPAM problem may result in more development of this doctrine.

What most of us who complain about SPAM want, I think, is a world in which we never get unsolicited commercial email, or at least in which that email is kept to a minimum. Plus, we'd kind of like to get back the bandwidth that we think is being eaten up by the spammers. (Obviously, blocking spam at the user level -- which I more or less have to do, since my email address has been the same for a decade and a half -- doesn't address the waste of bandwidth due to SPAM.) I'm not sure I know how one properly addresses the problem from a legal standpoint; I'm pretty certain that mere technical solutions won't work, absent some major reworking of the architecture of the Internet (which I would disfavor).

What we say in Cyberspace - by MrIrwin

I have always considered comments that are said on newsgroups and forums to be personal opinions of the sort one might overhear in a bar, so if you say "Apple nicked all their ideas from PARC" you would not suddenly expect a summons from Apples legal department.

On the contary, if a site passes itself as an "eNewspaper" site, an eMag or whatever, and it publishes mistruths, then I would expect it to be sued as any pulp publication would be.

Are there any legal precedents or specific laws on this?

Godwin:

First of all, make no mistake -- you can be held legally responsible even for things you say in a bar! Our law addresses the kinds of reputational damage that one can do in a bar conversation; we call that area of law the law of "slander" -- that is, the law of spoken defamation.

There's also already plenty of law on the books with regard to defamation on the Internet. Generally, the analysis is that because the scope of Internet communication can be much greater than that of overheard-in-the-bar conversations, libel law (generally speaking, reputational damage attributable to publishing in a mass medium) is more applicable than the law of slander.

You're right that Internet publications that edit their content before making it available to the public probably fall under the same rules as any publication on "dead trees." What was harder for the legal system to grapple with in the early 1990s was the BBS/Compuserve problem -- how do you treat systems that reserve the right to edit or remove stuff, but don't normally do so? I spelled out what I thought was the answer to that question in articles I published back then, later collected and reworked in my book CYBER RIGHTS: DEFENDING FREE SPEECH IN THE DIGITAL AGE.

I think I came up with "the right answer," applying existing libel-law principles, but my prescription about how to handle libel on the Internet was trumped by the Communications Decency Act, which later was incorporated into the 1996 omnibus telecommunications legislation. In the runup to the CDA, service providers negotiated an legal-liability exemption for themselves for cases in which their subscribers (rather than, say, magazine editors) originated the content. Needless to say, this was not a part of the Communications Decency Act that we challenged in Reno v. ACLU, the case in which the Supreme Court upheld a lower-court's finding that the CDA's ban on "indecent" content on the Internet was unconstitutional. One of the nicer outcomes for service providers and for the rest of us was that the ISP exemption remained even when the guts of that law were struck down. (I also talk about this case at length in CYBER RIGHTS, by the way.)

DMCA - by JoeBaldwin

Do you see the DMCA as a law that can truly benefit the world as a whole, or just a tool of the big corporations (MPAA, I'm looking at you) or whatever?

Godwin:

Well, I think it's primarily a tool of copyright-holding companies, who continue to be terrified (with justification) about the impact the digital world is going to have on their ways of doing business. For two or three centuries, depending on how you count, publishers and distributors have relied on the technological happenstance that making a copy of a creative work was difficult. The digital world makes copying easy and cheap, which undercuts a basic assumption behind copyright law, which is that unauthorized copying is generally so expensive that only bad guys with commercial motives would bother to do it. Suddenly, computers and the Internet have created a world in which ordinary, otherwise-law-abiding people are empowered to make unauthorized copies for free, and to share those 100-percent-perfect copies of creative works with other people -- maybe millions of other people.

Now, one response to this is just exactly what we've seen -- the copyright industries have been trying to shore up the existing copyright framework by DMCA lawsuits (either against Internet service providers or against individual users), by seeking architectural changes over computers and the Internet (to make copying harder), by classifying noncommercial copying as a criminal or civil wrong, and so on. And because these are well-moneyed copyright holders who do in fact employ lots of people and contribute to the economy, they have a lot of influence with policy-makers.

The problem here isn't merely that the copyright industries are trying to demonize peer-to-peer file-sharing, and digital copying of content generally. Instead, it's that they don't realize (or don't care) that they're attempting to roll back or otherwise restrict what can only be understood properly as design features of computers and of the Internet itself. Digital technologies at some fundamental level are about the making of perfect copies of information (whether that information is your content or someone else's). It's very hard to put technological hobbles on computers and the Internet that distinguish between lawful copying and unlawful copying -- if you want to throw out that bathwater, you're going to end up throwing out the baby as well.

