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Judge Neil V. Wake of the District of Arizona today issued this opinion in one of the RIAA file-sharing cases, Atlantic v. Howell.  The RIAA had argued that even though there was no evidence that the defendant’s file sharing software had ever actually sent out any infringing files, the fact that the defendant made those files available for download was an independent infringement of the distribution right, 17 U.S.C. 106(3).  Some courts have (erroneously) so held, but Judge Wake rebuffed the RIAA’s attempt to lower its burden of proof:

The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute “copies” of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). Unless a copy of the work changes hands in one of the designated ways, a “distribution” under § 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.

Much of the credit goes to an outstanding amicus brief filed by Fred von Lohmann of the EFF.

The world has a new good cause. A group of writers and academics with ties to the fanfic community has founded the Organization for Transformative Works.  As befits an organization with its roots in a deeply postmodern art form, the organization is a bit of a pastiche: part EFF, providing legal support to the fanfic community; part Participatory Culture Foundation, creating and disseminating software that furthers its policy goals; and part academic society, publishing a peer-reviewed journal on “fanworks and practices.”

I’m exicted to see what they do. They’re certainly well-represented on the legal side, as Rebecca Tushnet, the leading legal scholar on fanfic, is on the organization’s founding board.

As commented upon by Michael Madison, the Romantics have filed suit against Activision, alleging that the version of “What I Like About You” included in the Guitar Hero Rocks the ’80s video game (for which Activision got a license from the songwriters) sounds too much like the original recording.

In their complaint, available here as a PDF, the Romantics allege three counts: violation of the right of publicity, a somewhat vaguely outlined Lanham Act claim, and unjust enrichment. They can’t allege copyright infringement, since the defendants licensed the underlying musical work, and the copyright in a sound recording does not extend to recordings that merely consist of sounds that “imitate or simulate those in the copyrighted sound recording,” under 17 U.S.C. § 114(b).

The publicity claim would seem to turn on whether the Michigan common law right of publicity protects against vocal impersonations, as the Ninth Circuit held California law did in Midler v. Ford Motor Co. – and whether the court feels like having another crack at the thorny preemption issues raised by the interaction between such a common-law right and Section 114(b) of the Copyright Act.

UPDATE (20 December 2007): The Detroit Free Press reports (via Bill Patry) that the Romantics’ motion for preliminary injunction was denied. No written opinion is available as of this writing. The denial of a preliminary injunction doesn’t mean the case is over, only that Activision can keep selling the game while the suit is ongoing.  Perhaps the court felt that pulling Guitar Hero off the shelves this holiday season would cause too much strum und drang.

In a beautifully written, powerfully reasoned opinion, the Sixth Circuit today declared 18 U.S.C. § 2257 facially unconstitutional under the First Amendment for overbreadth. The opinion, in Connection Distributing Co. v. Keisler, is here. The statute imposes harsh recordkeeping requirements on all producers and disseminators of sexually explicit content, ostensibly in order to more easily find and prosecute child pornographers. In practice, as discussed in this post from December of 2005, the statute burdens parties who have nothing to do with child pornography — and many, particularly on the Internet, who don’t produce pornography at all.

The Sixth Circuit panel, in patient and careful terms, explained that the government doesn’t get to chill lawful speech in order to make its law-enforcement job easier. Bravo.

Yesterday, a unanimous three-judge panel of the United States Court of Appeals for the Tenth Circuit awarded a major victory to the public domain in Golan v. Gonzales.

In 2003, the Supreme Court ruled in Eldred v. Ashcroft that a copyright law could be reviewed under the First Amendment as a restriction on speech only if it constitued a change to the “traditional contours of copyright protection.” Yesterday, the Tenth Circuit ruled that the permanence of public-domain status is such a “traditional contour” — that is, when something enters the public domain, we expect it to stay there. Accordingly, the 1994 Uruguay Round Agreements Act (URAA), which granted “restored” copyright protection to a large number of works in the public domain that had been created outside the United States, was a change to that traditional contour, and required review as a restriction on speech.

