Wired’s Kevin Poulsen has a great story whose title tells it all: Use a Software Bug to Win Video Poker? That’s a Federal Hacking Case. Two alleged video-poker cheats, John Kane and Andre Nestor, are being prosecuted under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Theirs is a hard case, and it is hard in a way that illustrates why all CFAA cases are hard.

Continued . . .

In particular, it appears that the metadata and search interface to the database of putative orphans are both atrocious. Spraggs’s post details more than a dozen books by foreign authors that are not plausibly orphan works, but were or are in the database nonetheless. This, it will be recalled, was a significant problem with HathiTrust’s abortive Orphan Works Project. Every time an orphan works trial flunks its basic due diligence, it undercuts the case for orphan works reform; just as the criminal antics of Righthaven and Prenda Law undercut the case for copyright enforcement against individual downloaders.

Of course, not everything that wealthy New Yorkers spend money on is cheaper here. Housing, after all, is absurdly expensive, even for the rich. Complex zoning regulations and limited land make it all but impossible for supply to grow alongside demand. … What’s happening in New York is just part of a national shift. Highly paid, college-educated people are increasingly clustering in the college-graduate-dense, high-amenity cities where they get good deals on the stuff they like, while low-skilled people are increasingly flowing out to cheaper places with a worse quality of life.

Why, it’s almost as though cities are engaged in … exclusionary zoning.

Nah, couldn’t be. Everyone knows exclusionary zoning is a suburban phenomenon.

The problem has long entertained lawyers, particularly those in whom a speculative turn of mind is allied with some proficiency in mathematics. Several exceedingly complex all-purpose theoretical solutions have been proposed. These have been ignored by the courts. A judge who finds himself face to face with a circular priority system typically reacts in the manner of a bull who has been goaded by the picadors: he paws the ground and roars with rage. The spectator can only sympathize with judge and bull.

Grant Gilmore, Circular Priority Systems, 71 Yale L.J. 53 (1961)

But now I think I’ve got it: a theory of how we should think about search engines, and how the legal system should treat them. The goal of search engines, and the goal of search engine law, are to help users find what they’re looking for. Search engines are advisors; law should ensure that users have access to search engines and that those search engines are loyal to users. Search results are opinions about what users will find relevant. Those search results can be actionable when they are given in bad faith, that is, when they don’t reflect the search engine’s actual opinions about relevance. The Federal Trade Commission was probably right to drop its search-bias charges against Google, but should have insisted on greater transparency going forward.

This is, I daresay, a radically moderate take on Google. I reject Google’s story of search, on which search results are purely subjective and not susceptible to legal oversight, and the possibility of competition from other search engines suffices to keep it in check. But I also reject the story told by Google’s numerous enemies, on which the government can and should bring search results with an objective standard of fairness and neutrality. There is a middle ground between the two; indeed, it follows naturally from putting search users at the center of the story.

Here’s the abstract:

Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.

A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized information goals by sorting through the unimaginable scale and chaos of the Internet. Search users are active listeners, afirmatively seeking out the speech they wish to receive. Search engine law can help them by ensuring two things: access to high-quality search engines, and loyalty from those search engines.

The advisor theory yields fresh insights into long-running disputes about Google. It suggests, for example, a new approach to deciding when Google should be liable for giving a website the “wrong” ranking. Users’ goals are too subjective for there to be an absolute standard of correct and incorrect rankings; different search engines necessarily assess relevance differently. But users are also entitled to complain when a search engine deliberately misleads them about its own relevance assessments. The result is a sensible, workable compromise between the conduit and editor theories.

This is a draft. The article itself won’t be published until next year, which means I have plenty of time to revise and refine the arguments. I would greatly appreciate any comments or suggestions you might have.

The Copyright Act was drafted with two scenarios in mind: one, we could call the “transporter” or the “post office,” where someone takes a book that’s here and moves it over there, out of one person’s possession and into another’s. Copyright calls this a “distribution,” and the first sale defense applies to it. The total number of copies is unchanged: there was one before, and there’s one after.

