Week 8, Mar 13 Midterm: Sat-Tues?? =============================== Look up: paladin press. Still alive and well at paladin-press.com. THey're still selling "anti-social" books on guns, lockpicking, knives, the military, "extreme" privacy, hiding assets, etc. But nothing matching "blasting", "explosives", or "bomb". One site I found was devoted to arguing that Ammonium Nitrate could *not* be used as a high explosive, and that therefore all those explosions (Oklahoma city, WTC 1993, Bali nightclub) attributed to it were in fact likely the work of the CIA. Hmm. Ammonium Nitrate + Fuel Oil = ANFO explosive. Chemical process of ANFO explosion is unclear to me: is it a result of AN->02, and 02+fueloil=> fast burning, or is it the same unstable-nitrogen-bond issue that drives nitroglycerin and trinitrotoluene (TNT) explosions? ========================================== Batzel v Cremers Previous cases: Cubby v CompuServe: 1991, District court only, New York State Does anyone remember compuserve? Giant BBS available to paid subscribers. The "rumorville" section, part of the Journalism Forum, was run by an independent company, Don Fitzpatrick Associates. Contract guarantees DFA has "total responsibility for the contents". Rumorville is in essence an online newspaper; essentially it's an expanded gossip column about the journalism industry. I have no idea who paid whom for the right to be present on CompuServe. 1990: Cubby Inc and Robert Blanchard plan to start a competing online product, Skuttlebut. This is disparaged in Rumorville. Cubby et al sue DFA & Compuserve for libel. Compuserve is only distributor; they escape liability. In fact, they escape with Summary Judgement! Court rules that they had no control at all over content. They are like a bookstore, or a *distributor*. While CompuServe may decline to carry a given publication altogether, in reality, once it does decide to carry a publication, it will have little or no editorial control over that publication's contents. This is especially so when CompuServe carries the publication as part of a forum that is managed by a company unrelated to CompuServe. CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so. It was and is generally accepted that distributors have no liability for content (unless it can be proven that they encouraged the content). ============ Stratton Oakmont v Prodigy: New York *state* court 1995 On a financial matters forum called "Money Talk," a Prodigy user posted about Daniel Porush, the president of Stratton Oakmont, a financial services company. The remarks called Porush a "criminal" and that "" Prodigy claims Compuserve defense in motion for summary judgement. Prodigy loses *because* they promise to monitor for bad behavior on the board. At the very least, they CLAIM to the public that they reserve the right to edit or remove messages. This was in fact part of Prodigy's family-oriented marketing. Prodigy was trying to do "family values" editing, and it cost them. Prodigy did have some internal confusion about whether they were for the "free expression of ideas" or were "family safe" Prodigy's policy was to ban individual attacks, but not group attacks; anti-semitic rants did appear and were not taken down. [After Prodigy lost motion for summary judgement, case was presumably settled.] ======= Enter the CDA. Section 230 was intended to *encourage* family-values editing. Whether this was specifically to encourage providers to remove profanity & obscenity, the targets of the CDA, or whether it was just a compensatory free-speech-positive clause in an overall free-speech- very-negative law is not clear. Most of Congress did not expect the CDA to withstand judicial scrutiny. Congressional documents suggest fixing Stratton Oakmont precedent was the primary purpose of section 230. ========================================== CDA - Communications Decency Act passed 1996. 1. restricts access to "indecent" material by children. This was and is a HUGE problem, as there is no obvious way to authenticate adults except to require credit cards, and there is lots of material on sexuality AND MEDICINE that might be considered "indecent" in some jurisdictions. uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards WHICH COMMUNITY? Is FCC model for mature-content TV (later at night) applicable? NO! (Does this FCC model even exist any more?) Philadelphia District Court very quickly granted an injunction blocking enforcement, and later found the law unconstitutional. SCOTUS affirmed a year later. Moreover, the supreme court clearly "got it" about the online world. 