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Protecting State Secrets Through Copyright 142

Posted by samzenpus
from the listen-to-the-law dept.
An anonymous reader writes "The United States has pursued Bradley Manning with full force for his role in supplying classified documents to WikiLeaks, in part because of the substantial difficulty in going after the organization directly. Criminal statutes generally deployed against those who leak classified government documents — such as the Espionage Act of 1917 — are ill-equipped to prosecute third-party international distribution organizations like WikiLeaks. One potential tool that could be used to prosecute WikiLeaks is copyright law. The use of copyright law in this context has rarely been mentioned, and when it has, the approach has been largely derided by experts, who decry it as contrary to the purposes of copyright. But a paper just published in the Stanford Journal of International Law describes one novel way the U.S. could use copyright to go after WikiLeaks and similar leaking organizations directly--by bringing suit in foreign jurisdictions."
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Protecting State Secrets Through Copyright

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  • That's just great (Score:5, Insightful)

    by Anonymous Coward on Sunday May 20, 2012 @09:35AM (#40056629)
    Now they should publish an article on how to use international law to reign in the abuse of political, economic and military power by the United States on the international arena.
    • Re: (Score:2, Informative)

      America needs to have Constitutional law reign in the abuse of political, economic and military power of the malignancy sprouting from Washington DC.
  • Been done. (Score:5, Informative)

    by SuricouRaven (1897204) on Sunday May 20, 2012 @09:37AM (#40056639)
    The Church of Scientology started using this method years ago. It's worked exactly as well as any other means to prevent the dissemination of secrets on the internet.
    • Re:Been done. (Score:4, Interesting)

      by budgenator (254554) on Sunday May 20, 2012 @02:54PM (#40058331) Journal

      That always gets me laughing every time I hear it, because you can't copyright facts, only creative works, so you know what that says about CoS.

    • It's too late to prevent the dissemination of secrets now; that's not what they're trying to do. What they're trying to do is find some way to punish an entity that has broken no law. They're trying to twist laws to serve that purpose, so they can serve up Wikileaks as an example, not so they can prevent them sharing things.

      • Re:Been done. (Score:4, Interesting)

        by rtb61 (674572) on Monday May 21, 2012 @12:47AM (#40061377) Homepage

        The catch with copyright, firstly you must make the claim that all documents exposed are true and factually (they already shot themselves in the foot with that when they claimed in the first few weeks it was all a lie) and secondly you have to claim damages, that you wish to sell the documents at the copyrighted ones are harming your revenue (now we all know that is not true and if it was, what is Bradley Manning being accused of, copyright infringement).

        All of this desperate clutching at straws to bury the documents indicates two more things. Firstly the reality exposed in the documents undermines future lies they intend to tell. Secondly they can not hide under national security, the crimes exposed and weaken the defence that the accused Bradley Manning was forced to publicly expose those crimes because, his superior officers were failing to do so. It is illegal to obey an illegal order and it is a criminal act, accessory after the fact, to hide crimes.

        • by chrismcb (983081)

          The catch with copyright, firstly you must make the claim that all documents exposed are true and factually.

          I'm sorry, but what part of copyright claims that all documents must be true? I guess all those fictional books and movies can't be copyrighted.
          You also don't have to claim damages. Just because your work isn't making money, doesn't mean it can't enjoy the protection of copyright.

          • by Immerman (2627577)

            It's not that the documents are true, but that you truly wrote them

            In claiming a copyright violation on a leaked document you are asserting that you did in fact write the original, if it was a fake then the copyright would reside with whoever dreamed it up. It's not something you can do while still denying that the leak was accurate.

  • Public domain? (Score:5, Interesting)

    by Admiral Burrito (11807) on Sunday May 20, 2012 @09:37AM (#40056641)
    If I remember right, government works automatically fall into public domain. Wikipedia seems to think so too: https://en.wikipedia.org/wiki/Public_domain#Government_works [wikipedia.org]
    • Re:Public domain? (Score:5, Informative)

      by buchner.johannes (1139593) on Sunday May 20, 2012 @09:47AM (#40056693) Homepage Journal

      This Note will explore these difficulties, such as the government works issue, potential fair use or fair dealing defenses, as well as various non-legal obstacles to success, eventually reaching the conclusion that prosecuting WikiLeaks internationally for copyright violations is potentially more viable than any of the methods of criminal prosecution heretofore explored publicly by government attorneys and legal scholars.

