A Question About Wikileaks, Amazon, and Intellectual Property

by John Holbo on December 14, 2010

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?

{ 84 comments }

1

Ian 12.14.10 at 4:11 am

The copyright issue, I believe, hinges on the fact the constitute “work for hire”, so the copyright belongs to the employer (in this case, the US Federal government). And the US government chooses to release its copyright into the public domain.

2

yeliabmit 12.14.10 at 4:25 am

Hm. It never occurred to me that Amazon would actually try to justify its decision using the TOS. I think that was probably a mistake on their part.

3

thinkahol 12.14.10 at 7:24 am

I’m not a legal expert. However it seems that it would be quite easy to rule (if American citizens lived in some semblance of a democracy) that there is a very significant state interest in having severe executive illegalities exposed and prosecuted.

I’m not sure what the current Supreme Court would make of something like this hitting their docket.

4

Tim Wilkinson 12.14.10 at 7:28 am

But copyright protects commercial interests – with the confusing addition of the right not to publish – which you might think should be a matter of privacy (or secrecy) law rather than copyright. I think you could probably argue (if you can find a dry beermat, I’ll write out a formal opinion for you) that while an interest in non-publication is regarded as protected by copyright, e.g. by the author of a novel that embarasses them, it still only applies to works apt fo publication, or of a kind which is apt for snd typically intended for – publication.

Logs of transient informational communications are neither creative works, nor of a kind apt or typically intended for publication. If I were to publish confidential computer logs to show that some error was present in a computer system, no-one would suggest that copyright was infringed – even though for evidentiary reasons it may be necessary to retain the exact form of presentation rather than summarising or paraphrasing it, simply because too much information of an unknown kind may be lost. (See, there really is an error, this message matches the hash code released by so-and-so; yes, this is genuine – it turns out that the logging software transposes this qnd that – a bug which was not discovered until later; this is not teh error you thought it was – because this entry is indented indicating that error 3546 arose from the error on the previous line which is a completely different matter, etc.)

In a sense, what Wikileaks is publishing is not the cables, but a record purporting to show that the cables were sent and what their content was.

I’m not sure how easy it would be to elaborate and sustain that lastr distn, nor how relevant it is in the end, but certainly copyright protects the form of creative works, not information, discoveries, etc. Those are a matter of patents, trade secrets, etc. (If I were by some comedic plot conceit put in charge of arguing a case for Wikileaks, I’d be inclined to approach the issue by treating the cables as on a par, if anything, with trade secrets, and I would certainly have a good look at cases in which trade secrets are distinguished from copyrightable works.)

Copyright doesn’t protect the content itself so far as that is distinct from the form of expression. Here the content is all anyone is interested in, and while it is distinct from the actual prose used, paraphrasing is not an option here, even if it were feasible as a matter of logistics, because it would be so lossy, particularly given the formulae and nuances diplomatic wording, see above.

US Legal code (whatever the blazes that is supposed to be), Title 17, Ch 1, § 102, has:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

(The comma between ‘discovery’ and ‘regardless’ looks like an error to me)

5

jack strocchi 12.14.10 at 8:11 am

John Holbo said:

a desire to damage or inconvenience the producer of some document is not going to be, legally, a defense for releasing it publicly.

Its good to see CT coming down on the side of law-and-order. The wikileaks case is a tempting opportunity to indulge in some gotacha blogging, in view Left’s prim and proper attitude towards the Right’s unauthorised use of documents for political purposes and sundry other crimes of state.

There is an obvious analogy between the theft and dissemination of documents stolen from East Anglia university (so-called “climategate”) and the theft and dissemination of documents stolen from the US State Department – wikileaks. Both involve the unlawful appropriation of classified information for the purposes of embarrassment to a political opponent. As Pr Q observed, Climategate was based on a crime:

The hacking was almost certainly done by someone within the campaign, but in a way that maintained (in Watergate terminology) “plausible deniability” for the principals. Regardless of what they knew (and when they knew it) about the actual theft, the leading figures in the campaign worked together to maximize the impact of the stolen emails,

So to maintain the high moral ground its a good idea for Leftists and liberals in general to acknowledge that Assange’s and his accomplice acts are more or less criminal. What he did was formally on a par with the actions of the Climategate “whistleblowers”.

FWIW I think Julian Assange was justified in committing the crime of receiving and disseminating these documents, it was a legitimate act of civil disobedience. The state broke the social contract with the unlawful use of force in invading Iraq, kidnapping and torturing suspects. My advice to Assange would be to fight his case on these grounds.

6

Walt 12.14.10 at 9:01 am

As an American citizen, I hereby grant Wikileaks the right to publish the leaked cables. I know that you are not an America, jack, but “law and order” is the language of authoritarian followers, not of free citizens. The US government has arrogated to itself a level of secrecy that undermines the ability of its citizens to oversee it.

7

Bill Posters 12.14.10 at 9:05 am

So to maintain the high moral ground its a good idea for Leftists and liberals in general to acknowledge that Assange’s and his accomplice acts are more or less criminal. What he did was formally on a par with the actions of the Climategate “whistleblowers”.

I spotted the false equivalence – do I win a prize?

It’s the person who leaked the cables to Assange who may have committed a crime, not Assange (who merely received them).

8

Edmund in Tokyo 12.14.10 at 9:09 am

The TOS copyright stuff is fairly ridiculous, frankly. There’s a process in place for copyright claims against hosting companies, which Amazon must use all the time: The copyright holder makes a specific claim about a specific piece of work, you take a quick look and take it down.

What Amazon are complaining about here is that they require that

you represent and warrant that you own or otherwise control all of the rights to the content

.

For many, if not most uses of Amazon S3, this is not something that customers are in a position to do. If you have a community site with 100,000 user-uploaded thumbnail profile pictures, there is no way in the world that you could be certain that you own or otherwise control all of the rights to the content that your users have uploaded.

If Amazon applied these TOS consistently, they would have to kick out most of their customers. And if their customers thought they were going to apply them, nobody would host their stuff on Amazon.

9

John Holbo 12.14.10 at 10:21 am

“John Holbo said:

a desire to damage or inconvenience the producer of some document is not going to be, legally, a defense for releasing it publicly.

Its good to see CT coming down on the side of law-and-order.”

Jack, if I had said it was raining out – which it is, by the way – would you have concluded that I was ‘coming down on the side’ of more precipitation – which I am not, as it so happens. I think it already rained enough this week for my taste. Yet it is raining out. (How is that possible?)

10

Random lurker 12.14.10 at 10:46 am

I don’t know how the american law works, but in Italy, stuff has to possess a certain degree of intellectual creativity in order to be elegible to intellectual property.

Apparently, any sort of “leak” should not be subject to intellectual property in this sense.
Furthermore, leaks should be seen as “news”, and publishing leaks should be protected as a form of freedom of speech/free press issue IMHO.

11

John Holbo 12.14.10 at 10:49 am

But I should perhaps be clearer about what I had in mind: just as having a desire to harm someone would not, in itself, give me any greater legal right to punch that person in the nose than someone who doesn’t desire to harm that person enjoys; so a desire to harm someone by publishing something damaging to that person does not in itself convey any greater rights to publish anything potentially damaging to that person than other people enjoy. Your right to publish, or not, will be determined on other grounds than privilege-through-intent-to-harm, since there is no such thing. This is a fairly uncontroversial point, I think.

12

John Holbo 12.14.10 at 10:57 am

“I don’t know how the american law works, but in Italy, stuff has to possess a certain degree of intellectual creativity in order to be elegible to intellectual property.”

I’m sure you can find quite a bit of creative intellectual activity in evidence in these cables and such. More generally, it is the case that the estates of some famous figures assert copyright over correspondence.

13

Jack Strocchi 12.14.10 at 11:24 am

I tend to agree with Ron Paul on the subject of Julian Assange. He makes alot of sense, especially his point about saying that wikileaks is no more culpable than the NYT or Guardian.