2. Declares "operators of Internet services" to not be liable for their content, if provided by others. This is Section 230: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. [Wikipedia] Covers libel AND copyright issues, and any other liability. (Copyrighed material is still subject to Takedown) ============================================================= Batzel v Cremers summary * Facts Robert Smith was a handyman who worked for Ellen Batzel at her North Carolina home, doing repairs to house and vehicles. He claims: 1. Batzel told him that she was "the granddaughter of one of Hitler's right-hand men" 2. He overheard Batzel tell someone that she was related to Heinrich Himmler (or else this was part of conversation #1) 3. He was told by Batzel the paintings were "inherited" After a dispute with Batzel [either about payments for work, or about Batzel's refusal to use her Hollywood contacts to help Smith sell his movie script], he sent all this in an email to Ton Cremers, who ran a stolen-art mailing list. Smith found Cremers by through a search engine. Smith claimed in his email that some of Batzel's paintings were likely stolen by the Nazis. (p 8432) Smith sent the email to securma@museum-security.org Cremers ran a moderated listserv specializing in this. He included Smith's email in his next release. Cremers exercised editorial control both by deciding inclusion and also by editing the text as necessary. He included a note that the FBI had been notified. Normal address for Cremer's list was: securma@x54all.nl Smith's emailed reply to someone when he found out he was on the list: I [was] trying to figure out how in blazes I could have posted me [sic] email to [the Network] bulletin board. I came into MSN through the back door, directed by a search engine, and never got the big picture. I don’t remember reading anything about a message board either so I am a bit confused over how it could happen. Every message board to which I have ever subscribed required application, a password, and/or registration, and the instructions explained this is necessary to keep out the advertisers, cranks, and bumbling idiots like me. Some months later, Batzel found out and contacted Cremers, who contacted Smith, who continued to claim that what he said was true. However, he did say that he had not intended his message for posting. On hearing that, Cremers did apologize to Smith. Batzel disputed having any familial relationship to any Nazis, and stated the artwork was not inherited. Batzel sued: Smith (who has no money) Cremers Netherlands Museum Association Mosler, Inc The latter was included because they paid for ads on the site. Cremers filed for: * summary judgement under anti-SLAPP rules * motion to dismiss for lack of jurisdiction He lost on both counts. Famous Section 230 case. ======================= *IS* cremers like an ISP here? The fact that he is editing the list he sends out sure gives him an active role, and yet it was Prodigy's active-editing role that the CDA section 230 was arguably intended to protect. Does this immunize employers against claims of sexual harrassment though employer-sponsored email? Is that ok? Is the other interpretation (that employers *are* liable) fair, either? * Legal history * decision *Is* Cremers like an ISP here? Why does Communications *Decency* Act have such a strong free-speech component? Generally free speech is something the *in*decent are in favor of. 9th Circuit (Federal Appellate court in CA, other western states) Judge Berzon: Opening There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech “providers and users of interactive computer services” when the defamatory or obscene material is “provided” by someone else. Note up-front recognition that this is due to *Congress*. Section 230 was first offered as an amendment by Representatives Christopher Cox (R-Cal.) and Ron Wyden (D-Ore.). Congress made this legislative choice for two primary reasons. First, Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce. ... The second reason for enacting § 230(c) was to encourage interactive computer services and users of such services to self-police the Internet for obscenity and other offensive material [extensive references to congressional record] In particular, Congress adopted § 230(c) to overrule the decision of a New York state court in Stratton Oakmont, 1995 Regarding question of why a pro-free-speech clause was included in an anti-free-speech law (or, more precisely, addressing the suggestion that section 230 shouldn't be interpreted as broadly pro-free-speech simply because the overall law was anti-free-speech): Tension within statutes is often not a defect but an indication that the legislature was doing its job. ======= To benefit from § 230(c) immunity, Cremers must first demonstrate that his Network website and listserv qualify as “provider[s] or user[s] of an interactive computer service.” District court limited this to ISPs. Circuit court argued that (a) Cremers *was* a provider of a computer service, and (b) that didn't matter because he was unquestionably a USER. Critically, however, § 230 limits immunity to information “provided by another information content provider.” Here's one question: was *Smith* "another content provider"? You can link and host all you want, provided others have created the material **for online