      Or, you can just not bring the case to court and hold people indefinitely without prosecution for several years. Then they don't have anything to defend against. A debtors' prison if you will.

    • Re:Public domain? (Score:5, Interesting)

      by AliasMarlowe (1042386) on Sunday May 20, 2012 @09:56AM (#40056737) Journal

      If I remember right, government works automatically fall into public domain. Wikipedia seems to think so too: https://en.wikipedia.org/wiki/Public_domain#Government_works [wikipedia.org]

      TFA deals with exactly that. The US government is allowed to hold copyrights which are assigned to it, including the copyright of works by outside contractors (many activities producing "government" documents are outsourced, even in Defense). TFA conjectures that some of the documents disclosed by Wikileaks would fall into this class, so that Wikileaks could be pursued in foreign courts for copyright violations. Also, the US government is explicitly allowed to assert copyright over its own works outside the US. So in principle almost any unauthorized disclosure of US government documents outside the US would be a violation of US government copyright.

      It's a Byzantine, almost Stasi-like approach to quashing what are probably truthful revelations. One would hope this interpretation would be thrown out by any reasonable court in the EU. It would be a faint hope indeed in many countries (such as the UK).

      • Re:Public domain? (Score:5, Informative)

        by the eric conspiracy (20178) on Sunday May 20, 2012 @10:32AM (#40056885)

        This article is speculative; the US has not actually brought a copyright suit.

        If it were to be brought it would happen in Sweden where copyright suits are difficult (as the article points out).

        • by detritus. (46421)

          To be completely honest, I would hope they would so it goes all the way up to SCOTUS. There's a snowball's chance in hell that this would ever be OK'ed by the Supreme Court and if there was ever a better time or reason to cement a ruling, it's now. When Daniel Ellsberg leaked the Pentagon Papers, they never brought up the issue of copyright, even though he painstakingly xeroxed thousands of documents and leaked them to the press.

          • If the US brings a copyright claim in Sweden the US Supreme Court has nothing to do with deciding what happens.

            When the Ellsburg case was brought up in the US there was no attempt to use copyright, nor would it be likely to apply because the US Government cannot copyright it's works.

            The NYT was allowed to publish the Pentagon Papers despite their classification because of the overriding interest of the First Amendment.

            Judge Hugo Lafayette Black wrote one of the most famous opinions in US History in this dec

      • by glorybe (946151)
        Would not this depend upon whether the government had filed for copyright on the materials? In the case of Wiki Leaks was the material at issue under copyright?
        • by zlives (2009072)

          how does this affect discovery process of classified materials in a civil case... in another country?
          would the govt. even want to do this?

          • It's not about containing the leak, it's about punishment. In this regard, it would be like any other copyright case. Just because something is brought up as evidence in court, no one receives any copyright-related rights, and certainly not retroactively. (See the Oracle vs Google case for an example.)

            • by zlives (2009072)

              i mean TO copyright a document before you can bring a copyright infringement suite, wouldn't someone have to have access to the material. The CR owner couldn't just say we have some documents that may or may not exist that are also copyrighted... so you can't leak them? or we will sue!?

              • The leak has already happened. Most countries lack the notion that something is still classified even if it's been printed in newspapers, just because the government hasn't officially declassified it yet.

              • by chrismcb (983081)
                A work is copyrighted when it is created, whether it is published or not.
                Of course in order to illegally copy a work, someone has to have access to the material. Otherwise, what are you copying?
                But yes, the CR owner can say just that. In fact I have some documents, that may or may not exist. you can't leak them.
        • My belief is that copyright is automatic, you seem to be thinking about whether it is registered or not

        • Copyright exists the moment pen touches paper, etc. No need for special registration needed. Trademarks you do need to register, but only if you intend on taking legal action.
      • by St.Creed (853824)

        While you can certainly try this, it is also usually the case that the judge has to weigh the interests of the public (defending) against the interest of the holder of the copyright. And in this case I would expect that there *is* a public interest in the documents being known. Otherwise newspapers could never publish anything. Now, you could argue that in the US, the US government has to decide this. So in the US this might be different. But outside it, it would be much harder to argue that foreign nationa

      • by mwvdlee (775178)

        Does the US have any legal standing or are their claims to copyrights even recognized in foreign courts?
        Doesn't the work have to be either registered or published in those countries first?
        US government may give itself copyright to it's own works outside the US but they do so under their own law, and US law doesn't apply outside the US.