The other offline scenario, which we can call the “replicator” or the “printing press,” takes an old copy of a book and makes a new copy in the same place. Copyright calls this a “reproduction,” and it’s not subject to first sale.The total number of copies increases: there was one before, and there are two after.

But online, a download is a bizarre hybrid of the two. There’s an old copy here on my computer, and once I send you the bits, there’s also a new copy there on your computer. The Internet therefore is something of a “transporticator” that creates a perfect replica of Kirk down on the planet, while also leaving the original Kirk free to roam the Enterprise.

It gets even weirder from there, including guest appearances by Derek Parfit and Evil Spock.

[I]t appears that the plaintiffs thereby covenanted, among other things, to build a chocolate mill, in a place agreed upon, of certain dimensions, and in a certain manner mentioned in the indenture: and did, in and by the same indenture, “grant, lease and demise the same chocolate mill, with the privileges and appurtenances thereto belonging,” to the defendants for the term of six years…

The defendants pleaded three several pleas in bar.

1. That the plaintiffs never built a chocolate mill in the place, &c. according to the form and effect of the said indenture. …

3. That after the commencement of the lease, and before any of the rent for which this action is brought accrued or was in arrear, the said chocolate mill was, against the will and without the default of the defendants, burned and consumed by fire … .

• The brief starts by comparing Google’s mass digitization of books to “an exercise in eminent domain.” The metaphor is confused, perhaps deliberately so. Eminent domain involves the government taking ownership of property. Google’s digitization, even if it is an unauthorized and infringing use of the plaintiffs’ copyrights, does not affect their ownership. If any of the plaintiffs’ attorneys need a refresher, I would be happy to welcome them to my first-year Property class when we cover eminent domain later this semester. (UPDATE: On further reflection, I think the metaphor works, but in a different respect. Google and the libraries are assembling a large number of smaller individual holdings into a larger parcel that they believe will be more valuable and better serve the public interest. The mechanism and effect on property rights are different, but this does resemble one typical use of eminent domain. So my initial snark was un-called-for.)

• The brief makes much of the defendants’ sovereign immunity to lawsuits for damages. In theory, it is an irrelevant point, as this is a lawsuit for declaratory and injunctive relief, not damages. But I think the plaintiffs were right to emphasize the unavailability of damages. For one thing, sovereign immunity under the Eleventh Amendment is a bit of a crock; the states use it to engage in all kinds of skulduggery. For another, sovereign immunity gives the plaintiffs’ ripeness arguments a particular sharpness: since compensation ex post isn’t available, the court might be more concerned to reach the legal issues and define the parties’ respective rights ex ante.

• The brief does an effective job portraying HathiTrust’s dancing around the Orphan Works Project as a whipsaw. The libraries announced the Orphan Works Project, then suspended it, and say that if they relaunch it, then and only then would it be ripe for adjudication. The brief points out that the libraries could also re-suspend the project if challenged a second time, perpetually evading review. In one sense, this isn’t a problem for copyright holders: if the project never actually launches, nothing has been lost. But the brief calls this “an expensive game of ‘Whac-a-Mole,’” in an effective turn of phrase that shows why it’s unfair to deny the authors their ruling on the Orphan Works Project as it was announced and almost implemented. If the libraries want to avoid that ruling, they really ought to be prepared to make a stronger commitment that the project will not come back in a similar form.

• The plaintiffs renew their security argument, saying:

  Each copy is connected to a “campus network,” and the primary and mirror HathiTrust sites include World Wide Web servers, compounding the risks of exposure. Furthermore, HathiTrust grants remote access to the complete image and text files to nearly one hundred HathiTrust administrators and researchers located throughout the country.

  They made a similar argument at the district court, and it’s spectacularly bad. If keeping documents on a network with remote users and publicly accessible servers is an inherent security risk, then Frankfurt Kurnit Klein and Selz is committing malpractice by keeping client information on its office computers. (See Rule 1.6(c) of the New York Rules of Professional Conduct.)

