Comments on: Levity and Danger http://www.concurringopinions.com/archives/2006/11/levity_and_dang.html The Law, the Universe, and Everything Mon, 22 Mar 2010 01:51:00 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Bruce Boyden http://www.concurringopinions.com/archives/2006/11/levity_and_dang.html/comment-page-1#comment-56587 Bruce Boyden Wed, 01 Nov 2006 23:56:17 +0000 http://www.solove.org/archives/2006/11/levity-and-danger.html#comment-56587 I don't believe there's a substantive difference. However, there should be a difference resulting from prosecutorial discretion. If you lie in a letter to your Grandma about how you spent the money she sent (in order to continue receiving such gifts in the future), you're <a href="http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/43mcrm.htm#9-43.100" rel="nofollow">not likely to be prosecuted for mail fraud</a>, even if it's a literal violation of the statute. I don’t believe there’s a substantive difference. However, there should be a difference resulting from prosecutorial discretion. If you lie in a letter to your Grandma about how you spent the money she sent (in order to continue receiving such gifts in the future), you’re not likely to be prosecuted for mail fraud, even if it’s a literal violation of the statute.

]]> By: Frank http://www.concurringopinions.com/archives/2006/11/levity_and_dang.html/comment-page-1#comment-56586 Frank Wed, 01 Nov 2006 21:47:00 +0000 http://www.solove.org/archives/2006/11/levity-and-danger.html#comment-56586 Re the "link as citation" vs. "link as dissemination": thanks for the clarification--though I'd love to see some clear safe harbor out there. I tend to think "inducement" could be interpreted pretty liberally, depending on which "concurrence" in Grokster is most favored in the lower courts. Re civil/criminal distinction in Corley: Yes, sorry about that, I had Sklyarov in mind when I typed that up. I'll do a "strikethrough." But you wouldn't dispute that the publishers of the links *could* have been found criminally liable under the DMCA, would you? I don't believe that violation of anti-trafficking provisions of the DMCA is dependent on a showing of infringement. (see, e.g., Reimerdes, 111 F. Supp. 2d at 315). As Corley notes, the DMCA creates both "civil remedies, §1203, and criminal sanctions, §1204." I think these pieces suggest the danger: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=388081 http://www.lawtechjournal.com/notes/2002/29_020827_gilbert.php Re the “link as citation” vs. “link as dissemination”: thanks for the clarification–though I’d love to see some clear safe harbor out there. I tend to think “inducement” could be interpreted pretty liberally, depending on which “concurrence” in Grokster is most favored in the lower courts.

Re civil/criminal distinction in Corley: Yes, sorry about that, I had Sklyarov in mind when I typed that up. I’ll do a “strikethrough.” But you wouldn’t dispute that the publishers of the links *could* have been found criminally liable under the DMCA, would you? I don’t believe that violation of anti-trafficking provisions of the DMCA is dependent on a showing of infringement. (see, e.g., Reimerdes, 111 F. Supp. 2d at 315). As Corley notes, the DMCA creates both “civil remedies, §1203, and criminal sanctions, §1204.”

I think these pieces suggest the danger:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=388081

http://www.lawtechjournal.com/notes/2002/29_020827_gilbert.php

]]> By: Bruce Boyden http://www.concurringopinions.com/archives/2006/11/levity_and_dang.html/comment-page-1#comment-56585 Bruce Boyden Wed, 01 Nov 2006 20:44:41 +0000 http://www.solove.org/archives/2006/11/levity-and-danger.html#comment-56585 <i>It's a pretty complicated area, and the hacker magazine 2600 learned the hard way that a link to material that helped people circumvent technological protections of copyright was itself a criminal offense.</i> It's certainly an undeveloped area, but principles are beginning to emerge. Namely, a link as citation is unlikely to lead to trouble, but attempting to disseminate something by linking to it (e.g., a direct link to a non-browser-readable file) may be liability-inducing. So it's important to keep in mind the actual facts involved in <i>Corley</i>. It was a civil suit, not criminal. More importantly, 2600 didn't simply make "a link" to DeCSS, it posted hundreds of links, some of which were direct downloads, in an express attempt to distribute the file as widely as possible. Obviously there will be mushy cases at the border of distribution and citation, but <i>Corley</i> doesn't appear to be one. It’s a pretty complicated area, and the hacker magazine 2600 learned the hard way that a link to material that helped people circumvent technological protections of copyright was itself a criminal offense.

It’s certainly an undeveloped area, but principles are beginning to emerge. Namely, a link as citation is unlikely to lead to trouble, but attempting to disseminate something by linking to it (e.g., a direct link to a non-browser-readable file) may be liability-inducing.

So it’s important to keep in mind the actual facts involved in Corley. It was a civil suit, not criminal. More importantly, 2600 didn’t simply make “a link” to DeCSS, it posted hundreds of links, some of which were direct downloads, in an express attempt to distribute the file as widely as possible. Obviously there will be mushy cases at the border of distribution and citation, but Corley doesn’t appear to be one.

]]> By: Matt http://www.concurringopinions.com/archives/2006/11/levity_and_dang.html/comment-page-1#comment-56584 Matt Wed, 01 Nov 2006 17:23:22 +0000 http://www.solove.org/archives/2006/11/levity-and-danger.html#comment-56584 Love the post title. Love the post title.

]]>