The court reached its decision by careful attention to history. The government’s best argument was that Congress had pulled works from the public domain several times in American history, so no “traditional contour” had been changed. The court conducted a detailed analysis of each of those (rather obscure) historical situations, such as wartime copyright laws enacted in 1919 and 1941 which excused authors’ inability to comply with copyright formalities due to wartime shortages and disruptions. The court found that each was by definition an unusual event prompted by exigent circumstances, and that such temporary enactments did not set copyright’s “traditional contours.” The court took an even more scholarly approach to the question of whether the 1790 Copyright Act, which was the young nation’s first copyright statute, removed works from the public domain in certain states which did not have copyright laws up until that time. Reviewing a number of primary sources and law review articles, the court found that it was “probably not just unclear but also unknowable” whether the first Congress thought it was removing works from the public domain due to the scarcity of historical evidence.

The Tenth Circuit remanded the case to the district court. Its instructions on remand are a little curious. It asks the district court to determine whether the URAA is a content-based or a content-neutral restriction on speech. I’m not sure why, for two reasons. [UPDATE: I want to emphasize that I think the court was right to reach this analysis, since it found that the URAA was subject to First Amendment scrutiny. I’m just not sure why it needed to remand on these grounds rather than deciding that the regulation was content-based, anouncing the proper standard, then remanding.] First, whether a law is content-based or content-neutral ought to be a pure question of law; there aren’t any facts to find, so I’m not sure why the district court gets first crack. Second, I can’t imagine a way to find that any copyright law is content-neutral. If I stand on a soapbox in the middle of town and recite a certain poem that begins “Shall I compare thee to a summer’s day?,” the law does not punish me. If I stand on the same soapbox and recite — at the same volume, in the same tone of voice — a different poem that begins “Oh baby baby, how was I supposed to know?,” the law punishes me. That’s the very definition of a content-based restriction. We’ll see what the district court does.

Or maybe we won’t. The government can petition for certiorari before the case gets remanded. Because of the Ninth Circuit’s decision in Kahle v. Gonzales, there’s now a circuit split regarding how courts decide when a law has changed copyright’s “traditional contours,” making Supreme Court review more likely. A chance for the Court to revisit its “traditional contours” comment could be a great boon to culture, or might shut off all future opportunities to place First Amendment limits on copyright laws.

This ruling is an extremely satisfying development for me personally. During the summer of 2004, I worked on the Golan case with Larry Lessig, Elizabeth Rader, Colette Vogele, and Chris Sprigman. I had the chance to do some of the factual, legal, and historical research that supported the plaintiffs’ claims. I’m proud of the work the team has done since the case was filed back in 2001, and hope that this victory is only the first.

On this week’s Technology Liberation Front podcast, a number of IP luminaries discuss the UMG Recordings v. Augusto case, in which an eBay seller is defending against a copyright infringement claim based on his resale of “promotional” CDs given away by UMG.

Full disclosure: I’m proud to be a member of the team representing Mr. Augusto.

Yesterday, the Ninth Circuit Court of Appeals decided Perfect 10 v. Google. The case encompasses numerous issues, from section 512 to fair use to the bounds of secondary copyright liability. Here’s a summary of the most interesting parts to me (not to be confused with the most interesting parts to the litigants or to the court):