    • by Shavano (2541114)

      Government PUBLICATIONS automatically fall in the public domain. Government secrets do not.

      • by Bengie (1121981)
        The discussion isn't if Wikileaks won't get in trouble, but how/why the government wants to use civil law to prosecute. I guess the bonus is if they use civil law, they must allow the use of a jury, then you run into the whole jury nullification issue.
        • by Shavano (2541114)

          That makes no sense. You are entitled to a jury in any criminal case and in any major civil case.

          • Unless you're in the military. Then you get a tribunal.
            • by jamstar7 (694492)

              That makes no sense. You are entitled to a jury in any criminal case and in any major civil case.

              Unless you're in the military. Then you get a tribunal.

              or declared an 'enemy combatant' (whatever that is this week), then you get a 4x6 cell minus the view of a tropical 'worker's paradise' and the best medical care on the planet to make sure you stay alive for tomorrow's waterboarding.

              My first though, pre-caffiene, when reading the article title was of Darth Vader telling El Presidente "Do this, and your jou

            • Unless you're in the military. Then you get a tribunal.

              If you're in the military, you get a court-martial (or a non-judicial punishment, a.k.a. Article 15, for minor offenses -- but even there, you always have the right to request a court-martial, if you really think that's a good idea ...) Even official POWs get this. The "military tribunal" is a made-up kangaroo court which only applies to people falling into the equally made-up "enemy combatant" status.

          • by Bengie (1121981)
            If the government labels you a traitor, I don't think you get the pleasure of a jury. We're talking about "State secrets", not your regular commercial damages. Anyway, how can a government show commercial damages?

            I have a hard time believing the government can show that these leaks have any retail value at all.
            • by Shavano (2541114)

              In the United States, if the government accuses you of a crime (treason is a crime) you get a jury trial.

        • Think about it a $250,000.00 per violation times a couple million downloads times hundreds of documents equals the entire GDP for the planet for a thousand years or so

        • Good grief Bengie, this and your post above show a deep misunderstanding of how things work in your own justice system, what were you doing during civics class?
    • by macs4all (973270)

      If I remember right, government works automatically fall into public domain. Wikipedia seems to think so too: https://en.wikipedia.org/wiki/Public_domain#Government_works [wikipedia.org]

      Exactly!

      The government can't copyright ANYthing. That Stanford Law Journal article was written by one of our new breed of REALLY idiotic lawyers.

      Seriously. The quality of lawyers that are graduating now (by and large) is truly horrific. Our increasingly short-attention-spans do not good lawyers make!

      Welcome to Idiocracy!

      • by hemo_jr (1122113)

        Exactly! The government can't copyright ANYthing. That Stanford Law Journal article was written by one of our new breed of REALLY idiotic lawyers. Seriously. The quality of lawyers that are graduating now (by and large) is truly horrific. Our increasingly short-attention-spans do not good lawyers make! Welcome to Idiocracy!

        I blame it all on Dick Wolf. Twenty years of his shows stretching any and all laws to fit his prosecutors' agendas has presented the newly minted lawyers with a truly warped sense of law.

      • by St.Creed (853824)

        The German government holds the copyright to Mein Kampf and enforces it strictly. While mileage in the US may be different, governments can (and do) hold patents and copyrights. Or rather, their constituent parts can.

    • by Anonymous Coward

      If I remember right, government works automatically fall into public domain. Wikipedia seems to think so too: https://en.wikipedia.org/wiki/Public_domain#Government_works [wikipedia.org]

      Better go send a memo to the Stanford Law School lawyers who wrote the article--they must have not realized this!

    • If you follow the link at the very beginning of what you cited, you'll end up at this page [wikipedia.org], which states (emphasis mine):

      In general, under section 105 of the Copyright Act, such works are not entitled to domestic copyright protection under U.S. law, sometimes referred to as "noncopyright."

      The act only applies to U.S. domestic copyright as that is the extent of U.S. federal law. The U.S. government asserts that it can still hold the copyright to those works in other countries.

      So, saying they are in the public domain may be a bit of a misstatement. Rather, they are simply not entitled to domestic copyright protection.