use**. The other question is whether Cremers was in fact partly the "provider", by virtue of his editing. Answer to first question: Obviously, Cremers did not create Smith’s e-mail. Smith composed the e-mail entirely on his own. Nor do Cremers’s minor alterations of Smith’s e-mail prior to its posting or his choice to publish the e-mail (while rejecting other e-mails for inclusion in the listserv) rise to the level of “development.” More specifically, there is simply no way to extend immunity to Stratton Oakmont -type editing, or to removing profanity, while failing to extend immunity "all the way". ******** Is that actually true? ******** Court considers some other partial interpretations, but finds they are unworkable. Second point: Smith’s confusion, even if legitimate, does not matter, Cremers maintains, because the § 230(c)(1) immunity should be available simply because Smith was the author of the e-mail, without more. We disagree. Under Cremers’s broad interpretation of § 230(c), users and providers of interactive computer services could with impunity intentionally post material they knew was never meant to be put on the Internet. At the same time, the creator or developer of the information presumably could not be held liable for unforeseeable publication of his material to huge numbers of people with whom he had no intention to communicate. The result would be nearly limitless immunity for speech never meant to be broadcast over the Internet. Sent back to district court to determine We therefore ... remand to the district court for further proceedings to develop the facts under this newly announced standard and to evaluate what Cremers should have reasonably concluded at the time he received Smith’s e-mail. If Cremers should have reasonably concluded, ===> for example, that because Smith’s e-mail arrived via a different e-mail address it was not provided to him for possible posting on the listserv, then Cremers cannot take advantage of the § 230(c) immunities. =========================================================================== (Potential) corporate liability for sexual harassment is most frequently cited justification for lack of employee privacy regarding company email. Should this liability be there? =========================================================================== Since this case, there have been MANY others decided by application of this decision. See eff.org's section on Free Speech. There have also been many attacks on Section-230 immunity. Some limitations may come, someday. Publisher liability: liability even without knowledge of defamatory material's inclusion: Distributor liability: liability for knowingly distributing defamatory material Best approach to attack section-230 immunity: distributor liability =========================================================================== =========================================================================== What about "hate sites": * denying Holocaust * anti-Jewish in other ways * anti-homosexual What about: christiangallery.com/atrocity christiangallery.com/atrocity/aborts.html http://www.xs4all.nl/~oracle/nuremberg/aborts.html (with strikethrough) Is this a hate site? (links to these without the fetus-parts pictures are on my website) ===================================== Defamation Prior Restraint is seldom allowable ====================================================================== ====================================================================== Planned Parenthood v American Coalition of Life Activists "Nuremberg" site was founded by Neal Horsley, with the nominal idea of gathering evidence for the day when abortion providers might be tried for "crimes against humanity". (In such cases, the argument "it was legal at the time" is not accepted.) Case filed 1995, after some abortion providers had been murdered (eg Dr Hugh Short) and "wanted" posters were issued by ACLA for others. There was a federal law, the 1994 Federal Freedom of Access to Clinic Entrances Act (FACE), that provided protections against *threats* to abortion providers. Horsley's site was created in 1997, and added to the case. Horsley's actual statements are pretty much limited to facts and to opinions that are arguably protected. He does *not* make any explicit calls to violence. 