1. Preliminary Injunctions and Fair Use. The court held, for the first time, that in order to get a preliminary injunction in a copyright case, the plaintiff must not only demonstrate a substantial likelihood of proving his prima facie case, but must also demonstrate a substantial likelihood of overcoming any defenses raised by the defendant. First, “the defendant is responsible for introducing evidence of fair use in responding to a montion for a preliminary relief,” then the plaintiff must “show it is likely to succeed in its challenge to the alleged infringer’s evidence.” Slip op. at 5767. The availability of preliminary injunctions in cases where the plaintiff’s prima facie case is easy to prove but the defendant has a strong fair use defense chilled speech, when it didn’t ban it outright. This holding is likely to mean that plaintiffs will rarely get preliminary injunctions in many of the cases copyfighters care about — cases where copying is obvious and the real question is fair use.
2. Preliminary Injunctions and Section 512. The court also held that a plaintiff seeking a preliminary injunction must demonstrate a substantial likelihood of overcoming a defense under 17 USC 512. Section 512 contains its own rules about injunctions, but the court held that because “the DMCA does not change copyright law,” general principles apply. Accordingly, if the defendant raises a section 512 defense, the court first decides whether the defendant is likely to qualify for protection under section 512, then applies the appropriate injunction rules depending on the answer.
3. The “Server Test.” In analyzing whether the copyright holder’s display right has been violated, we are told that the “displaying” is performed by the web server, not by the user’s computer. Displaying is “show[ing] a copy;” here, the copy being shown resides on the server, and is shown by transmitting it over the Internet to the user’s computer for display. In a slightly weird turn, the court says that a computer owner displays a work when she “uses the computer to fill the computer screen with the photographic image stored on the computer, or by communicating the stored image electronicallly to another person’s computer” (so the server is doing the displaying in the web context because it stores the image). What’s weird is that right in the middle of this analysis, the court cites MAI v. Peak, which held that copies held in RAM are sufficiently “fixed” to be copies for copyright law purposes. If RAM copies are “fixed” (which they aren’t, but we’ll argue about that another day), why isn’t the user the one displaying the work by “us[ing] the computer to fill the computer screen with the photographic image stores on the computer”? I have to imagine that the fact that web browsers store transmitted images in RAM before displaying them wasn’t before the court.
4. In-Lining Images Is Not a Display. Well, it’s not direct infringement, at least. IMG tags and links are just HTML instructions, the court says, and “[p]roviding these HTML instructions is not equivalent to showing a copy.” This is because the HTML doesn’t represent the photographic image; you can’t display the image solely by knowing the URL, because the server the URL is pointing to has to actually serve the image.
5. Framing Is Not a Display. Having another site’s content display inside a frame is not infringement, because the content itself is being served by the original website. It might confuse consumers, but the court rightly notes that confusion is dealt with by trademark law, not copyright law.
6. Linking is not Distribution. Because the data itself is coming from some other server, linking to infringing content is not a “distribution” of that content. Connectedly, the “deemed distribution” rule from Hotaling (the bad Hotaling, not the good Hotaling) doesn’t apply because Google doesn’t have a copy of the allegedly distributed full-size images, and you can’t distribute something you don’t even possess. (I expect that some will see this as an adoption of the Hotaling rule by the Ninth Circuit, but I think it’s dicta. Napster is bad enough.)
7. Art. I, sec. 8, cl.8 Gets Teeth. The court says that courts must be “flexible in applying a fair use analysis,” and that the four fair use factors must be “‘weighed together in light of the purposes of copyright’” (quoting Campbell). And then comes the best part. “The purpose of copyright law is ‘[t]o promote the Progress of Science and the useful Arts,” and to serve the welfare of the public” (internal quotations and citations omitted). So courts must weigh the factors together, balancing the benefit to the generation of knowledge that comes from greater protection against the public interest in making fair use of copyrighted works. Excellent. (I’m hoping for summary dispositions in really egregious fair use cases that just say, “The district court failed adequately to consider the Progress of Science and the Useful Arts. VACATED and REMANDED.”)