  • by Skinkie (815924) on Sunday May 20, 2012 @09:39AM (#40056649) Homepage
    So how can they, if all government produced works actually fall in the public domain under the Freedom of Information Act?
    • They sue them in, say, France. Government works aren't public domain in all countries, just the US.

    • by Imrik (148191)

      They sue over things which were not produced by the government but for which the government holds the copyright.

    • So how can they, if all government produced works actually fall in the public domain under the Freedom of Information Act?

      Because that's not what the FOIA [wikipedia.org] does at all?

      The FOIA merely establishes methods, classifications, and time lines for disclosures of various government documents, and if you had looked into it at all, you'd know that it has a number of exemptions, the very first of which is that they do not need to disclose documents that are classified in the interest of national security.

      It's actually a common misconception that all government documents are in the public domain. Rather than being in the public domain howe

  • by Whammy666 (589169) on Sunday May 20, 2012 @09:42AM (#40056669) Homepage
    I seem to recall that works done by a government entity belong to the public and are not subject to copyright. Even so, this seems like a rather petty move. Of course, they tortured and held Bradly Manning is solitary confinement for a year without any charges so I guess expecting any sort of civility in the matter is unrealistic.
    • by ajdlinux (913987)
      In the US, sure. Outside of the US, US government works may very well be covered by local copyright laws. In many countries, government works are protected by copyright, and it may very well be the case that the same provisions apply to US government works within their jurisdiction.
      • Yes, but most of those countries have filing requirements.
        • No. Most (165) countries in the world have signed the Berne Convention [wikipedia.org], which prohibits them from requiring formal registration of works. Copyright is automatic and applies as soon as the work is made.

      • Doesn't the Berne Convention have a provision where if a work is PD in the country of origin, it's PD everywhere? I thought that was one of the selling points of the CTEA. If that's the case, the work is PD in the US, and the US is the country of origin, therefore it's PD throughout the world.
    • Rather, than being in the public domain, works produced by the U.S. government [wikipedia.org] are simply not provided with any domestic copyright protection. The difference may seem semantic, but it's not. What it means is that the U.S. government still holds the copyright on the works, so even though the copyrights are unenforceable by law in the U.S., they can still enforce those copyrights overseas, and thanks to the Berne Convention, other signatories are required to abide by those copyrights.

  • by Rich0 (548339) on Sunday May 20, 2012 @09:47AM (#40056695) Homepage

    Ok, if the punishments for copyright law are considered sufficient deterrence for things like treason or espionage that they're WAY too strong. Why on Earth would we want a set of laws that puts distributing a copy of a movie on the same level as disseminating nuclear weapon plans?

    • by Anonymous Coward on Sunday May 20, 2012 @10:19AM (#40056821)

      MPAA would love that.

    • The problem is extradition for espionage is rather difficult because it's considered a political crime, while copyright is more broadly protected internationally.

      • Yeah, but these are works that have no commercial value. Even if it could be done, which is iffy, you would have to prove monetary damages to the market product itself which is non existent. If you can't, there's no cause, or the punishment is minimal at best. Unless you can demonstrate that you routinely sell state secrets, that is. But as the state... do you really want to do something like that?
        • by gmhowell (26755)

          Yeah, but these are works that have no commercial value.

          Gigli [imdb.com] has no commercial value. It wouldn't prevent the MPAA from suing for a copyright violation.

          • I doubt they would put in the effort, honestly. Even if they did, the most they could get would be minimum statutory damages.
            • by gmhowell (26755)

              Plus they would open themselves up to a retaliatory lawsuit for intentional infliction of emotional distress.

  • Proving ownership (Score:5, Interesting)

    by perl6geek (1867146) on Sunday May 20, 2012 @09:56AM (#40056741)
    The US would have to prove ownership first, thus authenticating the leaked documents. Not quite what they want, is it?
    • by Shavano (2541114)

      But that only shows that the documents are of US government origin. The government doesn't have to reveal anything about their value or truthfulness to get a conviction

      As for Wikileaks and Assange, they would seem to have plenty of evidence that they conspired to commit and did in fact commit espionage against the USA.

      There are three reasons I can think of that they might not have gone against him more aggressively (yet):

      1. They're afraid of what he might reveal in that case.

      2. They are waiting for the co

    • Their reactions from day one have already confirmed the authenticity of the documents.
  • Public Domain - RTFA (Score:5, Informative)

    by Mattwolf7 (633112) on Sunday May 20, 2012 @09:56AM (#40056745)
    If you would download the article, there is an entire section addressing how the US Copyright Act actually addresses this issue:

    "The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad."