Both Pentagon Papers and wikileaks are trying to expose the lies on which the Vietnam war and Iraq war were based. (Although the Vietnam war at least had a basis in some kind of truth, regarding communist infiltration. Although even this was confused with nationalism.)

Ron Paul also correctly predicted the housing bubble.

He may be a Tea Partier but he makes a lot of sense and is clearly a decent fellow.

14

Jack Strocchi 12.14.10 at 11:31 am

John Holbo @ #9 SAID:

Jack, if I had said it was raining out – which it is, by the way – would you have concluded that I was ‘coming down on the side’ of more precipitation – which I am not, as it so happens. I think it already rained enough this week for my taste. Yet it is raining out. (How is that possible?)

Oh, I did not realise you had scaled such heights of Olympian detachment.

15

Random lurker 12.14.10 at 12:18 pm

@12

Under this definition, no newspaper or blog could ever publish any statement from, say, political figures, without previous autorization of the “author”.

Still referring to italian law, that I think is in line with other european laws, I believe that you can get “automatic” intellectual property only for “author’s right”, that refer to artistic creativity, whereas for other form of intellectual property, such as tech patents, you have to positively apply for a patent.

I don’t think “leaks” can have enough artistic creativity to qualify for “author’s rights”, nor that speaker applied for patents, hence I don’t think that those leaks are covered by any intellectual property.

16

John Holbo 12.14.10 at 12:22 pm

“Oh, I did not realise you had scaled such heights of Olympian detachment.”

Not only that! I’ve believed as many as six possible things before breakfast!

17

Tim Wilkinson 12.14.10 at 12:52 pm

More pressing legally for the moment is the issue of whether the Swedish extradition is going to be sucessful. The judge has come round to the splendid idea that it might be an idea to check that there is a prima facie viable case to answer before extraditing Assange, at least. There’s a hearing today I believe.

This btw illustrates an important point: that just because criminal proceedings are under way does not mean there is a total embargo on considering whether A is likely to be guilty of substantial criminal wrongdoing until such time as it comes to trial (neither of course does it mean that the witnesses in the case must be presumed to be reliable – even if their being unreliable might imply some nasty thing about their character or conduct).

Waiting ‘until all the facts are in’, being charitable (to one party – generally at the cost of some implied uncharitableness vis a vis another) is all very nice and that – if waiting is cost-neutral. Here – as in bail hearings and a variety of other contexts – it isn’t. There are reasonable fears that the US is manoeuvring to lift A out of UK/Swedish custody and straight into the US legal system or its murkier penumbra(?). Whether or not this can formally be admitted as a consideration by the judge considering extradition, it can certainly be by the rest of us in deciding whether to be forthright about the fact that the charges overall look very much like a ‘get Assange’ project.

I don’t suppose anyone will be contesting any of the heads under which A is charged on the grounds that they fail the dual criminality standard – i.e. extradite only for things which are a crime in both jurisdictions. That standard is relaxed where the European Arrest Warrant is concerned for certain offences as defined in the requesting state, including rape. But it’s not clear that this can be decisive in every case since an offence described as rape may not in fact be a case of rape by any reasonable or recognisab le standard.

It appears at least some of the new souped-up allegations – released now the complainants have had a number of weeks to, er, refresh their memories – do obviously decribe rape, but still. There may be two sets of charges – one plausible but not rape and not criminal in the UK, and the other rape or criminal in the UK, but lacking sufficiently good evidence.

18

John Holbo 12.14.10 at 1:12 pm

“Under this definition, no newspaper or blog could ever publish any statement from, say, political figures, without previous autorization of the “author”.”

No, that’s considered ‘fair use’.

http://en.wikipedia.org/wiki/Fair_use

“Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship.”

The question is: is a giant Wikileaks-style dump also ‘fair use’? The major concern would be with the third factor, as wikipedia lists them: “The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use.”

19

politicalfootball 12.14.10 at 1:29 pm

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.

This is more-or-less backwards. It seems to me that, regardless of the terms of service, Amazon was going to find an excuse to cut off Wikileaks. I will be shocked if the U.S. goes after Assange by attempting to enforce its copyright on the materials he’s disseminating.

20

John Holbo 12.14.10 at 1:39 pm

“This is more-or-less backwards. It seems to me that, regardless of the terms of service, Amazon was going to find an excuse to cut off Wikileaks.”

Well, yes, but it seemed to me like sort of an obvious excuse.

21

Scotch, John 12.14.10 at 2:12 pm

John Holbo a@ 11

I have used this nom-de-plume to avoid confusion within this particular thread.

I think not, surely any intent-to-harm is often seen as such a consequence only in the eye of the beholder.

An example to elaborate:-

The USA embassy used to practice what was called enforced subject access against many people within the United Kingdom as part of a visa application process. During that time enforced subject access was unlawful in UK law with the embassy and USA both fully aware of that.
Recently the US Ambassador to the UK stated in a televised interview that the USA does not break local laws.

Clearly the interviewed Ambassador either had no knowledge of the previous unlawful actions of his country; he was deliberately misleading, had forgotten, was being diplomatic, had some other goal in mind which was furthered by that statement, or any number of other reasons.

The actions taking place by enforcing subject access in that way were imposing USA laws (reflecting their culture) upon UK residents within the UK.
If the idea the Ambassador espoused be challenged he could well view it as an attack on himself or the integrity of the USA; On the other hand if he considered it merely another concept or idea he would be open to discussion about that and the policy change which his statement apparently implied.

With WikiLeaks, is the idea more important than the method (which I am no fan of), or should it be suppressed by the egos involved. In a separate observation, given the legal and political implications of the WikiLeaks actions, I suspect there will be many an autobiography privately written containing views which will more fully inform the public in a way enjoying the full legal protection of copyright.

Moving forward; Julian Assange appears to be subject to what could be seen as an official WikiLeaks in his alleged criminal acts.

So:-

Is the idea unlawful?
Is the action unlawful internationally or within the state is was carried out?
What is offended by WikiLeaks?
Is WikiLeaks perceived as a concept or an idea expressed in action, or even a challenge to any particular polity?
Is WikiLeaks a new politic long presaged by such things as trial by the media?

22

dsquared 12.14.10 at 2:46 pm

IIRC, this “work for hire” copyright thing is how they censored “Decent Interval” by Frank Snepp for quite a while, before realising that it made the US govt look ridiculous (something which was considered to be more of an objection in the 1970s than it is now).

23

Bloix 12.14.10 at 3:00 pm

“a giant Wikileaks-style dump”

If we’re talking about the cables, there is no “giant Wikileaks-style dump.” Wikileaks has released a grand total of 1447 documents, all of which have been vetted by news organizations like the NYT and the Guardian. Before you write about Wikileaks, you really should read Glenn Greenwald’s articles at Salon.

24

Random lurker 12.14.10 at 3:01 pm

@18

I don’t want to be boring on this subject, however:

If you go through your link at http://en.wikipedia.org/wiki/Fair_use , you will see that fair use only apply to items covered by copyright law (a subset of intellectual property).

clicking the link on copyright law in the USA you reach this page:

http://en.wikipedia.org/wiki/United_States_copyright_law

wich states that only certains contents are subject to copyright (and hence to fair use).
The list clearly refers only to artistic works, there is a rule about “# 3.5 Works by the federal government” but it specifically speaks of “publications”, wich the leaks obviously aren’t.

25

elm 12.14.10 at 3:43 pm

Does this act by Amazon not threaten their ability to qualify for the Safe Harbor provisions of the DMCA? Since they have demonstrated a willingness to police material hosted on their services for perceived copyright infringement, it seems reasonable to expect that they’ve done that for all material on their services and should be held directly liable for such infringement since they’re now in the business of vetting and publishing material rather than providing online services.

26

Lemuel Pitkin 12.14.10 at 3:52 pm

27

John Holbo 12.14.10 at 3:52 pm

“The list clearly refers only to artistic works”

No. Literary and artistic works are covered. And literary means, effectively: written works. Not literary works of art. It’s literary in the sense of: made of letters. They don’t need to have literary merit or aspirations, in an artistic sense.

28

Alex 12.14.10 at 4:09 pm

He’s out on bail.