8. Superseding Use. Use that displaces sales of the copyrighted work has rarely been held to be fair use. But here, the court held that even if the defendant’s use supersedes some of the copyright holder’s revenue-generating uses, it can still be fair use if the value to the public from the defendant’s use outweighs the “significance” of the superseding use. This is perhaps the most important holding, in part because it helps to get rid of the circular argument that the copyright holder wanted to license uses like the defendant’s. Even if the copyright holder could have garnered some meager licensing revenue by prohibiting uses like the defendant’s, the “market harm” factor won’t weigh against the defendant if the benefit to the public outweighs the superseded benefit to the copyright holder.
9. Evidence of Harm. In order for the “market harm” factor of the fair use analysis to tip in the plaintiff’s favor, the plaintiff must come forward with evidence of actual market harm. Market harm cannot be presumed, and “hypothetical” harm isn’t good enough. This will help to erode further the circular “I could have licensed this use, therefore it is not fair use” argument; on the other hand, it makes the sham “licensing” of use that’s actually fair use all the more pernicious, because it makes the use less likely to be found to be fair use in the future.
10. The User’s Local Cache Is Fair Use. The court held that the user’s local web cache is a fair use copy because it is a transformative use — presumably because it is using the image data not as a photograph, but as a means toward faster web-browsing performance. The effect on the copyright holder’s rights is minimal — who’s going to license the image for use in their own local cache? — and the public benefit is significant, so it’s fair use. The court also expressed some doubt that “such automatic copying could constitute direct infringement,” presumably under a CoStar v. Loopnet volitional copying theory.
11. Substantial Noninfringing Use. The court held that substantial noninfringing uses for a product defeats a claim for secondary copyright liability based on an infringement-facilitating product design, but does not immunize a defendant from other sources of secondary liability. Thus, for example, if Sony had sent letters to each VCR owner exhorting them to duplicate and sell movies they rented from the video store, Sony would be subject to contributory copyright liability for sending the letters, even though it is not subject to liability for the infringement-facilitating design of its product.
12. Imputed Intent. The court held that intent is an element of a claim for contributory copyright infringement. Then, the court effectively read that element back out of the doctrine by holding that intent may be imputed if the defendant knew that infringement was “substantially certain” to result from her action. (Just like in Torts class.)
13. Contributory Liability. The court announced a new formulation of the contributory liability doctrine for internet sites: in order to be liable, the defendant must have actual knowledge that specific infringing material is available, and must then fail to take simple measures which would have prevented further damage. The court also called those “simple measures” “reasonable and feasible means.” Recall, however, that compliance with section 512 makes this analysis go away; it removes secondary liability for service providers if its procedures are followed. The district court hadn’t reached the section 512 analysis, so the court remanded this issue.
14. Vicarious Liability. As with all forms of secondary liability, a claim for vicarious liability must be based on some underlying act of direct infringement performed by someone. Here, that direct infringement was the unauthorized display of Perfect 10’s images on websites unaffiliated with Google. For a plaintiff to prevail on a claim of vicarious liability, he must show that the defendant has the right and ability to control the direct infringement, but fails to do so. Here, the court found that Google had no right nor ability to control the display of Perfect 10’s images on the unauthorized websites, since Google didn’t run those websites and couldn’t shut them down even if it wanted to. Perfect 10 argued that Google could have shut down the sites’ AdSense accounts, depriving them of revenue, but the court pointed out that doing so would not remove the images from the third-party websites.

