The problem of piracy is serious and growing. Recently, the head of a software piracy ring invited a Los Angeles Times reporter into her home to watch the ringleader lift a new, expensive computer game from LucasArts Entertainment Company, with help from a paid inside saboteur. Using the Internet, the pirate next linked up with a programmer in Moscow who cracked the code, making it possible to play the game without an owner’s manual. The game was posted on a Seattle-based bulletin board through the Internet — days before its official release. Anyone who accessed it conveniently avoided the $65-per-copy retail price, which potentially cost LucasArts millions in retail sales.
Computer piracy extends well beyond computer games. Almost any creative work can be unlawfully exploited on the Internet — and not just when the work is posted on the Internet by the author. There is a growing problem of pirates obtaining copyrighted works and then posting them on the Internet themselves, seeking to undermine the copyright protections and underhandedly “dump” the protected work into the public domain.
This problem has emerged with alarming frequency. In Boston, a professor and book critic found many of his reviews getting posted and used without his knowledge — until after the fact. Such postings potentially denied him any livelihood he may have been able to make from his own works.
A software developer in San Jose, California, found new and unreleased programs being pilfered from computer files by pirates who broke in through the Internet on a Sunday afternoon; though he quickly pulled the plug, more than enough programs had been stolen to eat up his paycheck.
Jerry Berman of the Center for Democracy and Technology noted that “[t]he technology makes it simple, but the law still says if you copy all of USA Today and send it around the Net, you’re violating a copyright.”
Bulletin board system (BBS) operator and service provider Netcom, based in San Jose, California, refused to take action on infringement of copyrights of the Church of Scientology, even when put on notice.
Netcom’s principals insisted that they had no responsibility for their users’ postings and that they could not be held accountable for them. They even went so far as to claim that they did not have the ability to take action to remedy the violations of the law.
Freedom has learned that those assertions, while convenient to Netcom as it struggles to manufacture a defense, simply do not comport with the facts. The simple truth is that while Netcom refused to take action on a known infringer, they have often taken matters into their own hands behind closed doors. An insider reports that Netcom staff accessed and rummaged in client files, without authorization, to arbitrarily delete material which they unilaterally judged to be in violation of copyright law. Moreover, Netcom reportedly cooperated with the FBI to search client accounts in child pornography cases and even removed an entire BBS off the system in response to complaints.
There was even an incident reported of an Italian subscriber’s account being terminated by recently dislodged Netcom chairman and CEO Robert Rieger because, according to Rieger, “All Italians are hackers.” Yet, in spite of Netcom’s willingness to act behind the scenes to remove subscribers from the Net, they have maintained a totally contrary position in court and to the public. One might legitimately ask why.
Netcom seems to have become a victim of the very people that it provides with access to the Internet. The scheme of economic blackmail goes like this: if Netcom acts overtly to remove the violators, Internet anarchists will claim Netcom is stifling the “freedom of the net,” and run a campaign to persuade Netcom’s customers to change to a different access provider. Out of fear of financial loss, Netcom has apparently elevated revenues above the law.
Netcom’s greed is confirmed by further information made available to Freedom. When notorious criminal hacker Kevin Mitnick compromised 3,000 credit card numbers of Netcom customers, Netcom’s Reiger refused to warn the concerned customers. Reportedly there were other breaches that compromised personal information and involved more than 20,000 Netcom customer accounts. None of the subscribers were notified because Netcom was afraid that the scandal would adversely effect share prices in their initial public offering — in direct violation of SEC regulations requiring that potential investors be informed of information relevant to the stock value prior to consummation of the public offering.
Against that background of naked corporate self-serving opportunism, Netcom’s claims of principled motives to “protect free speech” are nothing more than a smoke screen to hide their true objective — making a buck at the expense of innocent people and the rights of law — abiding citizens to protection under the law. This is just another example of the need for ethical boundaries to be imposed on cyberspace. It is precisely these sorts of activities which jeopardize the Internet for everyone and threaten thorough legislative regulation.
But the courts are closing in on these abuses. A federal court in San Francisco issued a preliminary injunction against Internet user Chad Scherman and the “Maphia” bulletin board service after evidence showed that unauthorized copies of Sega video games had been uploaded onto the BBS, encouraged by Scherman who profited financially from the illegal postings. Scherman’s claim that his use was “fair” or for “educational purposes” was rejected by the court.
A more troubling side of high-tech abuse is anonymous postings. An Internet user, seeking to hide behind the cloak of anonymity, posts copyrighted material through another, known as a “remailer,” who acts as a conduit or relay point. The remailer strips the message or computer document of any identifying marks and posts it on the Internet.