1998: Dr Barnett Slepian is killed at home District court (1999): jury found several items to be "true threat to bodily harm" Judge: I totally reject the defendants' attempts to justify their actions as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from engaging in providing abortion services. Issued injunction, $100 million verdict. Under current free-speech standards, you are allowed to threaten people. You are allowed to incite others to violence. You are not allowed to incite anyone to imminent violence, and you are not allowed to make threats that you personally intend to carry out. 9th Circuit 3-judge panel overturned the injunction. Judge Kosinski, basing his ruling on NAACP v Claiborne Hardware, SCOTUS 1982 The NAACP had organized a boycott of some white-owned businesses, and had posted activists to take down names of black patrons. The NAACP liaison, Charles Evers [brother of Medgar Evers] had stated publicly that those ignoring the boycott would be "disciplined" and at one point said "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Supreme Court found in the NAACP's favor, on the grounds that there was no evidence Evers had authorized any acts of violence, or even made any direct threats (eg to specific individuals). Kozinski argues that whatever the ACLA was doing was less threatening than what Evers was doing, and therefore dismisses the case. Full 9th-circuit then heard the case, _en banc_ Ruling is by judge Rymer, dissents by judges Reinhardt, Kozinski (of PP 3-judge PP v ACLA), and Berzon (of Batzel v Cremers) 5 pages of plaintiffs / defendants Here's their problem with the NAACP situation: Even if the Gunn poster, which was the first “WANTED” poster, was a purely political message when originally issued, and even if the Britton poster were too, by the time of the Crist poster, the poster format itself had acquired currency as a death threat for abortion providers. Gunn was killed after his poster was released; Britton was killed after his poster was released; and Patterson was killed after his poster was released. Here's Rymer's summary: We now conclude that it was proper for the district court to adopt our long-standing law on “true threats” to define a “threat” for purposes of FACE. FACE itself requires that the threat of force be made with the intent to intimidate. Thus, the jury must have found that ACLA made statements to intimidate the physicians, reasonably foreseeing that physicians would interpret the statements as a serious expression of ACLA’s intent to harm them because they provided reproductive health services. ... We are independently satisfied that to this limited extent, ACLA’s conduct amounted to a true threat and is not protected speech threats are not the same as libel. Section II: (p 7098) discussion of why the court will review the facts (normally appeals courts don't) as to whether ACLA's conduct was a "true threat" Section III (p 7105) ACLA claims actions were "political speech" and not an incitement to imminent lawless action. Posters have no explicitly threatening language! Further, ACLA submits that classic political speech cannot be converted into non-protected speech by a context of violence that includes the independent action of others. This is a core problem: can context be taken into account? Can possible actions of others be taken into account? Text of FACE: Whoever... by force or threat of force or by physical obstruction, intentionally injures, INTIMIDATES or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been [a provider of reproductive health services] “[n]othing in this section shall be construed . . . to prohibit any expressive conduct ... protected from legal prohibition by the First Amendment This subjects them to civil remedies, though perhaps not prior restraint. Cases cited: Brandenburg v Ohio, SCOTUS 1969: 1st amendment protects speech advocating violence, so long as the speech is not intended to produce "imminent lawless action" (key phrase introduced) and is not likely to produce such action. Clarence Brandenburg was a KKK leader who invited the press to his rally, at which he made a speech referring to the possibility of "revengeance" against certain groups. No specific attacks OR TARGETS were mentioned. Robert Watts v United States, SCOTUS 1969 Watts spoke at an anti-draft rally (actually a DuBois Club meeting): “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Held to be political hyperbole. Overturned long precedent regarding threats. Particular attention to NAACP v Claiborne. Distinction: there was no violence then! Decision was that Evers' speeches did not incite illegal activity, and thus did not lead to business losses. No "true threat" determination was made nor needed to be made. Also, Evers' overall tone was to call for *non-violent* actions such as social ostracism. This leaves Watts as the only SCOTUS case dealing with "true threats" issue. Roy v United states: USMC private hears Nixon is coming and says "I am going to get him" Whether a particular statement may properly be considered to be a threat is governed by an objective standard -- whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. Note this "reasonable person" standard. No hiding behind "that's not really what we meant". Also, intent to carry out is not required: It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat. [communicates it as a serious threat, that is, not just hyperbole] ACLU amicus brief: The person must have *intended* to threaten or intimidate. Rymer: this test is included in the language of FACE; ACLA has met this test long ago. Two dissents argue that the speaker must "actually intend to carry out the threat, or be in control of those who will" But Rymer argues that the court should stick with the "listener's reaction"; ie the reasonable-person standard again. Conclusion of this line of argument (intent v how it is heard): Therefore, we hold that “threat of force” in FACE means what our settled threats law says a true threat is: a statement which, in the entire context and under all the , circumstances a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person. So defined, a threatening statement that violates FACE is unprotected under the First Amendment. Crucial issue: the use of the strikeout and grey-out. This is what crosses the line. The posters are a true threat because, like Ryder trucks or burning crosses, they connote something they do not literally say, yet both the actor and the recipient get the message. ========== Supreme court refused to hear the case. Ninth Circuit had established that the speech in question met certain standards for being a true threat, and the ACLA would have had to argue that some factual interpretations were mistaken. But the Supreme Court does not generally decide cases about facts; they accept cases about significant or conflicting legal principles. ===================================== corporate cybersmear: essential problem: * employee posts something critical at a site, "anonymously" * employer sues site, claiming libel * site caves, and provides real identity of poster * suit is dropped, poster is FIRED. =================================================== gatt.org, and cyberhoax Is this funny? Or serious? Note that it keeps changing. Try to find the ones that are actually there. Draw attention to site names. ========================================== Julie Cohen, p 105-106 I found this article awkwardly written. Arguments: 1. our original speech & writings are RESPONSES to others 2. copyright-management systems MUST ensure reader privacy (note that this is NOT automatic for some systems!) ===================== Blocking and censorship Eugene Volokh on the need for editing! That is, in a world where everyone has the right of speech, how do you decide to whom to listen? ====================================================================== Is source code speech? Well, is it? Cases where it's been debated: * DMCA anti-circumvention (eg deCSS) * encryption Suppose you make F-16 fighters. You need an export permit to sell these oversees. What about if you make open-source encryption software? Ditto! Even if you GIVE IT AWAY!! BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with RSA on it. ====================================================================== ====================================================================== PATENTS Do they help advance progress? or hinder it? Intended to cover INVENTIONS rather than IDEAS. If you have an idea to sell hamburgers with salsa, or newspapers & beer together, or to create a website where people can post their own stuff, that's an IDEA. It can't be protected: everyone else is entitled to copy it freely. ============================================================= My (former) three-part test on when it is appropriate to recognize software patents: 1. The Supreme Court has turned down your last appeal 2. Federal marshals surround your cabin in the woods 3. You are out of ammo This could probably get me in trouble. ============================================================= Issues: * problems with the patent system generally * problems with the patent office as applied to software * fundamental problems with software patents Wright brothers patent on wing-warping History of software patents for a long time, software was held to be unpatentable, as mathematical algorithms are unpatentable. 1972: Gottschalk v Benson: can't patent a mathematical algorithm 1973: ATT somehow manages to patent setuid bit, claiming it's hardware patent dedicated to the public domain in 1979. 1981: Diamond v Diehr: computer + machine IS patentable. For a long time after, software patents always described the software in combination with some hardware device. Diamond v Diehr: SCOTUS says that an invention isn't automatically *un*patentable just because it contains an algorithm But PTO & lower courts read in the converse: algorithms are patentable Problem of "non-obviousness" the rules state that it's not enough to prove it's obvious *today*. Uh oh. Problem of "prior art" did someone else discover it first? often there are arguments about this Broad patents for fundamental new ideas, narrow patents for improvements compatibility issues: GIF => PNG MP3 => ogg vorbis software patent v copyright ============================================= Tension within statutes is often not a defect but an indication that the legislature was doing its job. 9th circuit appeal decision in Batzel v Cremers Critically, however, § 230 limits immunity to information “provided by another information content provider.”