29

elm 12.14.10 at 4:15 pm

Random lurker @23, U.S. Copyright law applies to computer software (both source code and executables). While I have seen some elegant and nice algorithms even the best hardly qualify as artistic works.

It’s still not clear to me how a copyright claim could succeed against Assange or WikiLeaks for releasing State Dept. cables. Even if we assume that State Dept. cables are subject to copyright protection, the Fair Use defense would point out that WikiLeaks is a not-for-profit entity, that the market value of State Dept. cables to the State Dept. is $0 (as the State Dept. had no intent to sell them), and that WikiLeaks used that material for purposes of criticism and/or news reporting.

Whether or not that defense would succeed in court is another question, I wouldn’t care to bet on that one way or the other, other factors in WikiLeaks’s use weaken any Fair Use claim. Still, the U.S. will probably rely on other mechanisms to suppress that material and punish WikiLeaks.

30

ogmb 12.14.10 at 4:19 pm

[1] And what about Amazon’s assertion that WikiLeaks “doesn’t own or otherwise control” all the rights to the classified cables that it published? (…) [2] 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

[2] does not negate [1]. Material that I own or control is not the same as material that I can legally re-use. Flickr for instance makes this distinction and requires users only to upload their own material.

31

Dingbat 12.14.10 at 4:27 pm

A few quick points of law.
1) The standard for copyrightability (in the US, from the Feist v. Rural Telephone decision) is “a spark of creativity.” You can’t copyright data, facts, ideas, etc, but you can copyright the expression of those ideas.
2) Copyright (again, in the US) inheres in any work from the moment of creation in fixed form. So, what you say impromptu cannot be (by you) copyrighted. However, if you interview someone, you (the interviewer) can copyright what you write down.
3) Fair use is an affirmative defense, which you can bring up in a courtroom. I doubt that Amazon’s TOS even considers fair use, (a) despite the fact that it is implicitly claimed, I’m sure, in the vast majority of what this program publishes, and (b) because Amazon doesn’t want to be in the middle of a dispute that it can’t predict the outcome of.
4) Fair use can be applied to unpublished works.
5) The point about “published” US Gov’t works being released into the public domain is a good one; I don’t know whether it has been hashed out in legislation, judicial decision, or executive regulation whether unpublished Government Works are in the public domain or not.

And a pinch of analysis:
1) Amazon’s TOS, I’m sure (I don’t have time or inclination to read it), is a terrible, lardy, overlawyered and underthought document which is so (a) uncomprehensible and (b) vague as to allow Amazon to suspend whatever account they want until (c) the TOS are found unenforceable.
2) (c) complaints have proven effective over the past couple of years as ways of stifling very legitimate forms of political speech: Fox News very aggressively shuts down clips from Fox of Republicans looking stupid that are posted to Youtube, for example, despite the extremely fair (and balanced, yo!) use to which such clips are put. As far as I know, no one has had the pockets to fight News Corp. over this.

32

Tim Wilkinson 12.14.10 at 4:28 pm

Out on bail – not out yet, and the Swedes can yet appeal. Hard to see why they should bother though – he’s still in the penal system pending the extradition hearing(s), and with little chance of fleeing. The extradition is the big question, and even if he doesn’t get extradited, he will still be wanted by Sweden, which could make an extradition application to any other country he visits (and if he stays here, that’s not ideal from his POV since the US seems to have a very extensive extradition capability vis-a-vis the UK).

33

Lemuel Pitkin 12.14.10 at 4:30 pm

Amazon sells several editions of the 9/11 Commission Report by private publishers, such as the graphic novel adaptation — not to mention its own Kindle edition. The 9/11 Report is not subject to copyright.

People are really overthinking this.

34

Tim Wilkinson 12.14.10 at 4:35 pm

Note that in themselves, the terms of Amazon’s contract do not require it to do anything, still less kick Wikileaks off their servers. The explanation they give would, if valid, show them to be within their rights to do so, but not required to. These companies obviously tend to give themselves expansive rights under these contracts and use discretion in enforcing them – that gives them the most options.

Amazon rather obscure this point with almost Palinesque language in this announcement: when companies or people go about securing and storing large quantities of data that isn’t rightfully theirs, and publishing this data without ensuring it won’t injure others, it’s a violation of our terms of service, and folks need to go operate elsewhere.

They also say: AWS does not pre-screen its customers, but it does have terms of service that must be followed. WikiLeaks was not following them. There were several parts they were violating. For example, our terms of service state that “you represent and warrant that you own or otherwise control all of the rights to the content… that use of the content you supply does not violate this policy and will not cause injury to any person or entity.” It’s clear that WikiLeaks doesn’t own or otherwise control all the rights to this classified content.

Their quote is not sourced, and doesn’t occur in their advertised standard contract, so might well come from one of the proliferation of documents of doubtful contractual force that big companies tend to put out. Their ToS may be toss.

Even if the quoted phrase does occur in their ‘ToS’ and those ToS were incorporated in the contract and not subsequently modified except as agreed by fair contract terms etc, AND isn’t modified by other provisions, e.g. the elided section, it appears to elicit a ‘representation and warranty’ from the service user. Contravention would not then IIRC entitle AWS to terminate or rescind the contract, but instead might trigger specific terms in the contract or give rise to liability to pay damages.

The AWS ‘customer agreement’ – purportedly some kind of of contractual document – specifies that the customer indemnifies AWS against any legal action arising from such contravention, and provides that the service may be terminated immediately on notice:

3.4.1. Immediately upon our notice to you in accordance with the notice provisions set forth in Section 15 below if:

(i) you attempt a denial of service attack on any of the Services;

(ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services or the Amazon Properties poses a security or service risk to us, to any user of services offered by us, to any third party sellers on any of our websites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger;

(iii) you otherwise use the Services in a way that disrupts or threatens the Services;

(iv) you are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services;

(v) we determine, in our sole discretion, there is evidence of fraud with respect to your account;

(vi) you use any of the AWS Content (as defined in Section 6.1) or Marks (as defined in Section 6.2) other than as expressly permitted herein;

(vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using AWS Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party;

(viii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or

(ix) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.

(vii) seems closest to the acount Amazon give, but note that this is a far less expansive requirement than the one alluded to in the statement. Instead of merely not owning or otherwise controlling ‘all of the rights'(?) to the content, the customer must actually be infringing another’s rights. This might mean that fair use doctrines could come into play – if there were a USG copyright in the content of the cables in the first place. Whether fair use would cover the use made by WL is, as suggested by John, doubtful though.

But it may be that Amazon was in breach of its contractual obligations to provide the service, whatever use that might be to WL (not much, probably).

35

mpowell 12.14.10 at 4:36 pm


Its good to see CT coming down on the side of law-and-order.

The idea that it is coming down on the side of law-and-order to use copyright law to shut down Wikileaks is laugh out loud absurd. And this is not meant as a criticism of Holbo- I am not so poorly interpreting his post here. I’m sure some lawyers could come up with some lawyerly language to argue the point either way, but the law is not defined by whatever bullshit argument some lawyer can come up with, unless your judge happens to be a dumbass or just unconcerned with law and order. The principle of copyright protection to protect intellectual property and encourage it’s development cannot possibly be extended to diplomatic cables or other state secrets. And even if the legislature attempted to do so, it would be a clear violation of the first amendment. Even the most ardent Dworkian judge would have to recognize they would be rewriting the constitution to support such a copyright claim. That’s not law and order, unless by law and order you mean submission to government will (which I think is what is frequently meant by the term, but which use must always be ardently opposed).

If you want to pursue a doctrine of making it illegal to publish certain state secrets based on state interest, I think your political and constitutional case would still be very weak, but at least it is well within the scope of recent jurisprudence on the subject of what the government is allowed to do.

36

Dingbat 12.14.10 at 4:37 pm

Oh, lastly, and US Federal court that has a millidram of backbone will throw out any (c) claim against Wikileaks on all these grounds. Fair use, public domain, freedom of the press, and prior restraint on publication make for an overwhelming case that if Wikileaks has done anything wrong, it ain’t in the violation of copyright.

