I have a legal question about the Wikileaks case, prompted by this this Guardian piece, by John Naughton, linked in Henry’s comments. I must confess: I wasn’t surprised or particularly scandalized when Amazon kicked Wikileaks off its cloud, because I figured Amazon was probably technically in the right. Wikileaks had probably violated whatever terms of service were in place. I thought this sounded like the sort of thing any private company was likely to do, whether or not Joe Lieberman actually brought pressure to bear. If you have a problem customer who has violated your terms of service, you terminate service. (Just to be clear: I think ongoing attempts to shut down Wikileaks in patently legally dodgy ways are an utter scandal. Joe Lieberman pressuring Amazon is a scandal. I’m with Glenn Greenwald. I also think existing intellectual property laws are, by and large, an atrocious mess. Still, the law is what it is, so the question of how a private company like Amazon can and should be expected to react to this sort of situation is narrower than certain other more general questions about free speech and the press and so forth.)
My thought was this: Wikileaks obviously can’t own the copyright, so Amazon should not be expected to be slower to shut them down than they would be to shut down someone hosting pirate copies of Harry Potter novels. An annoying consideration, because it’s perfectly obvious that, if there is a good reason to take Wikileaks down, it isn’t because it’s like Napster in its glory days, or whatever. But there you go. But the Guardian piece says this is wrong:
And what about Amazon’s assertion that WikiLeaks “doesn’t own or otherwise control” all the rights to the classified cables that it published? As Markus Kuhn, a computer security researcher at the Cambridge Computer Lab, pointed out to me, any work “prepared by an officer or employee of the US government as part of that person’s official duties” is not entitled to domestic copyright protection under US law. So, in the US at least, the leaked cables are not protected by copyright and it doesn’t matter whether WikiLeaks owns the rights or not.
That’s a good argument! I stand corrected in my mind. But it might turn out to be more complicated, due to that pesky ‘domestic’. If you read the Wikipedia article that Naughton links you find this: “The USA can still hold the copyright of those works in other countries.” Now that’s the sort of thing that that could get you into a ‘keep your friends close, and your enemies closer’ kind of situation. It might be that Wikileaks could legally host its stuff but only in the US. Because if it tried to locate its servers in another jurisdiction, the US government could bring copyright violation charges.
And a lot of the Wikileaks documents are not U.S. government docs but leaks from foreign governments. Those foreign governments could potentially make copyright claims against Wikileaks, in the US, that the US government itself couldn’t make. I wonder whether a really confusing copyright case is going to arise out of this at some point. Perhaps not, because once this stuff is out, it gets mirrored all over the place. But perhaps so. What do you think?
One final note: you might object that I should have known that you are always allowed to leak this sort of stuff, and claim first amendment protection, at least in the US, because obviously there is precedent. Pentagon Papers. No copyright case brought then. Well, I honestly just never thought about it. But I always figured – to the extent I thought about it – that whistleblowing was somehow ‘fair use’ (or reporting on it was, at least). But: Wikileaks isn’t really a whistleblowing case, in any case. Or not clearly so. Daniel Ellsberg could explain, in fairly narrow terms, why he thought the public had a compelling need to access the stuff he let them know. Julian Assange is doing something a bit different (not completely different, but somewhat). It might be that his motive is, in the broadest sense, just to damage the ability of the US (and certain others) to do some things effectively. To hobble the war machine, a little. But a desire to damage or inconvenience the producer of some document is not going to be, legally, a defense for releasing it publicly. Not in general. We have have something like a paradox of a heap of documents. A few leaked documents, to prove a specific point about what is going on secretly, is not a heap. Just a big old heap of documents – that’s a heap. A firehose is not a whistle. Maybe none of this matters at all, legally. I’m not sure. Again: I’m curious what the lawyers think. But there is a distinction, whatever the law says. The New York Times motive and interest in reporting on Wikileaks is obviously quite different from that of Julian Assange. Possibly, The New York Times could make a fair use defense for selections from the heap, even if the heap itself isn’t ‘fair’. Again, I don’t really know. What do you think?