• To make their security argument, the plaintiffs rely on Ben Edelman’s expert declaration. He’s a smart guy who’s done important work on Web privacy and online marketing, but he’s not remotely qualified as a network security expert, nor does his report pass the Rule 702 standard that it be “based on sufficient facts or data.” Continued citation of the report on appeal is a classic sunk costs mistake: we spent a lot of money on this report, so we’d better cite it to get our money’s worth. (The same goes for Daniel Gervais’ report predicting that collective licensing spontaneously arises whenever there is the vital heat of a market need for it.)

• At the district court, the plaintiffs argued that fair use under section 107 was never available to go beyond section 108’s codified privileges for libraries. (They wrote, “Congress included these rules to carefully delineate the boundaries of fair use in the context of library copying.”) On appeal, that argument is gone, replaced by the weaker claim that exceeding section 108 “should weigh heavily against a finding of fair use.” That view depends on a reading of the history of section 108 that the defendants will of course dispute.

• The plaintiffs’ brief tries to disaggregate the different uses for the scans: even if searching is a fair use, there’s no need to retain numerous electronic copies of the full texts of the works. Judge Baer’s opinion anticipated this particular objection: “Not to mention that it would be a tremendous waste of resources to destroy the electronic copies once they had been made for search purposes, both from the perspective of the provision of access for print-disabled individuals and from the perspective of protecting fragile paper works from future deterioration.” The plaintiffs respond that they don’t want to destroy the digital files, “but rather to have them taken offline and stored under lock and key.”

• Judge Baer found both that the digital collection was transformative (factor one) and that it had no market impact (factor four). The plaintiffs challenge both findings. I find their argument on the first factor plausible — at the very least, the idea of “transformative” use has been pushed beyond what the word will bear if it is “transformative” to provide books to the print-disabled. Their argument on the fourth factor doesn’t do much for me: they continue to cling to the self-refuting argument that, “Each Unlicensed Digital Copy Represents a Lost Sale.” But there are numerous books in the collection that are not available for sale or license for the activities in suit, on any terms, at any price.

• In trying to distinguish the cases finding search engine indexes of webpages to be fair use, the brief argues,

  The Ninth Circuit cases cited by the District Court that address the legality of copying web pages for the purpose of creating a search index, Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) and Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003), are distinguishable because copyright owners who publish material on the Internet do so because they want their content to be found and viewed. For all intents and purposes, such owners have provided an implied license to search engines to copy and index their contents. Moreover, unlike HathiTrust’s perpetual storage of high resolution image files and text files of every book, the Web pages copied by a search engine are incidental to the search function. As noted by one court, after copying full size images onto its server for the purpose of creating “thumbnails,” the search engine deleted the original copy from its server. See Kelly, 336 F.3d at 815. Thus, even if ingesting a copyrighted work into a search engine is transformative, it does not follow that the permanent storage of the original content is also transformative.

  There are some subtle bits of misdirection in there. First, Perfect 10 wasn’t plausibly an implied license case, because there, Google was making a search index of infringing websites. Whatever authorization those websites gave Google was worthless: the case rose or fell on fair use, specifically the transformativeness of a search index. And as for deleting the files, the only reason that an Internet search engine can get away with deleting originals is that it regularly crawls the Web, so that it can get a fresh copy whenever needed. Digitizing a book, on the other hand, is not something you want to do every two weeks.

• The associational standing claim is a bit of a procedural backwater at this point, but the plaintiffs’ brief does an excellent job of explaining why it makes sense to let associations sue to vindicate their members’ rights. Its legal analysis here is clear, succinct, and persuasive.

• The brief also makes a clear — but oddly rushed — argument that the libraries do not qualify as “authorized entities” under section 121 of the Copyright Act for purposes of making accessible editions for the print-disabled. The section ends with the following:

  The Authors do not seek a remedy that would foreclose the print-disabled from gaining access to the digital library, but one that would require any access to be facilitated in accordance with the statutory scheme established by Congress.

  I expect the NFB to have some choice words about this particular argument in their response brief.