Anonymous postings create a new problem, as the creator-author faces often-unsurmountable obstacles to obtain legal remedies against a person or persons infringing on his copyright when he cannot tell who is doing it.
Esther Dyson, member of the board of directors of the Electronic Frontier Foundation and member of the National Information Infrastructure Advisory Council, spoke on the anonymity issue at the fifth Computers, Freedom & Privacy (CFP) conference in San Francisco. “I have a concern about the spread of bad behavior on the Net,” said Dyson. “Anonymity figures into this, and I feel that it has proven to not be a positive factor. It breaks down the community which we are seeking to build, and could turn the ‘big cities’ of the information infrastructure into a big cesspool.”
Remailers who facilitate anonymous postings are part of the problem. They can act as conduits for those who seek anonymity as a way to act illegally without getting caught; yet remailers are able to shield themselves from responsibility or liability.
Computer experts stress that anonymous users should at least be trackable by the remailers — and that ones who act unlawfully can easily put the remailers at risk. Dyson noted that in self-regulatory schemes for almost any part of the Internet, “visibility, not anonymity, would have a strong place.”
An estimated $2.3 billion in software was anonymously pirated in 1993, much of it through the Internet, according to the Business Software Alliance. Leading consulting firm Ernst & Young conducted a study and found that 50 percent of 1,271 companies studied had suffered financial losses from computer security breaches and theft. And, with the Internet functioning and growing at a rate of up to 20 percent per month, this is sure to increase.
The potential of the Internet to link individuals from all corners of the world and unify diverse cultures and nationalities makes it a priceless resource for improving understanding between peoples.
But the freedom provided by the Internet is also open to abuse, and unless the laws are applied on the Internet as well as off it, we will not have global freedom of expression but rather cyber-terrorism. Over-regulation will also ensue if a few dishonest individuals are allowed to flout the law.
Calling for application of the laws and exercise of self-restraint is a substantial contribution to preservation of the right to free expression.
But free speech does not mean free theft, and recently, federal authorities have cracked down on crimes in cyberspace. Criminals on the information superhighway have made it necessary to have traffic rules. If the net users and the access providers do not see that the rules are followed, the courts will be forced into the role of highway patrol.
Censorship is not the real issue, but a smoke screen raised by lawbreakers to divert attention from their own wrongdoing. Laws protecting copyrights and trademarks — and those providing redress for defamation and false accusations that threaten their livelihood or reputation — apply in full to the citizens of the computer world.
It is vital that all users demand responsibility along with the freedoms the Internet brings.
Freedom
In 1822, 144 years before the passage of the Freedom of Information Act, James Madison described the importance of citizen access to information:
“A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
Many of Freedom’s exposes through the years have been based on documents obtained under the Freedom of Information Act. Recent events, described in this article, furnish an example of the Freedom of Information Act in action.
Late last year, when Congress approved $1 million for the National Academy of Sciences to conduct a public health study of zinc cadmium sulfide, the power and necessity of the Freedom of Information Act was again demonstrated.
The cancer-producing compound zinc cadmium sulfide was used in 300 open-air chemical and biological warfare tests in hundreds of American cities during the 1950s and 1960s.
The long trail to uncover the tests and the effects of the compound began in the 1970s when the Church of Scientology and Freedom began to systematically investigate and expose harmful chemical and biological warfare experiments and inherent human rights violations. Their tool was the Freedom of Information Act.
Freedom published a series of articles in the 1970s and 1980s about the testing, based on analyses of the documents obtained under the FOIA.*
Renewed public interest in the experiments was sparked in late 1993 when Department of Energy Secretary Hazel O’Leary unsealed the department’s massive files on secret government radiation tests. The resulting stream of horror stories about innocent men, women and children victimized in radiation tests shocked the nation.
As Congress began a series of hearings on the secret tests, Church of Scientology spokesperson Sylvia Stanard reminded congressional investigators of the similar plight of the unwitting victims of chemical and biological warfare.
In the late 1970s and early 1980s, as the Church analyzed documents it was obtaining under the Freedom of Information Act, the findings were widely reported by the Washington Post, the Los Angeles Times, The New York Times and many others.
In 1994, against the background of the radiation testing controversy, news media again covered the zinc cadmium sulfide experiments. KCTA television in Minneapolis broadcast an investigative series on tests in which zinc cadmium sulfide had been released repeatedly over that city. The series, which used documents obtained by the Church, included interviews with victims who had been stricken with strange and unexplained illnesses following the tests.