37

elm 12.14.10 at 4:48 pm

Tim, I believe I found the ToS document referred to by Amazon. The paragraph they paraphrased is:


You represent and warrant that you own or otherwise control all of the rights to the content, including any Third Party Software, that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify AWS for all claims resulting from content you supply. AWS has the right but not the obligation to monitor and edit or remove any activity or content. AWS takes no responsibility and assumes no liability for any content posted by you or any third party.

To me, it looks like they’re playing the typical ToS game: the service provider may do anything anything it wants but has no obligations, the user has substantial obligations and limited recourse.

Amazon’s press release also claims that WikiLeaks is/was publishing “250,000” documents; which is wrong by two orders of magnitude (presently, 1447 documents have been published).

38

bh 12.14.10 at 4:54 pm

In the United States, U.S. Government works are covered by 17 USC § 105.59 “Copyright protection … is not available for any work of the United States Government.”

Work for hire has nothing to do with it.

This is correct, as I learned when I worked for the US gov’t. It’s why you see a fair number of oddball government patents — they’re an attempt to wrap something concrete around ideas that would normally be copyrighted.

I really wish this thread had more actual legal info. If the ‘opinions are like a******’ line ever applied, it’s for Wikileaks, and IP policy in general.

39

bh 12.14.10 at 4:55 pm

Oops — first two para’s are Lemuel Pitkin’s.

40

Tim Wilkinson 12.14.10 at 5:08 pm

bh et al., the fact that USG works are not copyright in the US was already acknowledged in the OP.

elm – the typical ToS game: the service provider may do anything anything it wants but has no obligations, the user has substantial obligations and limited recourse.

Indeed, or as Dingbat points out, purporting to. This, for example, is the basis on which the ToS that you (and Amazon) quote are supposed to bind anyone:

By visiting the Amazon Web Services site (the “Site”), you accept these conditions. Please read them carefully.

41

Sebastian 12.14.10 at 5:23 pm

“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). “

This seems like a crucial distinction. FWIW I wrote about it here at obsidian wings. Some of the earlier, Afghanistan documents seemed to fit the more classic definition of whistleblowing. They exposed specific acts of possible wrongdoing and the specific outcomes of those acts. At the time, I thought the other information was just overkill whistleblowing. The diplomatic cables seem of a different character. There are certainly examples of misdeeds scattered i them, but generally (especially in light of Assange’s writings on the topic of secrecy) it seems much more of a general anti-secrecy campaign rather than whistleblowing.

That may or may not be something that people want to defend, but it can’t really be defended on whistleblowing grounds. The reason to defend whistleblowing is because it balances against the use of secrecy to hide misdeeds that we have already decided are misdeeds (sexual harassment, bribery, other crimes, etc.). Whistleblowing isn’t an attack on secrecy in general, it is an attack on secrecy’s ability to bury crimes. We have whistleblowing protection statutes because we want to strike a balance between the legitimate concerns which allow for secrecy and other legitimate concerns. Assange’s more recent leaks are much broader than that. Essentially he seems to be attempting to remove that balancing act entirely.

But it is possible to agree that the balance has been struck too far in the direction of secrecy, without agreeing that there should be no balance whatsoever, or without agreeing that Assange and his secretive (!!!) organization should be the arbiters of that balance.

42

Martin Bento 12.14.10 at 5:48 pm

Strictly speaking, the TOS says *you* must own or otherwise control the material. Though I doubt it would stand up in Court, doesn’t this strictly speaking rule out the public domain? Nobody “owns” Metamorphosis anymore, but that means I also do not, and I have no control over it either. Strictly speaking, I think the TOS would prohibit me from posting the text, though I wouldn’t expect to see it enforced that way. Where is the tort? With wikileaks, though, there is an argument for harm. I suppose you could say PD material is “owned” by the public, and I am a member of the public, but that would seem to be a strange definition, as the essence of ownership is exclusivity, as far as I can see.

43

MarkUp 12.14.10 at 6:12 pm

How long does a disruptive student allowed to remain in class? I know when I taught we had an effective, though somewhat vaporous TOS [in effect] that could result in a students removal, not to deprive them from a learning experience but allow the others to fulfill theirs. Most business have similar ‘rights of [service] refusal.’ While I don’t agree with Amazon here, it seems an easy legal win for them under the need to protect the other patrons, their business.

44

Henri Vieuxtemps 12.14.10 at 6:15 pm

Funny how Amazon’s top concern in this episode is to protect the reputation of their precious ‘cloud’; god forbid someone should suspect that they kicked Wikileaks out because they couldn’t handle the DOS attack. If I was one of those pro-Assange/anti-Amazon hackers, I’d try to advance this theory to the point where it becomes common wisdom. The whole thing is hilarious.

45

Glen Tomkins 12.14.10 at 6:34 pm

I can’t see why anyone would think of any party’s behavior in this affair — Amazon’s behavior, Wikilieak’s, the US govt’s — in terms of copyright law, as opposed to security classification. We’re really beyond all law here, not just copyright law, and into a realm controlled by apparatchiks of the national security state’s secret police. The rules are what these people say they are. You’re not even allowed to know what the rules that govern the release of these documents might be, or they’ld probably have to kill you after they told you, all in accordance with these rules. The very existence of such rules is probably classified.

Govt employees are not allowed to call up any of this wilkileak material to their computers at work because the material has not been reviewed and declassified. Theoretically, they are not even supposed to read any of this stuff in the papers, but, as a practical matter, no one imagines that the NSA, yet, can keep tabs on what you read in the papers. But they very clearly can keep tabs on what you read online. Very clearly if you are a govt employee who has any sort of security clearance, and probably even if you don’t (it depends on what directives your agency has handed down), the NSA has the duty of keeping tabs on what clasified material you read, and you are potentially even criminally liable if you view classified material whose review is not within your scope of duties. Not that criminal liability is even the most worrisome sanction, as you are far more likely to face some sort of administrative action for this type of violation. Presumably such administrative sanctions don’t, yet, involve being dropped out of helicopters, but we wouldn’t know if it did until we ourselves were in freefall, and if it did, since the USA Patriot Act it would be as legal as church on Sunday.

And, just in case you were going to inject some common sense here, the publication of this stuff has not in any way had even the slightest effect on its classification status. It could all be known in Moscow and Beijing and in Osama’s cave, and publically known to be known in Mosocw and Beijing and that cave, and it’s still just as classified as it ever was, and reading or disseminating it carries the same entailments.

Several universities and businesses have followed the lead of the govt, and have tried to block access to the stuff through their computers because they are parties to any number of govt contracts that may entrain them into this whole classification mess. If you have a grant to do some work for DoD, or even State, you sign onto the classification regime, and not just for the classified material involved in that grant work, but for every stray bit of information ever classified. I would think that Amazon would not even begin to worry about the copyright entailments of this stuff until well down the list from the classification concerns.

There is a tendency to imagine that the, appropriately, very limited scope of the Espionage Act represents the sole concern arising from publishing classified material, and that since Amazon doesn’t have to worry about the Espionage Act, it doesn’t have to worry about publishing classified material per se, it can worry about the copyright law implications, etc. I don’t think that’s the case.

It would be great if it were only a tangled web we wove when first we practiced to set up a national security state. What we’ve actually created is a Black Hole inside of which all law and reason are suspended. It’s far more dangerous than what it’s supposed to protect us from.

46

c.l. ball 12.14.10 at 6:50 pm

Pitkin is right. The USG documents are not copyrighted. The FRUS volumes, which contain declassifed cables, are not copyrighted. That is why U Wisc can create a digital archive of them.

It is not illegal to posess classified documents or to reveal classified information in general. Only specific kinds of information

47

Dan 12.14.10 at 7:12 pm

If this is a copyright situation, Amazon has violated it more by publishing the documents, For Profit, in the UK.

