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Computer underground Digest Wed July 2, 1997 Volume 9 : Issue 52
ISSN 1004-042X
Editor: Jim Thomas (cudigest@sun.soci.niu.edu)
News Editor: Gordon Meyer (gmeyer@sun.soci.niu.edu)
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Field Agent Extraordinaire: David Smith
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #9.52 (Wed, July 2, 1997)
File 1--Federal Court invalidates Georgia anonymity law
File 2--Database Protection (fwd/Computer Law Observer)
File 3--ACLU Cyber-Liberties Update, June 19, 1997
File 4--CyberSitter threatens critics for linking, infringement
File 5--Cu Digest Header Info (unchanged since 7 May, 1997)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
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Date: Tue, 24 Jun 1997 07:25:03 -0400
From: jw@bway.net
Subject: File 1--Federal Court invalidates Georgia anonymity law
FEDERAL COURT INVALIDATES GEORGIA ANONYMITY LAW
Applies "real world" law to the online world
FOR IMMEDIATE RELEASE
Contact: Jonathan Wallace
(718)797-9808
jw@bway.net
New York, June 23, 1997--On Friday, a federal court in Georgia
granted a preliminary injunction against enforcement of a
Georgia law banning online anonymity and pseudonymity. Judge
Marvin H. Shoob held the state law to be vague and overbroad
in his decision in the case of ACLU v. Miller.
Significantly, Judge Shoob held that the Supreme Court
case of McIntyre v. Ohio applied to the on-line world.
In McIntyre, the Supreme Court invalidated an Ohio law
banning the distribution of political leaflets unless they
bore the author's name.
"What's good for the world of print should also apply
to electronic communications," said Jonathan Wallace,
a plaintiff in ACLU v. Miller. "There is no solid
ground for endorsing anonymity in paper leaflets and
then banning it in Web pages or email. Today, both
media are used in the same way for political and other
types of expression. If anonymity promotes diversity
of discourse in print, as the Supreme Court has recognized,
then it also should be allowed in the online world."
Wallace, a New York-based attorney and software executive,
is the co-author of Sex, Laws and Cyberspace (Henry Holt, 1996)
about Internet censorship. He was also a co-plaintiff in
ACLU v. Reno, the case involving the Communications Decency
Act due to be decided this week by the Supreme Court.
The text of Judge Shoob's decision can be obtained from
the Electronic Frontiers of Georgia (http://www.efga.org) and
ACLU (http://www.aclu.org) Web sites.
------------------------------
Date: Sun, 29 Jun 1997 10:52:54 +0100
From: wgalkin@LAWCIRCLE.COM(william galkin)
Subject: File 2--Database Protection (fwd/Computer Law observer)
Published by
Challenge Communications
=============================================================
May, 1997 Computer Law Observer Issue No. 25
=============================================================
The Computer Law Observer is distributed monthly for free by Challenge
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included. Copyright 1997 Challenge Communications.
++++++++++++++++++++++++++++++++++++++++++++++++++++++
JUST THE FACTS: Database protection
++++++++++++++++++++++++++++++++++++++++++++++++++++++
by William S. Galkin, Esq.
(biography at end)
Hard work is recognized as a necessary prerequisite to progress. Even
the Bible tells us that "[b]y the sweat of your brow you will eat bread
[Genesis 3:19]." However, there is a fierce debate taking place across
the globe on this very issue as it relates to databases: should the hard
work of database developers be rewarded by imposing new limits on
public access and use of data?
CURRENT LAW -
Under U.S. copyright law (which in this respect is similar to the laws
of many Western countries), databases must have some original or
creative elements in order to enjoy protection. Individual facts
themselves receive no protection under copyright law.
However, when facts are either selected or arranged in an original
manner, then the resulting work will be granted protection [17 U.S.C.
Sec. 101]. The opposite is true as well. Where there is no original
selection or arrangement of data, even though substantial effort and
expense have been invested, the resulting database will receive no
copyright protection. Herein lies the Achilles heal of database
protection.
In the past, some U.S. courts found this harsh result to be inequitable
and decided that effort alone should be a basis for granting copyright
protection. This was known as the "sweat of the brow" approach. However,
neither the U.S. Copyright Act nor the U.S. Constitution suggest such an
approach. And, in 1991, the U.S. Supreme Court settled the matter in
Feist Publications v. Rural Telephone Service [499 U.S. 340 (1991)], by
denying copyright protection based on effort alone.
In the Feist case, Rural published a white pages telephone directory for
part of Kansas. Feist sought permission from Rural to use the data in
its directory to create a directory covering a larger geographic area.
