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Date: Mon, 24 Jun 91 23:58:37 EDT
From: Jerry Leichter <@mp.cs.niu.edu:leichter@LRW.COM>
Subject: Bill Vajk, Len Rose, Gene Spafford

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***  CuD #3.24: File 2 of 8: Vill Vajk, Len Rose, Gene Spafford  ***
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In CuD 3.22, Bill Vajk writes an (overly long, repetitive) note in
response to an earlier note of Gene Spafford's.  I don't want to go
into the details of everything he has to say; I'll make one comment on
fact, and another a general observation.

On fact:  Vajk tries to attack the claim that Rose violated a trade
secret or copyright of AT&T's by saying that AT&T claims both trade
secret and copyright protection on the Unix source code, and they are
incompatible because copyright protection requires deposit of a copy
of the code with the Library of Congress, where the copy is available
freely to the public.

This is dead wrong.  First of all, deposit is required within 3 months
of PUBLICATION; however, even unpublished material can be protected by
copyright, and AT&T can reasonably claim that they never published the
source code.

Second, there are exceptions to the requirements for deposit which
will usually cover software.  In any case, as a matter of law, even if
the copyright owner disregards the deposit requirement, the copyright
remains enforceable (though the owner may be subject to fines or other
penalties.)

Third, even where deposit is required - as when one wishes to register
the copyright, a necessary first step in defending it in court - the
Copyright Office has recognized the issue of trade secrecy, and does
not require the entire program to be deposited.  There are a couple of
choices - e.g., you can deposit the entire first and last 10 pages of
source code, or the first and last 25 pages with no more than half of
the text blacked out, etc.  (Note:  This is taken from a Notice of
Proposed Rulemaking issued in 1986, as quoted in a 1990 book.
Apparently it is the policy that is being followed, although it has
yet to be made completely official.)

Finally, while it is true that copyright infringement as such is not a
criminal matter, the copyright law does provide criminal penalties for
fraudulent copyright notices and false representation.  Also, going
beyond copyrights as such, once a property right exists, it can be
stolen.  Depending on the circumstances, the theft may or may not be a
criminal matter.  If you leave your car at my service station for some
repair work and I start using it and refuse to return it, you can sue
me civilly for conversion; I am probably also guilty of auto theft.
Civil and criminal law are not necessarily mutually exclusive.

On philosophy:  Vajk is right in commenting that some of the pain
people are feeling is from seeing the law applied to "nice middle
class white kids" in a way it is usually applied to poor black ones.
The fact of the matter is that, for the most part, the law leaves the
nice white middle class alone.  Its instincts and modes of operation
are developed for a much rougher atmosphere, where a kid being
rousted, whether for good reasons or bad, is quite likely to be armed,
or at least potentially dangerous.  Sure, a cracker - or a whitecolor
criminal - is unlikely to attack the police who've arrested him; but
policy says that those under arrest will be handcuffed, because it's
safer (for the police) that way, and their safety outweighs the
arrestee's dignity.

Presumption of innocence or no, the gut feeling that police,
prosecuters, and probably most defense attornies have is that those
arrested are probably guilty, if not of the particular offense
charged, then of SOME offense.  Guilt and innocence are of much less
importance than making sure the legal rules are followed - and those
legal rules can and do play rough.  Innocent or guilty, you DON'T want
to be caught up in the criminal justice system.

Vajk is incensed that police officers are "learning on the job" how to
deal with computers.  In "To Engineer is Human", a wonderful book,
Henry Petrofsky points out that engineering never learns much from
successes, only from failures.  The law acts the same way.  It's not
only police officers and prosecutors and judges who are "learning on
the job"; it's the entire legal system.  Much of the law is based on
precedent; before a precedent is established, there IS no settled law
in a particular area.  Even law that is based on statute doesn't come
out of nowhere:  Laws are usually drafted in response to perceived
problems.  Only rarely are they anticipatory, and then they often turn
out to be wrong.

What we are seeing right now is the legal system learning what the
right way to deal with "computer crimes" is.  It tried ignoring them;
that eventually proved unsatisfactory.  Now it is reacting, and as is
to be expected, it is doing so by pushing as hard as it can.  The
eventual boundaries of the law will be determined by the sum of the
various pushes - by overzealous prosecuters, by defense attornies, by
citizens enraged by computer crimes and citizens enraged by government
over-reaction.  One way or the other, the Steve Jackson case will
establish some of the boundaries of search and seizure of computers.
Had the Neidorf case gone through a full trial, it might well have
established something about First Amendment protections for electronic
publication.  As it is, it made the prosecuters look stupid and AT&T
look like liars.  The next time around, a prosecuter will think twice
about putting his reputation on the line based on some unverifiable
AT&T claims.  That, too, is part of the education of the legal system.

The courts deliberately avoid deciding issues until they are forced to
by actual cases.  (There are some minor exceptions to this rule.)  In
practice, this means that if you want to challenge, say, an abortion
law in court, you have to violate it - and be prepared to go to jail
(as many challengers did) if your challenge fails.  This method has
worked reasonably well over hundreds of years, but it has the
unfortunate property that while the boundaries of the law are being
paved, some people will end up in the wrong place at the wrong time
and will end up being squashed by an on-coming steamroller.  The
steamroller may have to roll back later, but that doesn't do the
flattened fellow much good.

So ... don't look at the current problems as a sign that the legal
system is incapable of dealing with computer and communication
technology.  That's not at all what is going on.  Within a couple of
years we'll be on pretty firm ground on these issues.  The important
things to do now are (a) help provide pressure to push the law in the
right directions before it "sets"; (b) help support the relatively few
casualties of the process.  I applaud EFF's efforts to do (a) (even if
I don't always agree with the particular positions they may choose to
take).  As far as I can see, EFF isn't deliberately doing (b), though
that will be a side-effect of some of their other actions; but in
general (b) is more effectively done by concerned individuals in any
case.

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