48

scathew 12.14.10 at 7:26 pm

First, having read Glenn Greenwald, as you clearly have, you should be careful of:

“Just a big old heap of documents – that’s a heap”

Probably not intentional, but that helps support the contention (lie) that WikiLeaks just dumped all 25,000 documents out there – they didn’t. There’s less than 1,500 of the 25,000 released so far.

Second, the point about all government creations being public domain is a good one – thanks for forwarding it. I was wrestling with the “copyright” issue myself. Note also all “factual” information is also not subject to copyright. For instance, you can’t copyright data in a chart (you can copyright the format of the chart, but the actual data isn’t copyrightable). Nor for that matter can you copyright history – the fact that the NYT discovered that say Clinton lost the Nuclear Football isn’t copyrightable. The text stating it is, but not the actual fact that he lost it.

The point being, that I would wonder if reported facts from diplomats etc. could ever be copyrightable, for instance that Qaddafi has a buxom eastern block nurse. Granted maybe the cables themselves could be, but not the facts within.

Third, if WikiLeaks is guilty of Copyright infringement, so is the NYT and the Guardian, both of which have large legal departments that would probably have something to say if the Copyright argument was true.

Fourth, I imagine that some random country could just wholesale make up its own copyright rules. Say, Unobtania (taking after James Cameron’s officially stupidest name for a fake element) saying, “Anything published on the Internet reachable by Unobtania is owned by the Unobtania People’s Government”.

The point being, in a “flat world” (taken from the officially stupidest columnist at NYT) there’s an infinite number of unreasonable jurisdictional laws that could apply to copyrights (part of why Project Gutenberg struggles with cross-border “public domain”) not to mention all other avenues of speech. Should we limit freedom of the press in the United States because Unobtania’s libel laws say, “Though shalt not speak with ill of James Cameron lest thou be speak libel”? (really I like Cameron, just I think “Unobtanium” served as a spectacular if not singular “jumped the shark” moment in Avatar).

Fifth, I’m really dubious of a government using “copyright” to limit speech. In fact I think it should raise a bright red flag in anyone’s mind that perhaps the government itself has “jumped the shark” – that it’s flailing desperately because it knows it doesn’t have a leg to stand on.

Of course it may not have been the government’s idea. It would be an obvious cover for Amazon to come up with all by their lonesome (and I imagine “copyrights” are fresh on Amazon’s mind, given the business they’re in).

Finally, I do think there are reasonable concerns about the exposure of foreign service cables. The expectation of privacy in diplomatic services is a reasonable one as one needs to be able to be open, even stupid at times, to figure your way from point A to point B. As one other blog commenter noted, it is not necessarily constructive to forward the fact that you were initially attracted as much by your wife’s knockers as her PHD. Complete transparency is not always necessary nor the ideal.

That said, given we’ve had so little transparency, I think this current exercise will ultimately be a positive thing.

49

Lemuel Pitkin 12.14.10 at 7:30 pm

Strictly speaking, the TOS says you must own or otherwise control the material. Though I doubt it would stand up in Court, doesn’t this strictly speaking rule out the public domain?

As I noted above, Amazon sells several private publishers’ versions of the 9/11 Commission Report, which is in the public domain.

50

lunchstealer 12.14.10 at 7:31 pm

“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.”

I think this is an important distinction, but in this case, Wikileaks received a heap, but published a small (by comparison) subset. They didn’t publish all 25,000 cables, but took (I think) a couple hundred, redacted parts they felt would put individuals in danger, and published those select few to expose what currently goes on in either the administration of Afghanistan and Iraq, or in the diplomatic corps. And while they may be motivated by a general ideological stand that government secrets are ipso facto a bad thing, their specific goal with these leaks is to provide clear evidence of government misdeeds which were cloaked in secrecy. Possibly with the intent of simply preventing misdeeds, but possibly also with the intent to erode support for the government secrets he finds immoral.

So it’s not clear to me that Wikileaks would, in context, constitute a Sorites paradox. It may be a particularly effective whistle (I’ve heard train whistles from miles away) but it’s still a whistle, rather than a firehose.

51

Glen Tomkins 12.14.10 at 7:54 pm

c. l. ball,

It may not be illegal for members of the general public to handle classified material, but many people take themselves out of “general public” status when they have even glancing contact with the govt.

Just the examples from my own very limited experienc:

Every one who enters active duty in the Armed Forces is given a security clearance. Very few of them actually ever go on to handle any classified material. The point of the clearance is about 90% to get them entangled in the obligations of handling classified material, to get them out of “general public” status in terms of legal vulnerability.

I spent most of my military career in the Medical Corps. During that almost 20 years, I handled classified material exactly once, and I was unusually involved in tactical matters, for someone in the Medical Corps, anyway. But despite the dearth of actual classified material involved in military medicine, every single civilian we hired even at the stateside hospitals where I usually worked, had to sign an agreement about classified material that brought them out of “general public” status and into a status that made them quite vulnerable to legal consequences well short of any activity that would get them in Espionage Act trouble. There was standard paperwork we made even contractors sign, just to work temporarily in a stateside military clinic, that did the same thing.

While I am not as familiar with the details outside my own limited area of experience, my impression is that wide swaths of the federal govt have similar practices. I know from folks who work at DoJ, for example, that they have been instructed not to review the Wikileaks material, publically revealed or not, because to do so would violate the terms of their govt service, however wildly such review stands clear of any Espionage Act concerns. The Wikileaks site itself was blocked on their work computers, with similar concerns cited.

52

Wayne Dickson 12.14.10 at 8:10 pm

Seems to me you’re making a faulty comparison re The Pentagon Papers. Ellsburg (and Russo) stole the content of those documents. They shared them with reporter Neal Sheehan. Sheehan shared them with his editors, and they were subsequently published by the NYT.

Manning (allegedly) stole the content of the current documents. He gave them to Assange. Assange passed them on to editors of several newspapers, including the NYT, which subsequently published them.

Manning = Ellsburg. Assange = Sheehan (as the reporter who gave the papers he had received to the editor of a print newspaper). And NYT = NYT. Wikileaks also = NYT, of course (as an on line publisher … whose CEO happens also to be Assange).

Complicated, but I think it’s important to maintain that in terms of property rights Assange is not a thief, but a receiver of stolen property. From a different perspective he is a journalist to whom information was leaked by a whistleblower.

Manning describes his motivation in terms quite similar to those cited by Ellsburg: overall corruption, a series of specific lies, a feeling that the public has a right to know, etc. A whistleblower need not focus on one or a small number of specific incidents. A pattern actually is worse than a single incident. (Declaration of Independence?)

53

whitewidow 12.14.10 at 8:22 pm

Amazon is selling the collected wikileaks material themselves. So do they have to stop hosting themselves?

54

bianca steele 12.14.10 at 8:43 pm

@34
To the best of my knowledge, the law is in fact defined by what lawyers say it is, not by what you and I and the CT commentariat think it should be, whether because of prior moral commitments, victimization by propaganda, or strained reading of statute, precedent, and so on.

Of course, there is a grey area consisting of questionable acts that are out of sight of the law (not that all invisible facts are automatically legal, but that if a lawyer or judge haven’t seen it, they haven’t had a chance to say whether or not it’s legal).

55

bianca steele 12.14.10 at 9:00 pm

Re. @48: Just to be clear, working for the government is quite different from selling things to the government in the marketplace; and most commercial corporations place firewalls between the parts of the business that deal with classified information and those that do not. They place a premium on secrecy, too, of course, and not just because of the possibility of insider trading, and it is probably surprising how many college graduates think nothing of looking up whatever personal information they can get access to and sharing it with their friends.

56

Tim Wilkinson 12.14.10 at 9:01 pm

They did indicate they are going to appeal against the decision. According to the linked article, the dual criminality requirement was raised by the defence.

57

bianca steele 12.14.10 at 10:26 pm

As for the point in the OP about desire to harm being a defense, on the one hand, malicious harm wouldn’t seem to be a good reason, but on the other hand, there are things like Oscar lobbying: people might be more willing to forgive badmouthing John Holbo, for example, if it were in the service of getting tenure for his rival. Intuitively, the idea of a public figure in libel law feels like it might have something to do with this, but also just that there is a positive, easily understandable motive involved.