A better approach, it seems to me, is that suggested by, among others, law professor Jessica Litman in her book DIGITAL COPYRIGHT. In the last chapter of her book, which I recommend to anyone interested in the DMCA and related digital-copyright subjects, Litman suggests that as we revise copyright law in the digital age, we try to make it as much like pre-existing law as possible. I agree with that -- my major criticism of the DMCA is not so much that it serves only one set of interests but rather that it prohibits circumventing copy-protection technologies even if you have an otherwise lawful reason to do so.

I have one other thought on this subject that's been on my mind lately, and it's this: just as much as peer-to-peer file-sharing is a basic feature of the Internet, music sharing (and the sharing of other treasured creative works) is a basic feature of human culture. We want to share the songs we love, the books and movies we love, and so on. I think what we've got to aim for is a legal system that preserves the goals of the Copyright Act while accommodating, to the extent possible, the human impulse to share the cultural creations we love.

Future Lawyers - by Fros1y

As a computer science student graduating college and hoping to head to law school, I wonder if you have any particular advice about what training, if any, will help to prepare me for "cyber-law". Many schools seem to have programs focusing on this aspect of the law, but I've often thought that the generalist approach to a field yielded better results.

Are there any experiences you'd advise a young prospective attorney interested in this field to seek out?

Godwin:

My belief is that the generalist approach is the right approach. The best lawyers in this field, I believe, are generalists -- people not only comfortable with a wide range of areas of law, but also with as wide a range as possible of technologies, creative cultures, and so on. Fortunately, any good law school has the resources to give someone a good general background on the legal side; as to the technological and cultural stuff, basically you have to make an extra effort to keep up that side of your training as well.

I never took a copyright course, or any course in intellectual property law, but I haven't found them particularly hard to acquire as a working lawyer. That's partly because the legal training I did receive enabled me to learn new stuff in a hurry. So, aim for the best legal training you can get, and don't give undue weight to the question of whether the law school has a program in cyberlaw or not.

There was, of course, no cyberlaw course being taught anywhere in the late 1980s when I was in law school, and I haven't felt the lack.

Spyware and its legal status - by medication

While I find spam as annoying as the next person, I'm more interested in the legal status of spyware. What are the rights of the individual when he visits a site? What rights to the individual's machine does the site have? Is permanently altering a user's browser a legal operation? What constitutes permission with regard to this type of manipulation?

Godwin:

The general answer is, if you give knowing consent to let this stuff be installed on your system, the spyware company is off the hook. "Knowing consent" probably means something like "did you have a chance to reading the licensing terms before clicking 'Agree'?"

Most of the companies that want to install stuff on your system that monitors what you do or otherwise takes over some of the cycles of your CPU for their own purposes will put such waivers up front in the installation process. Those that don't fully inform you about what they're doing, or that simply install stuff secretly, may be running afoul of the federal Computer Fraud and Abuse Act (or a state-law equivalent).

Making DVD Copies - by iammrjvo

Is it legal to make and edit copies of commercial DVDs for personal use? What about loaning out the edited copies to friends?

Godwin:

Personally, I happen to believe that making copies of your own DVDs for your own personal use ought to be understood as legal. Ditto for edited copies, to a limited extent. But beware -- the further you get from personal use, the more copies you make, and the more people you loan the copies to, the more likely it is that some movie company will try to classify you as an infringer and get you sued or prosecuted. (This risk is even greater if you've been editing the DVD content.)

We're living in a time in which there is a lot of pressure from content owners to put harder and ever more restrictive limits on what you can do with commercial content -- even content that you've lawfully obtained. Until the next paradigm shift occurs (and I don't know when that will be), you need to be alert to the prospect that your seemingly innocent, noncommercial behavior with digital content will set off a tripwire in some copyright lawyer's office somewhere.

What makes the net so special? - by jdunlevy

Why is it that there "have to be" laws specific to the internet? If a spammer sends an e-mail using forged headers, why doesn't the law go after him (or her) with good old-fashioned anti-fraud laws? Does the main failing of these kinds of old laws lie in ingorance that makes law enforcement unable or unwilling to enforce the laws without further clarification, or is something else going on here?