    Do you guys actually think this article would have been published in a legal journal missing such an obvious question?
    • by Herkum01 (592704)

      It seems to me that lawyers are in the business of using any excuse is used to justify their positions. I would not put much weight on the fact that it is a legal journal any more than I put on a "cold fusion" article in a science journal.

    • by makomk (752139)

      Now have fun finding a state that's willing to give copyright protection to US government works when the US isn't willing to permit copyright on them within the country.

  • by fredmosby (545378) on Sunday May 20, 2012 @10:07AM (#40056789)
    It is disturbing that the US government is going to such lengths to keep its own citizens in the dark. Something has gone very wrong in Washington.
    • by Shavano (2541114)

      This is nothing compared to the cold war.

    • They aren't. RTFS. This is a paper by some experts laying an hypothesis.

    • Facts cannot be copyrighted, but it's been upheld again and again that the presentation of facts can be copyrighted, and he leaked those diplomatic cables in their original, unaltered presentation. While he can't be prosecuted for copyright infringement since works of the U.S. government are entitled to no domestic copyright protection, overseas groups or people can be prosecuted since the U.S. still retains the right to do so overseas.

      It would be one thing if he read through them all and summarized the fac

  • by Anonymous Coward

    Funny how the land of the free wants to limit the freedom of the press.

    I can understand that a nation wants to protect it's secrets in order to protect it's people but it do not think it should go as far as taking away essential freedom to cover it's own failure's in doing so.

  • by Anonymous Coward

    Consider what was shown in those leaks makes me wonder why he is not a hero. The type of secrecy that was publish was damaging to how low we have fallen as a nation we should be ashamed but why would sociopath like leader be ashamed at all of what we do. I would seem that giving a dam is unhealthy for our new world order. Lets see what other bull our government comes up to kill the internet of free speech.

  • The US government cannot hold copyrights... on anything.
  • by Anonymous Coward

    "The United States has pursued Bradley Manning with full force for his role in supplying classified documents to WikiLeaks, in part because of the substantial difficulty in going after the organization directly."

    In addition to the little matter of treason. You know, the whole "betrayal of his country" and all that.

  • by CanHasDIY (1672858) on Sunday May 20, 2012 @12:19PM (#40057431) Homepage Journal
    The government's constant attempts to end-run the Constitution, or the fact that American citizens are helping them.
  • Was not copyright supposed to protect 'works of art intended for sale to prevent unauthorized copies to be sold in it's place'? Even the name says something about it's intentions... 'copy' & 'rights' ie the rights to copy.

    From wikipedia:

    Copyright initially was conceived as a way for government to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them. Copyrights are said to be territorial, which means that they do not extend beyond the territory of a specific state unless that state is a party to an international agreement. Today, however, this is less relevant since most countries are parties to at least one such agreement. While many aspects of national copyright laws have been standardized through international copyright agreements, copyright laws of most countries have some unique features.[2] Typically, the duration of copyright is the whole life of the creator plus fifty to a hundred years from the creator's death, or a finite period for anonymous or corporate creations. Some jurisdictions have required formalities to establishing copyright, but most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

    I fail to see how pure reports and letters could, or or even should, be protected by copyright.

    My thought on copyrights..

    Should not be subjected to copyright:
    - Letter intended for one single person. Should be protected by privacy-laws.
    - Surveillance camera or home-video

    • by mark-t (151149)
      " Anything that's not intended for distribution to the public." -- Already can be legally protected by trade secret status
  • It seems we've come full circle. Copyright started as a tool for censorship, and it may soon become one yet again.
  • Slashdot is full of mouthy hypocrites that have never held a security clearance. Nobody gets drafted, there are only volunteers and the vetting process is gruelling. So, all of you opinionated nobodies feel free to apply and then the 1% that actually get accepted betray the oath you have taken to get there. I am all for the death penalty for treason.
  • by cfulmer (3166)

    If I had a dollar for every cockamamie topic for a law student's obligatory note in a law journal, I'd be rich.

  • Copyright law happens to be the only handle you have on people who misappropriate email as well as it doesn't require a mutually agree acceptance of conditions.

    Email disclaimers have close to nil value, but a copyright notice is a kicker that gives leverage. Unless you're using Google, that is - read the T&Cs..

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