58

Random lurker 12.14.10 at 11:31 pm

As I said, I don’t want to be boring about the intellectual property issue, since it’s quite an OT concern. However, I had to study italian copyright law when I was at college, and I realized that most people (including publishers and authors) often have a bad understanding of it. Thus:

@26: I’m not a native english speaker, so maybe I misunderstood the wording, however in european continental law for sure “copyright” only cover “creative” works, meaning artistical works. It is possible that common law is different, but it seems strange to me (this would mean that works protected by copyright in USA would not be protected in Italy). Note that I use the term “artistical” in a very broad sense, for example most photos would be “artistical” for me, but not, for example, an ID card photo (would you pay royaltyes to someone who photographs you if you reuse the photo?).

@28: I believe that computer software is protected by “patent law”, not by “copyright” (at least in Italy it works this way). The difference in Italy is quite big: in order to protect something with a patent you have to actually apply to a patent (if you dont’t apply you don’t have any right), whereas if you can prove that you are author of any “artistic” work, you can claim copyrights even retroactively (“author rights” are considered a form of natural right, whereas “patent” rights are not).

My point is that, in this and other cases, a law that has by itself many shortcomings is strongly abused, often to the advantage of “strong” players.

59

Random lurker 12.14.10 at 11:41 pm

Sorry, an additional point:
The language of the law refers to “original” works, referring to the “original expression” of ideas, and not to original ideas themselves. But “creative original expression” necessariously refers to some sort of losely defined artistical quality, not to “any expression”, or everything would be subject to copyright.

60

elm 12.15.10 at 12:32 am

@53, Not to derail the topic too badly, but:

In the United States, computer programs are literary works, under the definition in the Copyright Act, 17 U.S.C. § 101.

Software may also be covered by patents in the U.S., though the Bilski decision casts some doubt on that.

Nonetheless, I think that there are problems and weaknesses in attacking WikiLeaks on copyright grounds. Other lines of argument are surely more likely to work and more effective.

61

John Holbo 12.15.10 at 12:43 am

“But “creative original expression” necessariously refers to some sort of losely defined artistical quality, not to “any expression”, or everything would be subject to copyright.”

Well, you could set it up that way, Random Lurker. Possibly in Italy it works that way, I don’t know. But not in the US. Software code is copyright-able, not just patent-able. Basically any significant fixation of language in a definite, recorded form is copyrightable.

http://en.wikipedia.org/wiki/Software_copyright

“Historically, computer programs were not effectively protected by copyrights because computer programs were not viewed as a fixed, tangible object: object code was viewed as a utilitarian good produced from source code rather than as a creative work. Due to lack of precedent, this outcome was reached while deciding how to handle copyright of computer programs. The Copyright Office attempted to classify computer programs by drawing an analogy: the blueprints of a bridge and the resulting bridge compared to the source code of a program and the resulting executable object code[1]. This analogy caused the Copyright Office to issue copyright certificates under its “Rule of Doubt”.[2]

In 1974, the Commission on New Technological Uses of Copyrighted Works (CONTU) was established. CONTU decided that “computer programs, to the extent that they embody an author’s original creation , are proper subject matter of copyright.”[1] In 1980, congress added the definition of “computer program” to 17 U.S.C. § 101 and amended 17 U.S.C. § 117 to allow the owner of the program to make another copy or adaptation for use on a computer.[3]

This legislation, plus court decisions such as Apple v Franklin clarified that the Copyright Act gave computer programs the copyright status of literary works. Many companies began to claim that they “licensed” but did not sell their products, in order to avoid the transfer of rights to the end user via the doctrine of first sale (see Step-Saver Data Systems, Inc. v. Wyse Technology). These software license agreements are often labeled as end-user license agreements (EULAs).

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) which criminalizes evasion of copy protection (with certain exceptions), destruction or mismanagement of copyright management information, and a clause to except ISPs from liability of infringement if one of their subscribers infringe. In addition, the DMCA extends protection to those who copy a program for maintenance, repair or backup as long as these copies are “destroyed in the event that continued possession of the computer program should cease to be rightful.”17 U.S.C. § 117”

As to scathew’s point:

“Just a big old heap of documents – that’s a heap”

Probably not intentional, but that helps support the contention (lie) that WikiLeaks just dumped all 25,000 documents out there – they didn’t. There’s less than 1,500 of the 25,000 released so far.”

This issue is not clear-cut, but I take it that it would concern not any particular release, which might be large or small, but the overall modus operandi and project/purpose of Wikileaks. This is what I meant when I said that there is a distinction between whistleblowing and what Assange is doing. A whistleblower does not set out to be a whistleblower. Whistleblowing is not the end but the contingent means to something else: better safety standards, redress of specific injustices, so forth. Similarly, under ‘fair use’ you are allowed to use other people’s stuff as a means to antecedent ends: criticism and reporting, for example. But Wikileaks is constituted to seek leaking as an end, in a more generic sense. Accordingly, it leaks in a more generic fashion. In the aggregate, Wikileaks is a big heap of documents, presented as completely as possible. It is its function to be just that. And that is problematic, for ‘fair use’ purposes, potentially. (I’m not saying I like this result, or that I’m sure the law would agree with me. I’m just saying this looks like a legal issue.)

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bianca steele 12.15.10 at 12:45 am

Incidentally, around 1990 it was generally accepted that you absolutely do not cede rights by putting stuff out on the Internet. About ten years later I started to hear people
say you gave up all rights by publishing there. The change in attitude seems to have something to do with the difficulty most people would have defending those rights.

63

Adam 12.15.10 at 1:12 am

Guys,
For the first time in many days, I came across a very interesting analysis of this whole WikiLeaks incident. Its by an IT security pro and it provides a refreshingly objective analysis of the incident from a security perspective.

It got me thinking so I thought I’d share it with you guys – The WikiLeaks Security Incident – A Warning and a Wake-Up call to Organizations Worldwide.

I highly recommend checking it out . Insightful and thought-provoking.
– Adam

64

John Holbo 12.15.10 at 1:23 am

“presented as completely as possible”

Just to be clearer: they do redact, but on the whole the objective is the fullest, completest disclosure consistent with not endangering innocent lives. (I take it that’s their current standard.) That’s not really the same as ‘fair use’, which is precisely the opposite of just passing along stuff fully and completely. One off-the-cuff possibility is that Wikileaks could defend its practices on more or less the same grounds that search engines like Google do, hoovering up great gobs of copyrighted material every second, without asking permission. (Just a thought. Haven’t thought it through.)

65

Martin Bento 12.15.10 at 1:31 am

Lemuel, I very much doubt that Amazon is bound by its own TOS in the role of user. There’s no reason they have to be, so why would they put that constraint on themselves? This also applies to carrying published books that include wikileaks material. You click to accept their TOS; they don’t, and the TOS itself certainly does not treat you and them the same. I also said there would probably have to be a case for harm for it to be enforceable. Hard to see one for the 9/11 report; easy to see one for wikileaks (whether you accept that case is another question, but clearly an argument can be made. Intentional harm, in fact).

66

John Holbo 12.15.10 at 1:41 am

“About ten years later I started to hear people say you gave up all rights by publishing there.”

But it’s important that, legally, this is complete nonsense, bianca, whatever people say. Every (reasonably substantial) blogpost you write is copyrighted, whether it has ‘literary’ merit or no. Every photograph you post is your intellectual property, even if it’s a bad photo of a dull building. It’s true that the proliferation of rights, in this way, goes together with a lack of enforceability, but really this is just a lack of enforcement. The point is: if someone really wanted to enforce these rights, they could. If someone wanted to publish a selection of my dull old blog posts as a book, without asking my permission, I could hire a lawyer and force them to stop. Legally I would eventually prevail because there is no question whatsoever that all my dull old blog posts are copyrighted, and I own that copyright. We don’t need to wonder whether they are ‘literary’ enough, or anything like that, under US law. So the question is: might anyone whose copyright has technically been violated be interested in bringing suit against Wikileaks? Perhaps the US government itself, if Wikileaks seeks to publish overseas, which they currently are doing, rather than in the US, which would necessarily be legally in the clear, copyrightwise. What about other agents or agencies whose stuff has been leaked? It strikes me as not totally absurd to anticipate that someone might be willing to go to the trouble of making a case. The world is full of powerful folks groping for legal leverage against Wikileaks, after all.