Rural refused to grant permission, and Feist then proceeded to copy much
of Rural's directory. The Supreme Court held that Rural's directory
enjoyed no copyright protection, because it contained no originality.
There was no original selection of data, because every person living in
a certain area was included. And, there was no original arrangement,
because the names were simply listed in alphabetical order.
DIGITAL DATA -
Feist demonstrated the vulnerability of data in hard copy. However, as
the cost and ease of digital data storage and transfer drops, the
vulnerability to exploitation of electronic databases dramatically
increases. Consider the recent case of ProCD, Inc. v. Zeidenberg [86 F3d
1447 (7th Cir. 1996)], where ProCD spent 10 million dollars to assemble
more than 95 million business listings from 3,000 telephone directories,
which it then sold to the public on CD-ROM. The defendant bought one of
the CDs for a modest fee. He extracted the data, uploaded it to his
website, and then charged people to access the data. Based on Feist, the
court held that the data was not protected by copyright because it
contained no originality. Nevertheless, the court was still able to put
a halt to this activity by finding that the defendant violated the terms
of the shrink-wrap license that accompanied the CD-ROM.
A NEW RIGHT -
Many have viewed the Feist decision and its progeny as a threat to
success of the growing database industry. So, in 1992, the European
Economic Commission responded with a proposal to create a new, sui
generis, protection that would offer protection for databases that do
not qualify for copyright protection. On March 11, 1996, this proposal
was adopted as the Directive on the Legal Protection of Databases
(Directive) by the European Parliament and the Council of European
Union.
The Directive requires members of the European Community to provide, by
January 1, 1998, for the protection of those databases that would not
qualify for copyright protection. However, the sui generis protection of
databases proposed by the Directive does not extend to databases
developed in countries that do not have laws providing for a similar
protection. Therefore, the Clinton Administration, apparently out of
fear that U.S. databases would be plundered by European highwaymen,
submitted a proposal for the sui generis protection of databases to the
World Intellectual Property Organization (WIPO) in early 1996. The U.S.
proposal was similar to a proposal submitted by the European Community
at the same time.
It may seem odd that the U.S., which currently offers no sui generis
protection for databases, would submit a proposal for a treaty to WIPO,
which if accepted, would eventually require the U.S. to adopt such a
protection. In an attempt to adjust for this apparent inconsistency, on
May 23, 1996, the Database Investment and Intellectual Property
Antipiracy Act was introduced into Congress (HR 3531). The U.S. proposal
at WIPO and HR 3531 were both drafted without any public debate. These
actions can best be explained as a short sighted end run effort to
effect quick passage of enactments that would otherwise give rise to
substantial debate.
THE PROVISIONS -
The provisions of the Directive, the WIPO proposals, and HR 3531 have
many similar elements. Under these proposals, protection would be
granted to databases that result from a "substantial investment." This
is not limited to a monetary investment. Under HR 3531, for example,
databases will be protected if they result from a substantial investment
of human, technical, financial or other resources. Additionally, the
investment does not have to have been devoted to the originating of the
database, but can apply, under the Directive, to the obtaining,
verification or presentation of the contents. The protected right
prohibits others from "using" (HR 3531) or "extracting" (Directive) a
substantial part of the database. Under HR 3531, "substantial" is
determined by evaluating whether the use adversely affects the potential
market for the database. The Directive provides for 15-year protection.
Whereas, HR 3531 provides for 25 years. These terms are renewable if
significant changes are made to a database.
ADEQUACY OF CURRENT PROTECTION -
At the heart of the current debate is whether the current copyright
regime is adequate to protect electronic databases. Protection of
intellectual property is provided for in the U.S. Constitution "[t]o
promote the Progress of Science and [the] useful Arts." U.S. Const. Art.
I, Sec. 8, cl.8. Therefore, in order to encourage such activity, we are
willing to grant the limited monopolistic protections provided by the
copyright and patent regimes. However, facts, in and of themselves, are
not the result of creativity, but are rather discovered. Some consider
creativity to be Constitutionally mandated, and therefore, extending
protection to facts could be unconstitutional.
As stated, copyright law requires that there be at least a modicum of
originality in the selection or arrangement of data. It is questionable
whether electronic databases have any arrangement at all, or whether the
arrangement of data is determined merely by the search requests of the
users. Often, databases will be composed of data that is selected in
some original manner. However, as the collection, storage and access
costs of data keep going down, and the demand for databases continues to
rise, the trend towards truly comprehensive databases (where there is no
selection) can be expected to increase.
For these and other reasons, many believe that electronic databases
require new and additional protection. However, as discussed below, the
sui generis proposals may end up causing more harm than good.
