Freedom to Tinker

In today’s New York Times, Stephen Labaton reports on the continuing controversy over the FCC’s impending Broadcast Flag rules. In the midst of a back-and-forth about the rules, Labaton writes this:

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

Somebody is really confused here about how the Internet works. Maybe it’s the reporter, or maybe it’s the FCC source, or maybe (God forbid) both.

If this statement bears any connection to reality, it’s cause for serious worry. I can’t think of any way of translating the statement into a technically coherent form that doesn’t involve the FCC redesigning the basic workings of the Internet.

UPDATE (8:55 PM): Seth Schoen has solved the mystery; see his comment. The mystery sentence looks like a very confused attempt to explain the fact that DTCP-over-IP sets the Time-To-Live field on its IP packets equal to three.

Ernest Miller reports that Swarthmore now is yanking the Net connections of students who linking to a page that links to a page containing the infamous Diebold memos.

So Swarthmore students can’t make a two-hop link to the memos (i.e., a link to a link to the memos). Can they make a three-hop link, say by linking to Ernest Miller’s report? Can they make a four-hop link, say by linking to the page you are reading right now? Can they make a five-hop link, say by linking to my personal home page? Maybe some enterprising Swarthmore student will do an experiment to find out.

UPDATE (1:40 PM, Oct. 27): James Grimmelmann at LawMeme says that Diebold’s own home page contains a five-hop link.

A group of Swarthmore students has published a damning series of internal memos from electronic-voting vendor Diebold. The memos appear to document cavalier treatment of security issues by Diebold, and the use of non-certified software in real elections. Diebold, claiming that the students are infringing copyright, has sent a series of DMCA takedown letters to Swarthmore. Swarthmore is apparently shutting off the Internet access of students who publish the memos. The students are responding by finding new places to report the memos, setting up what Ernest Miller calls a “whack-a-mole game”. (See, for example, posts from Ernest Miller and Aaron Swartz.)

Here is my question for the lawyers: Is this really copyright infringement? I know that copyright attaches even to pedestrian writings like business memos. But don’t the students have some kind of fair use argument? It seems to me that their purpose is noncommercial; and it can hardly be said that they are depriving Diebold of the opportunity to sell the memos to the public. So the students would seem to have a decent argument on at least two of the four fair-use factors. So it might be fair use.

Even if the students are breaking the law, what Diebold is doing in trying to suppress the memos certainly doesn’t further the goals underlying copyright law. A trade secret argument from Diebold would seem to make more sense here, although the students would seem to have a free-speech counterargument, bolstered by the strong public interest in knowing how our votes are counted.

Can any of my lawyer readers (or fellow bloggers) help clear up these issues?