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John Holbo 12.15.10 at 1:42 am

“Every photograph you post” – so long as you yourself took it, of course!

68

elm 12.15.10 at 2:33 am

John, wouldn’t a copyright case against WikiLeaks by, a fictional organization like Bank of Bamerica require Bank of Bamerica to admit that the documents published by WikiLeaks are authentic internal documents? If they were fabrications, then Bank of Bamerica couldn’t possibly hold the copyright.

That may be a significant disincentive to trying to suppress that information through a copyright suit.

69

John Holbo 12.15.10 at 2:53 am

elm, I admit that each individual actor in this position would probably prefer that some other actor in this position do the legal dirty work. The problem, as you say, is that bringing a potentially legal landmark suit in this way would only draw MORE attention to whatever thing you presumably don’t want attention brought to. I’m not predicting that this will happen, merely noting that when you multiply small chances, individually, of someone deciding to try out this novel line of defense, you eventually add up to a not-so-clearly-small chance of someone trying it on for size.

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Dan Kervick 12.15.10 at 3:23 am

Manning = Ellsburg. Assange = Sheehan (as the reporter who gave the papers he had received to the editor of a print newspaper). And NYT = NYT. Wikileaks also = NYT, of course (as an on line publisher … whose CEO happens also to be Assange).

I don’t know. It seems to me that there is no Sheehan here. Manning = Ellsburg, yes. But Wikileaks = NYT and also NYT= NYT. Wikileaks is just a not-so-new form of electronic journalism with a fancy and provocative name. Manning stole the documents, and provided copies to Wikileaks, allegedly anonymously, and Wikileaks published them. How is this different from what has happened many times before when press organizations publish classified documents that come into their possession from anonymous sources? As it happens, they also shared additional copies of their scoop with other journalistic organizations, who also published the documents. That’s more like the NYT sharing the Pentagon Papers with the the Washington Post, LA Times and Christian Science Monitor – not Sheehan conveying received stolen property to a newspaper.

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Glen Tomkins 12.15.10 at 3:30 am

re #50

One of many logical absurdities we allow by allowing such a wide space to official secrets, is that information doesn’t get out from under the classification system just because it has already been widely disseminated. No other event than the act of declassification by the secrecy functionaries can ever get any information out from under the restrictions. In my experience, which also includes confidentiality issues arising under an actual, sane, rule of law, over such things as medical records, which have been confidential for much longer than we have had a national security state, you don’t have these bizarre logical lacunae.

So your university that has signed an agreement to protect official secrets as part of a grant it has from the govt, or the corporation that signs such an agreement as part of a contract involving handling some such classified material, can do an excellent job keeping that classified material under wraps and behind a firewall. But along comes John Holbo in some department of the university that has nothing to do with the grant or its classified material, and he uses a university computer on the other side of the firewall to access classified material at the Wikileaks site that, even if it has nothing whatever to do with the grant material, is still classified material that the university has failed to keep Holbo from accessing. You can be sure that the agreement that the university has about protecting classified material doesn’t limit the university’s responsibilities to just the stuff they’re using in the grant research. Nothing classified ever gets described in any sort of identifying detail in any public document.

Now, nobody here has violated the Espionage Act, so it’s unlikely that anyone will be led off in manacles. And even if the agreement the university signed is such that it has violated that agreement by letting Holbo use one of its computers to get at classified info at the Wikileaks website, there probably will not be a lawsuit. But the real problem with these agreements, where they really entangle wide sectors of our society, is that they open institutions to adminsitrative actions, mostly secret, and, of course, classified, actions.

Maybe they won’t throw anybody out of a helicopter over this matter (though it would be legal if they did), but the academic death penalty (no, not denial of tenure — don’t be so last century) might be applied, the grant might be pulled, or future similar grants denied. The university would have no due process rights whatever in such an eventuality, because there is some apparatchik somewhere, you’re not allowed to know where, whose approval is needed to allow classified material to be handed over to university researchers, and this person is answerable to no one that you’re allowed to know exists. The agency sponsoring the grant could be perfectly happy with the university researchers’ work, that agency could be, even if it were unhappy, constrained by all sorts of legal obligations against arbitrary termination or denial of grant money. But the security apparatchik isn’t so constrained, and he or she’s the one making the decision when classified material is involved.

As far as I know, and at this point I only know what I read in the papers, we haven’t had such reprisals from the security people over this matter. But, on the other hand, and just from what I read in the papers, we have seen all sorts of corporations take action against Wikileaks, even ones wihtout any exposure to possible copyright infringement issues, and I don’t think they’re doing this just because Senator Lieberman phoned them.

We’ve seen politicians call for helicopter-dropping Assange, and they don’t seem to have suffered any blowback for what you might have thought might strike many people as extreme. We seem poised on the edge of another season of McCarthyism, this time over “terror”, which has this value for the exploiters of fear, that it is even more projectable onto just about anything than was Communism, which you were sort of compelled to trace back to the SU or Maoist China. These entanglements over classified information would seem tailor-made to be the means that the HUAC the Republicans are talking about reviving will exert its control. At the very least, I think that, in this political climate, there is a much greater chance of the govt enforcing its security interests against people who even just serve as a conduit for this information, than that the govt will even try to assert any copyright claims they might have even against publishers.

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John Holbo 12.15.10 at 3:44 am

“Manning stole the documents, and provided copies to Wikileaks, allegedly anonymously, and Wikileaks published them. How is this different from what has happened many times before when press organizations publish classified documents that come into their possession from anonymous sources?”

It’s not obviously different. But it’s not obviously the same. Wikileaks is operating as a middleman, where there didn’t use to be a middleman. One of the justifications that is typically offered of the NY Times publishing “Pentagon Papers”-style stuff is that it is vetted, before release, and journalistic standards are applied. Wikileaks presents itself as operating upstream somewhat from that. It is presenting stuff for journalists to pore over and, potentially, find items of interest. So Wikileaks isn’t quite like Ellsberg. It isn’t the leaker. But it is like Ellsberg in that it is presenting stuff for journalists to use, rather than doing journalism itself. I think we have to admit Wikileaks is neither fish nor fowl, with regard to the old way of doing things. That means that the old standard – according to which the leaker is punishable, potentially, but not the publisher – is a bit unsteady. That standard still looks good, but it doesn’t look great, because it is a bit too round peg/square hole.

It comes down to the question of ‘journalistic standards’. What do we think that means, and how essential is meeting this standard to the justification for the NYT publishing “The Pentagon Papers”? Is ‘publishing’ always ok? Or is ‘journalism’ always ok? And what’s the difference?

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c.l. ball 12.15.10 at 3:51 am

Glen Tomkins is right at 50 and 71 that USG employees, contractors or consultants authorized to handle classified information and who then mishandled it can find themselves in hot water, but the sanction is usually withdrawal of the security clearance. Only in cases of defense information (18 USC 793), such as plans of US military facilities or equipment, or case of cryptographic information or methods (18 USC 798) are such persons criminally liable, and even then there are requirements to show intent to aid a foreign power and similar types of motive (the espionage laws that Tomkins refers to in the case of sec. 793).

Assange is free and clear of any US criminal liability as best I can tell. The US has no official secrets act. There was an attempt to pass one in 2000 as part of an intelligence bill, under Clinton, but it was removed from the legislation. The Defense Dept. spokesperson at the time spoke out against the bill, noting that if he accidentally disclosed classified information, under the proposed law, he would be criminally liable. Given the proclivity of the government to classify previously unclassified information (a la Wen Lee Ho) or reclassify previously declassified information (a la Bush admin. practices) such a system would be unworkable.

The focus — quite rightly — has been on keeping people who have access to such information from disclosing it in the first place without authorization.