POSSIBLE CONSEQUENCES OF SUI GENERIS PROTECTION -
Fears have been expressed concerning the consequences of implementing
the sui generis protections as currently contemplated. This new
protection could result in a barrier to fact gathering by such people as
journalists, educators, researchers and scientists, who require
extensive access to information in order to perform their work. Much
information used by such persons is currently available in the public
domain or permitted from private sources through various "fair use"
exceptions to exclusive rights granted to the owners [17 U.S.C. Sec.
107].
Additionally, government data that is currently in the public domain may
no longer be freely available to the public. This is because once a
substantial investment has been made by a private entity in the
verification, organization or presentation of the data, then sui generis
protection may attach to such data.
Electronic databases are dynamic, always changing and growing. HR 3531
and the Directive provide that terms of protection can be renewed for
subsequent terms where there is a change of commercial significance. The
result would be perpetually renewing protection. Such perpetual
protection was never contemplated for copyrights and patents, and would
further limit public access to data.
HR 3531 prohibits copying except of an "insubstantial part" of the data.
This would permit copying only where the copying would not be construed
to adversely affect the potential market for the data. If micro sales
become possible and popular on the Internet, and individual pieces of
data could be sold, would there remain a concept of "insubstantial
part?"
Due to the extremely high cost of entry, the database industry is
characterized by a small number of providers. This market monopoly over
facts, strengthened by a sui generis protection, could be extremely
detrimental and would go counter to the concept of the free and
unrestricted exchange of information that the U.S. scientific community
has long advocated.
Those advocating sui generis protection claim that commercialization of
data will encourage, rather than stifle database development. While this
might be true, no studies have been conducted to support this result.
ALTERNATIVES TO SUI GENERIS PROTECTION -
Several alternatives have been suggested to the current proposals for
sui generis protection.
One is simply to tailor the sui generis model in order to address many
of the concerns discussed above. For instance, carve out research and
education exceptions to the use restrictions. Establish a regime for
compulsory licensing of data from private databases at rates affordable
by those needing access while adequately compensating the database
developers.
Another alternative is to rely on the laws of misappropriation. For
instance, in the case of International News Service (INS) v. Associated
Press (AP) [248 U.S. 215 (1918)], the Supreme Court prohibited INS from
transmitting AP's uncopyrighted news reports available on the East Coast
to its reporters on the West Coast. The Court found that a lead time
advantage was being misappropriated and enjoined INS from transmitting
the information for as long as there remained commercial advantage in
the lead time of AP's early reports. However, the application of the law
of misappropriation to databases would be unpredictable because various
factors will have to be raised and proved in each case.
An additional alternative is to simply let the chips fall where they
may, forcing database developers, without the assistance of monopolistic
assistance, to compete for business. This competition might take the
form of providing the best database services, through reliability and
real-time updates, that no exploiter can compete with. Additionally,
revenues can follow the current trend on the Internet of selling
advertising based upon audience size, rather than seeking license fees
for use.
CONCLUSION -
HR 3531 and the U.S. proposal at WIPO were drafted without seeking
general input from those who would be most directly affected, namely the
scientific and academic communities. Both HR 3531 and the U.S. proposal
to WIPO failed to be enacted. However, it is certain that similar
proposals will resurface in the near future. The next time around, the
public will be best served if the proposals are subject to full public
debate. The implications of sui generis protection are potentially
enormous, and enactments should not be rushed through due to fear of
foreign competition or simply to ease the fear of U.S. database
developers.
ABOUT THE AUTHOR:
Mr. Galkin can be reached for comments or questions about the topic
discussed in this article as follows:
E- MAIL: wgalkin@lawcircle.com
WWW: http://www.lawcircle.com/galkin
TELEPHONE: 410-356-8853/FAX:410-356-8804
MAIL: 5907 Key Avenue
Baltimore, Maryland 21215
Mr. Galkin is an attorney with over 10 years representing small startup,
midsized and large companies, across the U.S. and internationally,
dealing with a wide range of legal issues associated with computers and
technology, such as developing, marketing and protecting software,
purchasing and selling complex computer systems, launching and operating
a variety of online business ventures, and trademark and copyright
issues. He is a graduate of New York University School of Law and the
adjunct professor of Computer Law at the University of Maryland School
of Law.
------------------------------
Date: Thu, 19 Jun 1997 21:33:35 GMT
From: "ACLU Cyber-Liberties Update Owner"@newmedium.com
Subject: File 3--ACLU Cyber-Liberties Update, June 19, 1997
http://www.firstamendment.org/
A new ACLU/EPIC website
Take the First Amendment Pledge
As we all await a Supreme Court decision on the future of free speech on
the Internet, the American Civil Liberties Union and the Electronic Privacy
Information Center launched www.firstamendment.org, a website dedicated to
upholding the First Amendment in cyberspace.