Godwin:

I've never been one for Internet-specific laws. I like to think our law works best when we incrementally change existing law to accommodate new situations. That's what happened with the law of common carriage, for instance -- a branch of law that dealt with carrier liability when the carrier was likely a stagecoach or a locomotive ultimately was adapted to apply to the telegraph and telephone, and the outcome of that incremental growth was liberating, both commercially and socially.

There may, however, be areas of law where something Internet-specific (or computer-specific) needs to be specifically developed. Take SPAM, for example -- the problem with SPAM may be understood as the fact that there are few inherent economic limitations on filling people's mailboxes with unwanted email. (By comparison, junk-mailers have to pay postage, printing costs, and the like.) So maybe the fact that there are no economic disincentives for spammers to flood your mailbox means there should be legal disincentives. Similarly, computer viruses are a kind of noxious hazard that does not have a precise counterpart in the non-Internet world, so it seems appropriate to address virus-writing miscreants with computer-specific or Internet-specific laws.

In general, though, I like applying old rules in new ways. My book takes this approach as one of its themes -- I try to show how traditional, well-understood principles of free-speech law can be adapted relatively straightforwardly in the digital world.

Privacy and domain names - by Tablizer

Do you feel that one should have to make their (human) name and street public information to receive a domain name? It is perfectly possible to keep such information private except to law enforcement under request. The debators on both sides seem to see it as an all or nothing situation: open to everybody or open to nobody.

Godwin:

I'm not a big supporter of mandatory self-identification, whether it comes to domain names or anything else. Our culture, including our legal system, has established a pretty high tolerance for anonymous speech, and I'd hate so see that tradition abandoned, whether in the course of fighting spam, or preventing terrorism, or whatever the evil of the day is.

Question (continued):

Godwin:

For that matter, what are the legal barriers against having a single "recipient number" for all types of communication so that one can move and still keep the same number? Email, phone, paper mail, etc. can then be redirected to such a number, and internal lookup tables would supply physical locations or addresses for final delivery. But to senders or callers, it is just one stable number.

There's no restriction on keeping your same email address, so long as you keep the same provider, so far as I know. (Your provider may have policies that restrict your ability to do this, but I know of no general legal restriction.) The key thing for the Internet is DNS -- the domain name in your email address tells mail servers something about where to route your mail. I don't know for certain, but my instinct is to believe that email addresses are not going to be portable anytime soon in the way that (thanks to regulation and deregulation) cell phone numbers are, and landline phones may someday be. At least not until we see some successor to the domain-name/IP-address model, which I wouldn't look for anytime soon.

GNU General Public Licence - by Vexware

I have written some software and have decided to distribute it under the GNU General Public License. I then find out some established/incorporated company has modified the software without redistributing their modified version freely, that they are making a profit out of the modified undistributed version, or that they are redistributing the software without pointing out that what they are giving is not the original version of the software. What exactly are my rights? Is it worth taking the company to court, or is this too risky? To come to the point, is the GPL actually a license which has some value in the courts of justice?

Godwin:

I'm not an expert on the intricacies of applying the GPL -- for that expertise I'd refer you to Eben Moglen at the Columbia University law school, since he's thought more deeply about GPL problems than I have (not least because he developed the current version of the GPL in consultation with RMS). My short answers are:

A. Yes, I believe the GPL is actually a license that has value in court.

B. I can't tell you whether it's an appropriate business decision for you to pursue some legal action against some company that has violated the GPL that accompanied the code with which you provided them. I do think folks at the Free Software Foundation and other free-software/open-source advocates would likely take an interest in a case like the one you describe, so it wouldn't hurt to contact them for advice if this problem comes up.

Groklaw - by robslimo

What effects, positive or negative, do you think sites like the popular Groklaw have/will have on corporate technology litigation? Do lawyers pay any attention to the research and opinions of amateurs and the general public?

Godwin:

I think sites like Groklaw provide valuable information as well as (occasionally) entertainment for those of us, lawyers and nonlawyers alike, who want to track certain kinds of computer-, Internet-, and technnology-related issues. I don't have any strong sense that lawyers who represent the big corporate players give routine attention to what people say on the Net about their cases -- for them, as for the rest of us, the Internet may well be what Vernor Vinge memorably termed "the Net of a Thousand Lies." That said, history suggests that if there's enough of a groundswell of opinion, positive or negative, about what a company is doing, the company ultimately pays attention to the reaction (with the CEOs paying attention perhaps more quickly than the lawyers do).

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