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Dan Kervick 12.15.10 at 4:07 am

Wikileaks is operating as a middleman, where there didn’t use to be a middleman.

I don’t get this, really, John. If Wikileaks had just published the documents themselves, without sharing them with other journalistic organizations, nobody would think Wikileaks is a new kind of middleman between the leaker and someone else, since there wouldn’t be a someone else. And there have been other cases when journalistic organizations have shared their scoops with competing journalists. This happens all the time with non-profit and collaborative journalists.

Does the fact that a journalistic organization practices a no holds barred form of journalism, rather than a “fit to print” model, make it any less a journalistic organization? Wikileaks just applies different standards of editorial judgment. Their view is that if some text is generated and classified inside the US government, it is worth putting in the public record. That might be a dubious editorial judgment, but it’s an editorial judgment nonetheless.

If there is anything different about Wikileaks, I suppose it has to do with the fact that they take extraordinary measures to minimize the risk to the source, protect their sources’ identities, and even to shield those identities from their own reportorial and editorial staff. But that doesn’t seem any different in fundamental kind from an old-school print outfit putting a sign over their midnight mail slot that says, “If you’ve got juicy stuff, we want it. No questions asked!”

I think there is a lot of confusion sown in the public discussion of this case by Wikileaks own chosen name, which suggested to a lot of politicians and pundits that Wikileaks was itself a “leaker”. There is also the usual phenomenon of people being dazzled by new technologies, and mistaking new means and gizmos for fundamentally new phenomena.

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c.l. ball 12.15.10 at 4:36 am

The USG may claim copyright status for USG works abroad subject to the national laws regarding government copyright in the specific jurisdiction, e.g., the US could claim whatever governmental copyrights that the UK grants in the UK. This means that the legal question will vary from country to country.

The point is, however, that implicit claims by PayPal, Amazon, and other firms that WikiLeaks has engaged in illegal actions, and this is why the TOS is violated, are bogus. It is not illegal to receive classified information or disseminate it, at least in the case of U.S. diplomatic cables. No copyright was broken in the US; none has yet been asserted abroad. Those firms are quite right to deny service to whoever leaked the cables, but

In the case of a foreign government, if it is a party to the universal copyright convention or if the president finds that it grants roughly the same copyright to US authors in its country as they receive in the US, then it could claim a copyright.

The fair use decision (17 USC 107) also takes into account:

(1) the purpose and character of the use;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

In short, unless the foreign government or firm for that matter, plans on publishing its secret, internal documents itself then we can duplicate and publicize the whole lot as we see fit here in the USA.

The only exception that would arise, in the case of firms, is whether the publisher of the documents would be revealing trade secrets, but even then 18 USC 1832 requires that the intent of the publisher of the secret intend to “convert” the secret to the “economic benefit” of someone other than the owner. Incidentally identifying a trade secret as part of an effort to achieve some other, legal purpose would not necessarily count.

The Senate report on the copyright law is here: http://www.thefullwiki.org/Copyright_Law_Revision_%28Senate_Report_No._94-473%29

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Lemuel Pitkin 12.15.10 at 4:49 am

I think Dan Kervick and c. l. ball have the last word here. There’s no legal basis for Amazon’s copyright claims, and no substantive difference between Wikileaks and “legitimate” journalists.

It’s really not that complicated.

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John Holbo 12.15.10 at 6:41 am

“There’s no legal basis for Amazon’s copyright claims”

I think it’s a bit more complicated at least, since – so far as I know – Amazon has only claimed its tos was violated. They don’t need to know that copyright has been violated. They can just object to not knowing that it hasn’t. (I agree that this is an artificially high standard, basically functioning as ‘we get to get rid of you if you are trouble’ clause.) I do think it’s worth thinking about – and not so uncomplicated as you suggest – that Wikileaks could, eventually, in some jurisdictions, find itself in copyright trouble. You only have to go bankrupt once to be seriously hindered in your operations, after all.

As to c.l. ball’s comment –

“The fair use decision (17 USC 107) also takes into account:

(1) the purpose and character of the use;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

In short, unless the foreign government or firm for that matter, plans on publishing its secret, internal documents itself then we can duplicate and publicize the whole lot as we see fit here in the USA.”

– I don’t think the ‘in short’ is an adequate gloss. If I take your unpublished manuscript from your desk – the one you had no intention of publishing, because you don’t think it’s good enough – and publish it without your permission (or if I receive it from someone who took it from your desk – so I am not myself guilty of theft – and publish it without your permission) you still own the copyright. You can legally prevent the publication, even though, by hypothesis, you weren’t going to make any money off it anyway. The question is: might some documents that Wikileaks releases be relevantly like that unpublished manuscript, in the eyes of the law? Possibly so. All this is highly speculative, of course.

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Martin Bento 12.15.10 at 10:45 am

Amazon came out and said that the issue was that wikileaks did not own the material, and that there was harm. Not that someone else did own it, but that wikileaks did not. That’s what the TOS says: *you* must own or control the material. Though it would probably not usually be enforced, strictly speaking, that prohibits work in the public domain too. After all, this is not the law; this is a contract, and Amazon can put in whatever stipulations it likes, so long as they are not illegal, and I don’t see what would be illegal about refusing to host public domain works or about having discretion in the matter. The Guardian quotes a computer security expert as saying it doesn’t matter for public domain material, but he doesn’t say why not. Just because the issue here is usually violating someone else’s copyright shouldn’t prevent people from seeing the problem any other way. Amazon has a case that their terms have been violated, even if just technically. Like I said, most public domain postings would do no harm, so it is not clear who would have standing to object. But the US government can make a case for deliberate harm in this case, so it doesn’t matter whether the material is in the public domain or not. Assange clearly doesn’t own it, and that’s what the TOS requires. And, no, Amazon itself is not bound by the requirements its TOS puts on users, so it can still publish public domain material, including things from wikileaks, without violating this.

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bianca steele 12.15.10 at 6:40 pm

John Holbo @ 67
It seems almost trivial that somebody might make a profit from selling my blog posts to people who wouldn’t read them otherwise because I didn’t intend to publish them in the normal way, but another result would be that I couldn’t publish them myself if I did want to, and there would be other consequences. It might be very apparent that they had copied (which would be a risk they’d take), but it might also appear that I had copied from them. It might look as if I had a relationship with them, or with someone else, that I didn’t have. Their reusing material that was on my blog might affect the way my pages appear in data mining apps. They might be able to use the material for phishing (or social engineering), in the worst cases leading up to identity theft.

Although I’ve no doubt a lawyer would give me the advice that I just shouldn’t put anything on the network if I asked, given that I was obviously pretty concerned about possible misuse, lawyers would presumably give different advice to possible editors.

This doesn’t really have much to do with the OP unless you think people are going to log onto the WL site to look for material they might like to republish or reuse.

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novakant 12.16.10 at 5:50 pm

#61

I don’t see any similarity between computer code and government documents, what’s the point?

Also, any significant fixation of language in a definite, recorded form is copyrightable seems just wrong, you will not get copyright for just anything, it has to be some sort of original creation and presented in a certain form.

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bianca steele 12.16.10 at 7:26 pm

If true, this would mean Italian newspaper articles are not under copyright, and this seems not very plausible.

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c.l. ball 12.16.10 at 9:57 pm

I’m not sure the unpublished manuscript would be a good analogy. A better one would be, let’s say, internal emails between members of the board of a scholarly organization. Now, there would be little conceivable market for these emails, but they might reveal how a scholarly organization actually functions. WikiLeaks seems to be after similar such documents or video.

One hint at how the US legal system might deal with this is _Salinger v. Random House_:
http://www.law.cornell.edu/copyright/cases/811_F2d_90.htm

In that case, the potential value of the letters, rather than Salinger’s intent (to never publish them), mattered.

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bianca steele 12.16.10 at 11:17 pm

@83 little conceivable market
Well, from headhunters.

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pdf23ds 12.18.10 at 10:55 pm

It’s 250,000, people, not 25,000.

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