It’s a big opinion, with a lot of holdings, but most of them make sense and apply the law correctly. The case now goes back down to the district court for further factfinding and analysis. There’s a dispute over the adequacy of Perfect 10’s section 512 takedown notices, and after Perfect 10 v. CCBill, Google will have a much easier time prevailing on that issue.

Here’s a rundown of the key holdings in yesterday’s Ninth Circuit opinion in Perfect 10 v. CCBill.

1. DMCA section 512 Safe Harbor. The first issue was whether the defendants — a hosting provider and a credit card processor for sites hosting allegedly infringing material — could claim the benefit of the safe harbor from claims of secondary copyright liability found in 17 U.S.C. 512. It’s remarkable how the parties raised issues implicating nearly every nook and cranny of a rather complicated section of the Copyright Act.
   • Termination Policy. In order to get the benefit of the section 512 safe harbor, a service provider must have “adopted and reasonably implemented” a policy for terminating “repeat infringers” in “appropriate circumstances.” 17 U.S.C. 512(i)(1)(A).
     • Such a policy is implemented by having “a working notification system, a procedure for dealing with DMCA-compliant notifications, and if it does not actively prevent copyright owners from collecting information needed to issue such notifications.”
     • Maintaining a record of “most” users in order to identify repeat infringers is sufficient to meet this standard.
     • A repeat infringer policy is always “reasonable” if the service provider responds when it has “knowledge of the infringement.”
     • A service provider’s action or inaction in response to claims of infringement made by other copyright holders are relevant to show whether the service provider’s repeat infringer policy is “reasonably implemented”.
   • Takedown notices.
     • A takedown notice sent pursuant to section 512(c)(3) has effect only if it includes each of the six items required by that section as part of the same document.
     • Of particular importance is the declaration under penalty of perjury required by section 512(c)(3)(A)(vi). This is because “[a]ccusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed.”
   • Apparent infringement. A service provider loses immunity if it fails to take action when it is “aware of facts or circumstances from which infrinigng activity is apparent.” 17 U.S.C. 512(c)(1)(A)(ii).
     • Domain names that can be read to imply infringement do not make infringement “apparent.” Here, the court held that the domain names “illegal.net” and “stolencelebritypics.com” were not admissions that the photographs found there were actually illegal or stolen, but were “an attempt to increase [the sites’] salacious appeal.”
     • A poorly-worded copyright disclaimer stating that the webmaster does not “claim any rights to these files, other than the right to post them” did not make infringement apparent.
   • Standard technical measures. There’s a provision in section 512(i) stating that a service provider loses its safe harbor if it interferes with certain narrowly-defined “standard technical measures” that are “used by copyright owners to identify or protect copyrighted works.” Rather cleverly — though, I think, probably erroneously — Perfect 10 argued that accessing sites on the web is such a “standard technical measure,” and by refusing to sell an account to Perfect 10 for access to the website interfered with that measure. This issue was remanded for further factual development, both as to whether website access is a “standard technical measure” under the statute’s definition and whether CCBill blocked Perfect 10’s credit card because it was investigating infringement or because it had previously refused CCBill’s charges.
   • Transitory communications. There’s also a provision in section 512(a) providing a separate safe harbor for service provisers who are “conduits” for infringing content, providing connections without modifying the content. The paradigm case of such a service provider is a network backbone operator. Rather cleverly, CCBill claimed to be just such a conduit, since it sends credit card data from the billing site to the relevant banking systems. Perfect 10 argued that for the safe harbor to apply, the condut must carry the allegedly infringing communications. Recognizing that “[t]he Internet as we know it simply cannot exist if those intervening computers must block indirectly infringing content,” the court held that “[s]ervice providers are immune for transmitting all digital online communications, not just those that directly infringe.”
   • Information location tools. Yet another provision in section 512(d) immunizes service providers who provide “information location tools” that link users to infringing content. Rather cleverly, CCBill claimed that by including a link back to the relevant website in a confirmation email after the user has used CCBill to pay for her subscription, CCBill is operating an “information location tool” and all of its operations are immune from secondary copyright liability. The court rejected this broad reading, holding that the “information location tool” safe harbor thwarts only claims that the provision of links to infringing content gives rise to liability, and does not immunize the linker’s entire operation from claims unrelated to the link.
   • Information posted by users. Section 512 also limits the liability of service providers who provide networked storage space for information uploaded by users. At issue here was whether the defendants met the requirement of section 512(c)(1)(B), that it “not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” The court held that “direct financial benefit” in section 512 imports that term’s meaning from the common law of vicarious copyright liability. In that context, the “direct financial benefit” analysis asks “whether the infringing activity constitutes a draw for subscribers, not just an added benefit.”
2. Communications Decency Act. The Communications Decency Act, 47 U.S.C. 230, immunizes users and providers of interactive computer services from liability arising out of information posted or transmitted by another. The statute carves out an exception for “intellectual property,” so section 230 does not immunize a service provider from secondary liability for, for example, users’ violations of the Copyright Act (though section 512 does provide such immunity). The court’s important holding here is that “intellectual property” in section 230 means only “federal intellectual property.” Thus, section 230 renders users and providers of online services immune from secondary liability for a another’s infringement of any state-law IP right, such as rights of publicity, trade secrets, and state trademarks. This would also apply to pre-1972 sound recordings, the only class of works still covered by state copyright laws.

This unanimous and straightforward opinion clarifies a large number of open questions related to secondary liability for the infringing acts of others under federal copyright law and under state intellectual property laws. It shows a pragmatic understanding of the risks faced by online service providers in a way that few other appellate opinions have. Further, it shows recent Ninth Circuit appointee Milan Smith to be a clear writer and a thorough legal analyst.

Eric Goldman writes in with this event announcement. I hope to see you there!

The High Tech Law Institute at SCU Law is sponsoring a gathering for Bay Area legal bloggers/blawgers. Our goal is to get all of us together in a room to meet each other, socialize a bit, and discuss topics of common interest in a group discussion. Light refreshments will be served. The details:

Who: The event will cater principally to legal bloggers in the Bay Area, but everyone is welcome. Confirmed attendees so far include Mike Dillon of Sun, Cathy Gellis, Eric Goldman of SCU, Joe Gratz of Keker & Van Nest, Chris Hoofnagle of Boalt, Cathy Kirkman of Wilson Sonsini, David Levine of Stanford Law CIS, Kristie Prinz, Colin Samuels, Jason Schultz of EFF and Colette Vogele.
When: March 28, 6-8 pm
Where: Wiegand Room, Arts & Sciences Building, Santa Clara University. Directions to campus.
Cost: Free. Parking is available for $5
CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.
How: Please RSVP to Eric Goldman.

This Friday and Saturday, I’ll be liveblogging from the Bandwidth Conference here in San Francisco. The conference’s slogan is a thing of unimpeachable beauty: “Music. Technology. Cocktails.” The speaker schedule is here. There are two speaking tracks, and I won’t be able to make it to everything, but expect in-depth coverage of the sessions on this blog’s core subject matter — technology and law in service of art.

I’ll also be moderating a panel at the Bandwidth Shindig on Sunday. While the Bandwidth Conference is an industry event requiring registration, the Bandwidth Shindig’s educational panels are free and open to the public, covering more mainstream subjects. My panel is called “Download on Download: Getting Your Music Online and Getting It Heard”. The panel will include Windy Chien of the iTunes Music Store, Tim Mitchell of IODA, and Ali Partovi of Garageband. It will take place at 2:00 PM on Sunday, August 20 at the downtown San Francisco Apple Store. I hope to see you there!

So Iran’s president, Mahmoud Ahmadinejad, now has a blog (http://www.ahmadinejad.ir/). It’s sorta neat to see the varying rates of propaganda-mechanism uptake by various world governments. But what’s really interesting is what happens when you visit the blog from an Israeli IP address.

Unconfirmed reports indicate that the site tries to exploit a vulnerability in Microsoft’s Internet Explorer in order to infect your computer with a trojan.

I wonder what the trojan does.

I’ve never seen a deliberate attack on individual civilians’ personal computers from the government of a hostile nation. If this is the first, I suspect it won’t be the last.

UPDATE: I emphasize that those were unconfirmed reports. The Register — home, itself, to frequent unconfirmed reports — has this skeptical analysis.

If your editor is Kevin Poulsen, you won’t be able to get away with sending corroborating emails purportedly from a “source” you never talked to from the same IP address your personal emails come from.

As reported here at TTABlog, Leo Stoller, the litigious trademark abuser who has not yet sued me for blogging about him here, has been sanctioned by the Trademark Trial and Appeal Board. He’s filed over 1,800 groundless motions for extensions of time to oppose trademark filings, and apparently uses that time to attempt to extract settlement money from the applicants. The order vacates those extensions and bars Stoller from filing more for two years. Thereafter, Stoller will have to file through an attorney — and it seems likely his filings will have to decrease in number or increase in quality, because attorneys (unlike unrepresented litigants like Stoller) can be disbarred for making groundless filings.

On his blog, Stoller vigorously opposes the sanction order (speaking about himself, as he always does on his blog, in the third person). In an amusing twist, Stoller illustrates his argument that the TTAB’s ruling is unconstitutional with this graphic:

Perceptive readers may have noticed that, rather than being a general illustration about unconsitutionality, this image is the logo of the documentary Unconstitutional, which was made, according to its director Robert Greenwald, “to show Americans the extent to which our civil liberties and our freedoms have been trampled upon by our government since 9/11.” (Incidentally, I have two words for geek readers, and I implore everyone else not to look it up. “Constitutional Goatse.” I’m just sayin’.) The film’s title constitutes use of an ordinary English word as a trademark — use that, according to Stoller’s arguments, deserves absolute protection from infringement (say, by using the logo to promote one’s own product or service on one’s blog, which could arguably be blurring or, in the case of an association with Stoller, tarnishment).

It’s always good to see an IP bully be cut down to size. I look forward to reading the D.C. Circuit’s opinion in the inevitable appeal.

The details of the “compromise” reached between Senator Specter and the Bush Administration have recently come to light, and it’s not too soon to voice opposition. Professor Balkin says it better than I can:

In short, if this bill is passed in its present form, it would seem to give the Executive everything it could possibly dream of– a lax method of oversight and the possibility of ignoring that oversight whenever the President chooses. The NSA can (1) engage in ongoing electronic surveillance within FISA with indefinite 90 day renewals, (2) engage in electronic surveillance without even seeking a court order for a year, and finally (3) under section 801, engage in electronic surveillance outside of FISA under the President’s constitutional authority to collect foreign intelligence surveillance.

Barely two weeks after Hamdan, which appeared to be the most important separation of powers decision in our generation, the Executive is about to get back everything it lost in that decision, and more. In Hamdan, the Supreme Court gave the ball to Congress, hoping for a bit of oversight, and Senator Specter has just punted.

The bill is a sneaky sham that would place the imprimatur of the Congress on the sweeping claims of “inherent” presidential power made by the Bush administration. It purports to expand judicial review of warrantless electronic surveillance of United States citizens, but it places that review in a secret court where, as I read the bill and the existing FISA, Department of Justice lawyers will be allowed to argue in favor of the program’s legality, but all other lawyers will be barred. It’s an outrage.

Jim Chen, an excellent teacher and very smart scholar at the University of Minnesota Law School, has started a blog called Jurisdynamics. I can only hope that the blog will be as entertaining and fulfilling as Professor Chen’s Regulated Industries and Statutory Interpretation classes.

Google has launched its Google Checkout service, which is somewhat notable for its integration with their AdWords program. But what’s really remarkable is their extremely exhaustive list of things you can’t sell using Google Checkout. Hawkers of miracle cures, satanic-ritual supplies, and body parts will just have to use PayPal.

Via How Appealing comes the 11th Circuit’s opinion this morning in Snow v. DirecTV. The issue arises on a motion to dismiss for failure to state a claim; the facts alleged in the complaint are as follows. Snow ran a web forum for defendants in antipiracy suits brought by DirecTV. The front page of that site included a clickwrap agreement requiring visitors to affirm that they were not affiliated with DirecTV before allowing entry. DirecTV and its agents accessed the forum despite this prohibition.

Snow sued under the Stored Communications Act, 18 U.S.C. 2701, which generally prohibits unauthorized access to stored electronic communications. But 18 U.S.C. 2511(2)(g)(i) limits the reach of the Stored Communications Act such that it is not a violation “to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public” (emphasis added). The court found that, while Snow’s forum expressly denied authorization to DirecTV and its agents, they didn’t need authorization because the site was readily accessible to the general public. Under the court’s reasoning, any web site that is not protected by a password or other information not readily accessible to the general public is not protected by the Stored Communications Act.

It appears to me that the plaintiff in this case just chose the wrong cause of action. A garden-variety breach of contract claim would have, I think, succeeded, though the damages to Snow for such a breach would presumably be very small, while damages under the SCA were likely to be much larger.

When I saw my first “no p0lice a11ow3d, suxx0rs!” notice on a dodgy BBS in 1989 or so, I found it hard to believe that through the simple talisman of prohibiting access, an electronic forum could keep out anyone it disliked. The Eleventh Circuit evidently didn’t believe it either.

UPDATE: Orin Kerr posts a quick take on the case. He argues that instead of relying solely on the fact that the website was readily accessible to the general public and thus that no authorization was needed, the 11th Circuit should have held that the Terms of Service did not affect DirecTV’s authorization vel non. Such a broader holding would make clear that it isn’t a crime to violate a website’s terms of service, just a breach of contract. The broader holding wouldn’t make any difference in this case, but it would have a big effect on whether a user of a password-protected website whose terms of service revoke authorization in the event of breach commits a crime when he accesses the service but violates the contract. (Think Westlaw.) I agree with Professor Kerr that authorization (as the term is used in ECPA) should not be automatically revocable solely by operation of contractual terms.

UPDATE 2: I had forgotten that Cindy Cohn and Kevin Bankston of the EFF, in an amicus brief, were the ones who introduced the ultimately successful argument that the “readily accessible to the general public” language of section 2511(2)(g)(i) is fatal to Snow’s claim. Kudos, Cindy and Kevin.