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From: mnemonic@walt.cc.utexas.edu (Mike Godwin)
Newsgroups: comp.org.eff.news
Subject: Re: Musings on constitutionality - Result of Neidorf charges
Message-ID: <20814@well.sf.ca.us>
Date: 17 Sep 90 18:39:16 GMT
References: <16013@s.ms.uky.edu> <4628@graphite18.UUCP>
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Reply-To: mnemonic@walt.cc.utexas.edu (Mike Godwin)
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In article <4628@graphite18.UUCP> mellman@motcid.UUCP (Tom Mellman) writes:
 
>This is all so scary to me.  I understand that Neidorf wanted to
>get off any way he could, but it's frightening that the defense
>he had to use was only that the material was already in the public
>domain.
 
I understand your concern, and I agree with you that the real legal
issues weren't addressed. On the other hand, Neidorf was an unwilling
test case, and federal prosecutions are so traumatic that it would have
been foolhardy to pass up such a clear win.

Moreover, the conclusion of this case alerted at least one prosecutor
(and, one hopes, a larger segment of the law-enforcement community)
to the willingness of some corporate entities to participate in 
inflating the seriousness of some instances of computer intrusion in
order to establish federal jurisdiction. This is clearly what Bell
South did.

So, it's possible the case has significance beyond its particular
facts.

Like you, I would like to have seen the property issues addressed
properly as well as the Constitutional ones. But to judge from 
Judge Bua's denial of Neidorf's motion to dismiss, it seems unlikely
that Bua was open to the argument that the copied text file was
not, per se, the proof and the "res" of a property crime. 

I think such an argument can be made, and it doesn't have to be
based on the (radical, these days) notion that information is
not property. Instead, one can make an argument that falls 
squarely within traditional property law--namely, that Neidorf
did not deprive Bell South of the *exclusive use* of their 
"proprietary information." How do we know this? *Because nobody
could conceivably USE that file for anything* -- except, possibly,
for publication purposes, which are protected.

I note here that the property-crime aspects of this case are
entirely distinct from the Constitutional issues, and that this
argument would apply even if Neidorf hadn't been interested in 
the file *as a publisher*.

>I mean, at the very basis of this is issue is the definition of
>stolen property.  How can you steal something from someone if you
>don't deprive him of it?

You're likely to get some critical comments in response to that
question, since in fact our legal system has long held that one
can be convicted of "theft" after having taken *copies* of 
important information. But that branch of theft law is predicated
on depriving the owner of *exclusive* use of the information. Thus,
if I acquire a copy of proprietary information that I can't use
(and--very important--I'm not planning on giving that information 
to somebody who CAN use it), I haven't deprived anybody of the 
exclusive use of any of the information in question.

The 20th century has seen a great expansion of property-crime 
scope; I'd like to see some limits to it, and this might have been
a good case for that.

>Of course, at this point people always say that the victim has
>been deprived of profits.  But he wasn't deprived of the item
>supposedly stolen.

Presumably, if I copy information that you could have sold me,
I've deprived you at least of the profits that you'd have made
on that particular sale.

>  This is an issue of copyright, not theft.
>And am I wrong in my understanding that copyright is a civil
>offense, not a criminal offense?

You're wrong. Copyright violations carry both civil and criminal
penalties, as those of you who read the notice at the beginning 
of commercial videos already know.



--Mike



Mike Godwin, UT Law School  |"If the doors of perception were cleansed
mnemonic@ccwf.cc.utexas.edu | every thing would appear to man as it is,
(512) 346-4190              | infinite."
                            |                 --Blake