Overall, I found the brief well-written, but not compelling. The brief doesn’t particularly undermine the authority of Judge Baer’s opinion. I am adjusting upwards my estimate of the likelihood that the Second Circuit will affirm.

This is a process-oriented argument: it deliberately focuses on the legitimacy of the procedures used to install filters, rather than on the substance of what’s filtered and what isn’t. So I had the idea of critiquing the argument using the tools of the Legal Process school of jurisprudence, which tried to use process-oriented arguments to understand rigorously the roles of courts and legislatures in a democracy under the rule of law, and to develop a clearer understanding of when various procedural devices are appropriately employed. My title is a play on the bible of the Legal Process school, Hart and Sacks’ The Legal Process: Basic Problems in the Making and Application of Law.

My format is a play on Hart and Sacks, as well. The Legal Process is notable for its barrage of questions to the reader, questions which range from the subtle to the sublime. The Illegal Process consists of a long series of “Notes and Queries” on Bambauer’s article — over a hundred and fifty questions, in all. Some are pointed, some are cheeky, some are gently leading; all of them, I hope, help to bring out the implications of his argument and the challenges of trying to build legal bulwarks against would-be censors. Here’s a sample:

Professor Bambauer refers to his criteria as a “process-based methodology” and defends them as being “compatible with divergent views on what material should be banned.” How far can procedural criteria go in settling questions about censorship? Does it follow that because procedurally regular censorship is more legitimate than procedurally irregular censorship, it is legitimate in an absolute as well as a relative sense? Is this a question that can be settled in the abstract, without reference to the material to be censored? Is it right that whether Winston Smith shall be permitted to read The Theory and Practice of Oligarchical Computation should turn only on the process Comrade O’Brien follows and not on the contents of the book? But if it is necessary to make normative judgments about whether particular material can appropriately be censored, is it possible to say anything about global censorship that does not rest on contested moral and social values? Is Professor Bambauer’s theory an attempt to apply a quintessentially liberal methodology—procedural justice—to a quintessentially illiberal subject—censorship?

This is my fullest and strongest argument against the late Google Books settlement. In the course of studying it, I came to realize that it was only the most visible example of a new and deeply worrying trend in class-action law. I found half a dozen other settlements, from antitrust to real estate, that used the same dirty trick the Google Books settlement did: giving the defendant a release for the future that would allow it inflict in new and unprecedented harms on the members of the class suing it. This article is my attempt to make sure that no one ever tries such a thing again—and that if anyone does try, the courts are ready to stand guard against it. It’s a sustained (nearly 90 pages) explanation of how these releases work, why they’re deeply dangerous to class members, and why they’re fundamentally illegal. As I said at a conference, “The Google Books settlement is dead; I would like you to come with me to the graveyard with pitchforks and stakes.”

Here’s an example, to give a sense of the kinds of unearthly forces from the outer darkness the Google Books settlement was trying to summon. Imagine that in 2003, BP had had a minor oil spill from a well in the Gulf of Mexico: a few thousand barrels. Now imagine a class action supposedly on behalf of all the residents of the Gulf states, and imagine a “settlement” of that class action that released BP from all liability not just from this past spill, but from all future spills. If such a settlement had been in place at the time of the Deepwater Horizon explosion, Tony Hayward could have stayed on his yacht all spring and summer without lifting a finger to stop the spill.

The courts should not be in the business of handing out these unprecedented future-conduct releases in class actions. The article is a careful explanation of why. Here’s the abstract:

This Article identifies a new and previously unrecognized trend in class-action settlements: releases for the defendant’s future conduct. Such releases, which hold the defendant harmless for wrongs it will commit in the future, are unusually dangerous to class members and to the public. Even more than the “future claims” familiar to class-action scholars, future-conduct releases pose severe informational problems for class members and for courts. Worse, they create moral hazard for the defendant, give it concentrated power, and thrust courts into a prospective planning role they are ill-equipped to handle.

Courts should guard against the dangers of future-conduct releases with a standard and a rule. The standard is heightened scrutiny for all settlements containing such releases; the Article describes the warning signs courts must be alert to and the safeguards courts should insist on. The rule is parity of preclusion: a class-action settlement may release future-conduct claims if and only if they could have been lost in litigation. Parity of preclusion elegantly harmonizes a wide range of case law while directly addressing the normative problems with future- conduct releases. The Article concludes by applying its recommendations to seven actual future-conduct settlements, in each case yielding a better result or clearer explanation than the court was able to provide.

The district court’s opinion dealt with two extremely important fair use issues: is it still fair use to tape TV with a DVR rather than with a VCR, and is it fair use to analyze copyrighted works to extract uncopyrightable facts? That opinion is now on appeal, and I’ve joined an amicus brief explaining why the answer to both of these questions should be “yes.” The lead author was Berkeley’s Jason Schultz, with whom I worked at the EFF almost a decade ago. His writing is as punchy as ever; the brief is a good statement of what’s at stake in today’s fair use cases.

“Lasers are supposed to come out of your eyes.”

And from Mako, a story:

I remember Aaron confronting Peter Singer — intellectual founder of the modern animal rights movement — at the Boston Vegetarian Food Festival to ask if humans had a moral obligation to stop animals from killing each other. I lurked behind, embarrassed about the question but curious to hear the answer. (Singer sighed and said “yes — sort of” and complemented Aaron on the enormous Marxist commentary he was carrying.)

This paper explains the two things we should do about search. Some serious people think that search should help people who talk get their words to other people. Other serious people think that the people who offer search talk for themselves and we should leave these people alone. All of these serious people are wrong, because the most important thing about search is that search helps you find things. Not someone else. You, and also me and everyone. It’s good when we can find things because it means we can learn, which is even more important than helping the people who talk or the people who offer search.

There are so many things we could look at that we need help to sort through them. So the first thing we should do about search is that we should usually leave the people who offer search alone so they will keep on helping us find things. Not always, because maybe sometimes the people who offer search will lie to us about what things there are or where those things are. That’s bad because it makes it hard for us to find things. So the second thing we should do about search is not let the people who offer search lie to us like that.

It’s important to think carefully about what it means to say the people who offer search “lied.” Sometimes the thing you want to find and the thing I want to find aren’t the same. I’m not wrong and you’re not wrong. We just want to read different things. There has to be room for us not to agree on what things are best, which means there also has to be room for the people who offer search to guess at what you and I want when we search. So a search answer isn’t a lie just because the thing it suggests isn’t the thing someone else wanted it to suggest. It’s only when the people who offer search really believe you’re looking for something and decide to show you something else instead that it’s a lie. When they do that, it’s right to be angry at them and we should make them stop lying.

These two things we should do about search also give answers to other questions about search. One of them is whether the people who offer search should be able to tell you about things even when the people who own those things don’t want them to? Yes, because telling you about a thing isn’t the same as giving you the thing. No one owns the facts about where things are, even when someone owns those things. Search’s job is to help you find things, not to help the people who own the things. This is still being nice to the people who own things because once you find a thing, you can talk to the person who owns the thing and you can only take it from them if they let you buy it.

There will be much more soon, I promise.

(With help from the thing that helps make sure you really do say only the ten hundred most used words.)

To put this in perspective, I, too, am a bulk downloader. James has downloaded his thousands, and Aaron his ten thousands. And there but for the grace of the Assistant United States Attorneys (who wield god-like prosecutorial power), go I.

In law school, during my time at the Yale ISP, I wrote for and ran LawMeme, a blog about law and technology. (Here’s one of its greatest hits, Ernie Miller’s classic “Top Ten New Copyright Crimes”.) It was a Slashclone based on PHP-Nuke, and it ran from roughly 2001 to 2006 before succumbing to script kiddie penetration attacks, a lack of new content, and administrative neglect. The domain names expired, the content-management engine was hacked beyond repair, and the powers that be ultimately made the sensible decision to pull the plug and not to try reviving it.

But this meant losing an archive of about fifteen hundred posts. I had a strong personal attachment to some, like the post that would ultimately become Accidental Privacy Spills. Others, like my posts on the Search King lawsuit, were the first draft of history. Ernie’s posts on the copyright disputes of the early oughts were memorable, vivid pieces of writing that deserved to be saved.

So I took on the task of making a static archive of what could be salvaged from LawMeme. LawMeme itself had been dynamically generated: each page was assembled from various chunks of content thrown together by the server on the fly. The archive would consist simply of fixed, unchanging webpages. There’s no good index to them, but if you search for “LawMeme” and any of the topics we wrote about, you’ll see articles that look more or less as they did back in the site’s heyday.

But to create the archive, I couldn’t just go back to the long-defunct LawMeme site itself. Instead, I had to turn to the Internet Archive’s Wayback Machine, which keeps snapshots of webpages from over the years. But with well over a thousand posts to retrieve, I didn’t want to sit there copying by hand.

And so I became a bulk downloader. I wrote a Perl script: a simple, 70-line program that exhaustively went through the Wayback Machine, looking for a copy of each LawMeme article. Just like Aaron’s script, mine “discovered the URLs” of articles and then downloaded them. And just to show how mainstream this is, I’ll add that I built my script around an elementary one that Paul Ohm published in “Computer Programming and the Law: A New Research Agenda,” his manifesto for why more law professors should write code. Paul’s script downloaded and analyzed the comment counts on posts from the popular legal blog The Volokh Conspiracy.

I think this was completely legal. But in today’s environment of fear and prosecutorial intimidation, who can be sure? I own the copyright in my own posts, I had the permission of the ISP to create the archive, and the implied license that all of the contributors gave to LawMeme would almost certainly cover this backup. But almost certainly is not absolutely certainly. Maybe some AUSA wants to build a career taking down professors, putting me in the crosshairs.

Or take the Internet Archive’s terms of service. By using the site, I supposedly promised not “to copy offsite any part of the Collections without written permission.” The site’s FAQ qualifies this statement a bit, adding, “However, you may use the Internet Archive Wayback Machine to locate and access archived versions of a site to which you own the rights.” Again, I was confident that this covered me. But confidence is not certainty. I assumed that no one would care to press the question. After Aaron, is that such a safe assumption?

I can’t imagine that the Internet Archive would have a problem with what I did. Recreating lost websites for the sake of the public and posterity is completely consistent with Brewster Kahle’s expansive humanist vision of digital archiving. But JSTOR quickly made its peace with Aaron, and that didn’t save him. Would Brewster’s blessing save me from the wrath of the feds?

Indeed, my script waited a second between each download. I didn’t want to put too much of a load on the Archive’s servers. But a cyber-Javert could describe it as an attempt to evade detection. Then, to get the webpages to display right in the LawMeme archive, I wrote another script to delete the bits of HTML added by the Internet Archive to the pages in its archive. Was that an effort to hide my tracks?

Another one of Paul’s papers presciently predicted the way our computer misuse statutes were vindictively turned against Aaron. In The Myth of the Superuser, Paul describes how these laws are written to protect against a mythic bogeyman, the all-powerful demented superhacker, capable of breaking into and destroying any computer system, bent on sowing chaos and devastation online. But the laws are used to punish minor misdeeds by unthreatening defendants. Imagine Mr. McGregor training a howitzer on Peter Rabbit and you have the idea.

Aaron’s Law is a start, but the problems with our computer crime laws, and with criminal law in general, run much, much deeper. The Department of Justice thinks millions of parents who made Facebook accounts for their children are federal criminals. Read the majority opinion in United States v. Nosal and ask yourself whether you’ve fudged your age on a dating site, or let someone else use your account, or used a workplace computer to check the baseball scores. Judge Kozinski noted, skeptically, “The government assures us that, whatever the scope of the CFAA, it won’t prosecute minor violations.” Tell that to Aaron’s family.

I am Aaron Swartz-icus, and so are you.