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. --------------------------------------------------------------------- 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 Communications. To subscribe to the Computer Law Observer, simply send an e-mail message to listserv@maelstrom.stjohns.edu with the words "subscribe lawobserver" (without the quotation marks) typed into the message area. After subscribing, you will receive a message requesting that you confirm your subscription. You will need to reply "ok" (without the quotation marks) to this message to confirm your subscription. To unsubscribe, follow the same procedure, substituting the word "unsubscribe." Reposting is permitted, if all reference information is 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 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: * Do you have the right to link to someone without their permission? * Do you have the right to "open the hood" of software you buy to see if it's works as it says it does? (One would think that this is merely reverse engineering.) Milburn says "no" to both questions. In fact, he wants his critics, especially Bennett Haselton, to be prosecuted for distributing software that allows you to "open the hood" of CyberSitter. But you can never trust lawyer letters. So I called up a U.S. Attorney I know who has had some experience in criminal copyright cases. Here's what I was told: "What the law says for criminal copyright is that a person has to do certain things for commercial advantage or private gain. I don't think there's going to be a criminal violation for two reasons: 1. There will be a civil remedy if there is one at all. 2. He's nowhere near commiting a crime. [You'd need to prove a criminal mindset.] What he's doing is not criminal." So much for Milburn's "potential criminal claims." -Declan ---------- Forwarded message ---------- Date--Wed, 2 Jul 1997 21:35:25 -0700 From--"James S. Tyre" To: NETLY-L@relay.pathfinder.com Subject--Corporate Intimidation [Was: Re: argh ignore that last msg] [...] Despite the May 2, 1997 date of what follows (three days before my letter to Brian Milburn), Bennett just received this today from an attorney purporting to represent Solid Oak. (Bennett hasn't been at Vanderbilt for some time, and their mail forwarding system apparently is not the best). Note what the attorney says about links. -Jim -------------------------------- The Law Offices of Darren K. Miller 100 North Lasalle Street 24th Floor Chicago, Illinois 60602 Telephone (312) 346 6363 Facsimile (312) 346 2209 May 2, 1997 VIA CERTIFIED MAIL Mr. Bennett Haselton Vanderbilt University Box 1161, Station B Nashville, TN 37235 Re: Solid Oak Software vs. Vanderbilt University, et al. Dear Mr. Haselton: We have been retained by Solid Oak Software ("SOS") with reference to your web page located at www.peacefire.org. As you know, you have been asked by SOS to discontinue publishing and distributing their material which is protected by valid copyrights. This includes, but is not limited to the CYBERsitter filter file codebreaker, and the links to various private addresses at SOS. Your continued disregard for the demands of SOS amount to activities which are civil and criminal in nature. Your attempt to shield yourself behind the First Amendment does not apply. I suggest you read the case of _Religious Technology Center vs. Netcom On-Line Communication Services, Inc._, 907 F.Supp 1361 (N.D.Cal. 1995). Your activities amount at the very least to direct infringement on many of the exclusive and protected rights of SOS. As you have no ability to raise a fair use defense, SOS may seek injunctive relief as well as damages if you do not immediately cease publishing and distributing the above material, and providing links to the private addresses within SOS. SOS will not begin to discuss releasing you from civil liability, or potential criminal claims for your actions unless you immediately comply with the above demands. Very truly yours, Darren K. Miller DKM:jlh cc: Lee Altschuler, Esq. Chief, U.S. Attorneys Office Northern District California Solid Oak Software *************** Date-- Wed, 2 Jul 1997 10:05:40 -0700 From--"James S. Tyre" Subject-- Re: our friends at solid oak To: NETLY-L@pathfinder.com Just to add a few more facts to put the "bug" in perspective, since I don't recall mention of this in netly at the time: In mid-April, Bennett wrote a program called the codebreaker which, for those who had CYBERSitter, decrypted the weakly encrypted filter file into plaintext, so that anyone who chose to run the codebreaker program could see, in all its glory, all the bad words and bad sites blocked by CYBERSitter. The codebreaker was made available for download on Peacefire's site on April 22. One of many URLs where one can find the decrypted plaintext is: http://www.c2.net/~sameer/cybersitter.txt On April 24, Brian Milburn, the President of Solid Oak, fired off a letter to Bennett, threating civil and/or criminal prosecution. In addition to what one might expect in such a nastygram, Milburn actually accused Bennett of trespass by linking to Solid Oak. Milburn's letter is at: http://www.peacefire.org/archives/SOS.letters/bm.2.bh.4.24.97.txt The "bug", which Mark Kanter of Solid Oak denies any knowledge of in the Wired piece, seems to have first appeared in the CYBERSitter install program on April 29. Shirley, this was just a coincidence. BTW, on May 5, Bennett's incredibly brilliant and wonderful pro bono attorney (ya ya, yada yada) fired off a very tame, reasoned and subdued response to Milburn. For anyone who wants to be bored to tears with legalspeak, its at: http://peacefire.org/archives/SOS.letters/james.tyre.2.bm.txt In a huge shocker, little has been heard from Solid Oak since. (Milburn was interviewed on about June 3 for a not yet published piece in George. He was still making the same threats then, but....) ------------------------------ Date: Thu, 7 May 1997 22:51:01 CST From: CuD Moderators Subject: File 5--Cu Digest Header Info (unchanged since 7 May, 1997) Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: comp.society.cu-digest Or, to subscribe, send post with this in the "Subject:: line: SUBSCRIBE CU-DIGEST Send the message to: cu-digest-request@weber.ucsd.edu DO NOT SEND SUBSCRIPTIONS TO THE MODERATORS. The editors may be contacted by voice (815-753-6436), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. 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