The groups called on President Clinton and members of Congress to be among
the first to "Take the First Amendment Pledge" and cease any further
attempts to draft legislation to censor the Internet in the event the
Supreme Court upholds a lower court decision striking down government
regulation of the Internet as unconstitutional.
The launch of the website comes as Clinton Administration officials have
begun publicly discussing a shift in policy on Internet regulation, saying
that "industry self-regulation" -- not laws criminalizing certain Internet
communications -- is the solution to shielding minors from online
"indecency."
"Attempts to censor the Net will not end with the Supreme Court decision,"
said David Sobel, legal counsel for EPIC and co-counsel in Reno v. ACLU.
"Proponents of Internet content regulation have already indicated their
desire to take a 'second bite of the apple' if the Communications Decency
Act is struck down."
In anticipation of such new attempts at online censorship, visitors to
www.firstamendment.org are invited to "Take the First Amendment Pledge,"
which reads: "I pledge to support free speech and free expression for all
Americans and to urge Congress to uphold the First Amendment to the United
States Constitution and pass no law abridging our freedom of speech."
People taking the pledge are encouraged to place the "First Amendment
Pledge" GIF their own websites.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Day of Decision Events
As the countdown continues to a Supreme Court ruling in Reno v. ACLU, the
first-ever case to look at how free speech principles are applied to the
Internet, the American Civil Liberties Union is preparing to go live on the
World Wide Web with a cybercast news conference on the day a decision is
reached.
Day of Decision Schedule
1:00 p.m.(E.D.T.) Press Conference and Cybercast
At the ACLU's new national offices at 125 Broad Street in lower Manhattan.
Reno v. ACLU attorneys, co-counsel and plaintiffs will participate. The
live cybercast can be accessed through the ACLU's website,
http://www.aclu.org, and directly through Pathfinder's Netly News at
http://www.pathfinder.com/news/netdecency.
7:00 p.m. (E.D.T.) Live Chat with ACLU Attorneys
A one-hour chat with ACLU attorneys is planned on ECHO.
Instructions:
ECHO chats are open to anyone with Internet access.
Telnet to echonyc.com, or dial 212-292-0910 with your modem.
Login as echolive, and communicate directly with the Attorneys.
Reno v. ACLU challenges censorship provisions of the Communications Decency
Act aimed at protecting minors by criminalizing so-called "indecency" on
the Internet. The government appealed the case to the Supreme Court after a
federal three-judge panel ruled unanimously last June that the law
unconstitutionally restricts free speech. The ACLU filed a challenge to
the law the day it was enacted.
Show your support for the ACLU's challenge to the Communications Decency in
any -- or all -- of the following ways:
1) To be notified of a decision in the case by a change in a graphic placed
on your web site, join our GIF notification Campaign -- instructions can be
found at: http://www.aclu.org/issues/cyber/trial/instructions.html
The image will change when the decision is handed down - notifying you, and
everyone who visits your site.
2) Take the 1st Amendment Pledge at www.firstamendment.org, a joint
campaign of the ACLU and the Electronic Privacy Information Center (EPIC).
3) Subscribe to the Cyber-Liberties Update. Those of you who already
receive the update directly will be notified. Those of you who read
forwarded copies are encouraged to subscribe directly using the information
in the footer of this document.
4) And the most important way you can show your support is to Join the ACLU.
Information is available on our website http://www.aclu.org
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
ACLU Cyber-Liberties Update Editor:
Lisa Kamm (kamml@aclu.org)
American Civil Liberties Union National Office
125 Broad Street
New York, New York 10004
To subscribe to the ACLU Cyber-Liberties Update, send a message
to majordomo@aclu.org with "subscribe Cyber-Liberties" in the
body of your message. To terminate your subscription, send a
message to majordomo@aclu.org with "unsubscribe Cyber-Liberties"
in the body.
The Cyber-Liberties Update is archived at
http://www.aclu.org/issues/cyber/updates.html
For general information about the ACLU, write to info@aclu.org.
PGP keys can be found at http://www.aclu.org/about/pgpkeys.html
------------------------------
Date: Thu, 3 Jul 1997 17:31:29 -0400
From: Declan McCullagh <declan@well.com>
Subject: File 4--CyberSitter threatens critics for linking, infringement
((MODERATORS' NOTE: Brian Milburn, pusher of CyberSitter,
continues to hound his critics, this time with the threat of a
lawsuit. Milburn's tactics raise a number of issues, as Declan
McCullagh indicates))
Source - fight-censorship@vorlon.mit.edu
The following note from Milburn's lawyer, which is more rhetorical than
reasoned, nevertheless raises two interesting points: