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Dornseif: Technological Definitions in the Law

September 9, 2002 by

Maximillian Dornseif offers some comments following up on my previous posts about Source vs. Object Code, and definitions in the Berman-Coble bill. A brief excerpt:

The court system and legal doctrine is built all arround definitions. While defining things like cruelty, carelessness and such stuff is a well understood problem for lawmakers and courts, technical circumstances seem to be a major problem.

By way of example he quotes a 124-word definition of “railway” from a German law.

He considers several explanations for this phenomenon (lawyers’ technophobia, techies’ lawphobia, technological change outracing the legal process, etc.) and finds them all valid, but not sufficient to explain the size and scope of the problem.

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The Other Digital Divide

September 6, 2002 by

Long and well-written articleby Drew Clark and Bara Vaida in the National Journal’s Tech Daily, about the history of the current Hollywood vs. Silicon Valley battle over copy protection. If you’re still coming up to speed on this issue, the article is a great scene-setter. Even if you know the issue well, you still might learn a thing or two.

My favorite telling detail:

Valenti warned that the Hollings approach “might be what had to happen.”

No, the tech executives said, a process to resolve differences between the two industries was already in place: the technical working group formed in 1996. But Valenti wanted a CEO-level dialogue, not another meeting of the engineers.

Dilbert fans will recognize this as a classic Pointy-Haired Boss tactic: “We can’t solve this engineering problem. Maybe if we kick the engineers out of the room we can solve it faster.”

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"Peer to Peer" in the Berman-Coble Bill

September 6, 2002 by

Yesterday’s defense of the Berman-Coble bill resurrected the argument that the bill only hurts the bad guys, because it authorizes hacking only of peer to peer file trading networks. And we all know that “Decentralized P2P networks were designed specifically (and ingeniously) to thwart suits for copyright infringement by ensuring there is no central service to sue.”

Let’s look at the bill’s definition:

‘peer to peer file trading network’ means two or more computers which are connected by computer software that–
(A) is primarily designed to – (i) enable the connected computers to transmit files or data to other connected computers; (ii) enable the connected computers to request the transmission of files or data from other connected computers; and (iii) enable the designation of files or data on the connected computers as available for transmission; and
(B) does not permanently route all file or data inquiries or searches through a designated, central computer located in the United States;

The definition clearly includes non-controversial technologies, such as the Web itself, that were not designed with copyright infringement in mind.

This is not just an easily-fixed bug in the bill’s definition. Instead, it reflects the fact that the Internet’s design philosophy is based on a peer to peer model in which anyone can send anything to anybody. The big-central-server design of a system like Napster is the historical exception; peer to peer is the rule.

I don’t see an easy way to rewrite the definition to draw a clear technical line between “bad” peer to peer technologies and “good” ones.

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More on China's Blocking of Google

September 5, 2002 by

Several readers responded to my previous entry on China’s censoring of Google.

Jeremy Leader pointed out that Google offers a cached copy of any page on the Web. Google’s cache would allow easy access to any blocked page, so any effective blocker must block Google.

Seth Finkelstein points to his previous discussion of overblocking due to the “need” to censor caches, search engines, and the like. The court decision striking down CIPA (the law that required libraries to use blocking software) even mentions this:

As noted above, filtering companies often block loophole sites, such as caches, anonymizers, and translation sites. The practice of blocking loophole sites necessarily results in a significant amount of overblocking, because the vast majority of the pages that are cached, for example, do not contain content that would match a filtering company’s category definitions. Filters that do not block these loophole sites, however, may enable users to access any URL on the Web via the loophole site, thus resulting in substantial underblocking.

Given the proliferation of indices, search engines, archives, translators, summarizers, and other meta-level tools on the web, the censor’s job is getting harder and harder. The people creating such sites surely outnumber the censors many times over.

Another person explained to me how to defeat China’s blocking, using simple methods well within the capability of an average Web user. The trick has two parts. The first part is to configure your browser to use any ordinary Web proxy outside China. The second part is just as easy, but I’d rather not say what it is. This method allowed access to any blocked site from within China, as of a few months ago.

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Preliminary Injunction Against Aimster

September 5, 2002 by

A Federal judge has issued a preliminary injunction against the Aimster file sharing service.

The judge found it likely that Aimster will ultimately (after all the evidence is heard) be found liable for contributory and vicarious copyright infringement. Based on a quick reading, it looks like this is based on Aimster’s involvement in promoting the available files, the use of infringing files as examples in its documentation, and on its failure to enforce its stated policy of kicking off infringers.

The opinion has some commentary on the Supreme Court’s Sony Betamax decision, hinting that Betamax established a standard based on the “primary use” of a product.

The exact terms of the injunction (i.e. what Aimster will be required to do or not do) are yet to be decided.

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