Responding to the public concern regarding secret Army sprayings, U.S. Senator Paul Wellstone and U.S. Representative Martin Olav Sabo, both of Minnesota, ensured special legislation was included in the Defense Appropriations bill for fiscal year 1995.
Following passage of the bill, the National Academy of Sciences Committee on Toxicology established a special subcommittee to conduct the review. Subcommittee chairman Dr. Regene Henderson told Freedom that her subcommittee will be looking at every city in which the Army conducted tests. They will also be conducting public hearings in some of these cities. An interim report will be published this year, with a final report scheduled for late 1996 or early 1997.
Stanard told media that “Although U.S. citizens deserve to know about actions of our government which may have adversely affected their health, without the Freedom of Information Act, records of these tests would never have seen the light of day
The Freedom of Information Act has been praised as one of the most powerful tools ever put into the hands of the people of a nation seeking to ensure integrity in their government.
Before the act was passed in 1966, no law provided for public access to government information. One could ask for information, but, far more often than not, those requests were denied or ignored.
In practice, there was widespread dissatisfaction with the original statute, and it was substantially strengthened in 1974.
The Freedom of Information Act provides that any person can request access to any records of the executive branch of the federal government, and that those records must be released unless protected from mandatory disclosure by some provision of the Freedom of Information Act itself, or of some other federal law. If only a part of a record is exempt, that portion may be excised, but the remainder must be released.
This right of access is enforceable, if necessary, by filing suit in federal court. The government must then prove that the denied material is exempt.
I have long believed that secrecy is the mortal enemy of democracy. The more secrecy, the less democracy. The more that citizens are told that they must trust their government — that they must take on faith its integrity, and the value of what the government is doing and why it is doing it — the greater is the tendency away from democracy as we would like to see it.
The Freedom of Information Act helps us to learn what is actually going on inside our government. Remember that any government, regardless of the party in power, will seek to conceal some of the things it does and, more frequently, the reasons for the actions it takes or fails to take.
While it makes sense that there be some restrictions on freedom of information, such as to protect the personal privacy of individuals and ongoing law enforcement investigations, the post-World War II history of our country is filled with examples of secrecy far beyond any legitimate need.
Fortunately, the overall trend during the past 30 years has been toward greater freedom of information, not less.
The Freedom of Information Act has enabled us to learn more about Watergate, Cointelpro, the assassinations of John F. Kennedy and Dr. Martin Luther King Jr., and other cases of national importance.
For example, Freedom Magazine used the act to obtain documents about chemical and biological warfare testing conducted by the U.S. Army and the CIA, and directed against unwitting travelers in the Washington, D.C., area and perhaps in New York, Chicago, San Francisco and other cities as well.
Organizations like the ACLU, the Church of Scientology, the National Security Archive, the Society of Professional Journalists, and Ralph Nader’s Public Citizen have endeavored to shine more light on government. They — and others — have issued publications on how to use the FOIA, have litigated in the courts, and have testified before numerous congressional hearings calling for greater openness.
During the Reagan/Bush years, unfortunately, the pro-secrecy faction gained an upper hand. The Reagan administration did away with the FOIA policy of the Ford and Carter administrations, which advocated disclosure of as much information to the public as possible. Gone were the days when FOIA request processers were required to justify withholding information — in the Reagan/Bush era they had to justify releasing information.
The darkest day may have come when President Reagan signed Executive Order 12356 on security classification. This much-criticized order did away with the declassification timetable for government documents and established broad security classification authority, including the power to classify documents after the receipt of a FOIA request.
On October 4, 1993, however, President Bill Clinton and Attorney General Janet Reno issued policy memos directing all agencies to release as much information as possible in response to FOIA requests. Under this policy, the Department of Justice would defend agencies in FOIA litigation only if the agency could show that release of the information would cause harm to the government, even if that information could technically be withheld under the law.
While this failed to solve all problems with the processing of FOIA requests, it was certainly a step in the right direction. Experts on the subject hailed the change but warned that an ingrained attitude of secrecy and plain old bureaucratic inertia will tend to keep the old standards in place for some time.
Things today are a little bit better than they were before the policy change, but we have by no means returned to the processing standards of the Ford and Carter administrations. Changes in FOIA policy do not automatically lead to changes in the results of the processing of FOIA requests. It is too often a question of attitude within the agencies and changing those attitudes in actual practice requires close supervision and monitoring of FOIA operations by presidential appointees.
On the other hand, effective change will result when it truly reflects the attitude of senior agency officials. For example, without the personal involvement of Secretary Hazel O’Leary, the Department of Energy would almost certainly not have released voluminous documents on secret radiation tests on hundreds of innocent victims.
As the third decade of the Freedom of Information Act draws to a close, many instances have shown it is in the best interests of all Americans that we seek and obtain more and more information about the workings of our government.
Mr. Shea is former director of the U.S. Justice Department’s Office of Privacy and Information Appeals during the administrations of Presidents Ford and Carter.
Final
Confusion and Consequences
A growing number in the private sector have awakened to the need for reforms.
The Center on Speech, Equality and Harm, which operates a site on free speech on the World Wide Web, feels that the concept of “free speech” has been sorely abused, pointing to how laws regulate many categories of expression to prevent harm or to encourage equality. These include speech used to form a criminal conspiracy or to defame or libel, violate a trademark or copyright, or defraud a consumer.
Laura Lederer, Executive Director of the Center, told Freedom, “The issue is, does the speech harm and if it does, what can be done about it?”
She also rejected the idea of an Internet free of the regulations which apply to everyday life. “If the Net is being used for illegal activities, people need to cooperate with the government to eradicate that,” Lederer said. “They’re playing directly into this illegality when they say it should be completely free.”
John Powell, law professor at the University of Minnesota and former legal director of the American Civil Liberties Union, agrees. “There’s a lot of confusion. You can use speech for violence. You can use speech to deny someone freedom of expression,” he told Freedom.
On the Internet, this expresses itself in such concepts as “no one is responsible” and “nobody really owns anything,” which deny accountability for the basic tenets of property ownership and wind up costing American consumers billions each year
Internet and computer crimes are all over the newspapers and airwaves—except for those crimes committed in the name of “free speech.” No matter how spurious the claim, some reporters and editors buy the rationale—because it fits their own needs and motives.
Unscrupulous media outlets contribute to the problem of subversion of intellectual property when it comes to trade secrets—which the Uniform Trade Secrets Act defines as “information, including a formula, pattern, compilation, program, device, method, technique or process, that: (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
When was the last time the formula for Coca-Cola ran in the morning paper? If it ever were published, the legal thunderclap from a company as powerful as Coca-Cola would be deafening. The right to maintain such secrets is guaranteed under Article I of the Constitution and has been upheld in courts throughout the country.
Yet it seems to be open season on trade secrets, copyrights and other proprietary information, which seem to become “fair game” in the media world when it suits the needs of some editors and reporters.
The defense? “Freedom of speech.”
Putting the matter in the context of a secular creation further clarifies the issue:
An individual steals from a songwriter the lyrics to an unpublished song and sends them out on the Internet. When the law catches up to the thief, he defends himself by claiming it is all a case of free speech. The songwriter, in other words, is attempting to “silence” the thief’s First Amendment rights. In reality, the songwriter is seeking to protect his creative work and safeguard his right to determine when and how and to whom it will be distributed.
Courts who fail to act in such cases are making authors, composers, lyricists and directors “fair game” to piracy and rip-offs.
“As much as I approve all advances in technology,” said Ernest Lehman, former President of the Writers Guild of America-West, “I’m scared stiff that very soon anything that is written and anything that is filmed could just be stolen anywhere in the world.”
Lehman, whose screenwriting credits include “The Sound of Music,” “West Side Story,” and “North by North West,” said that “unless there is a change in this trend, whole films could be pirated and put on the Internet without any legal recourse for the owner.”
Solutions—Not “Explanations”
Even such empty philosophical inanities as “nobody really owns anything,” and “information wants to be free” breed confusion on the information superhighway. As Winn Schwartau puts it, “The ‘information wants to be free,’ cliche makes a great sound byte, but it really means nothing. Information has no persona. And lots of information can—and does—belong to people.” Free speech is not threatened by copyright law, and neither is the Internet. On the contrary, free speech is threatened by “free theft.” Free speech is abused when it is claimed as a shield to avoid responsibility for unlawful acts.
The solution is to raise ethical standards through peer pressure from those who live and work in cyberspace. The Church of Scientology contributes to this in numerous ways, including sponsoring the Task Force for Responsibility and Freedom on the Internet, and taking part in the recent roundtable entitled “The Internet and Property Rights” which it helped organize. The Task Force broadly distributes a “Netsurfer’s Simple Guide to Copyright.”
“If the Internet is to flourish,” said Mark Rost, head of the Silicon Valley chapter of the Task Force, “the creators of the information on our information superhighway must be protected. Intellectual property rights must be respected. If First Amendment rights are used as a justification for violating property rights, the next step will be the loss of some or all of these rights, as government bodies move in.”