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Are You A Criminal? 12 Cyber Law Questions Answered

Quinn Norton — Thu, 18 Mar 2010 10:54:19 -0500

Before you find yourself being grilled by the Computing Crimes Unit, know where your activities fall on the scale of digital rights and wrongs

Make no mistake, we are living in the future. In a matter of moments, we can publish our thoughts, communicate with people on other continents, or start downloading more information than we can ever consume. We are presented with hundreds of great offers every day—each with a thousand caveats. We hear about hackers stealing identities and kids being sued for copyright infringement, and even a New York socialite slap-fight taking place in an anonymous forum can take the national stage. The future is odd, indeed. To help you get some of it straight, we sat down with various lawyers and asked: How do our rights work in the digital age? Can you get in trouble posting messages about someone online? Are there exceptions to copyright? Is it legal to back up your ebooks? Not all of these questions have clear answers, and some answers don’t make much sense. We might be living in the future, but the legal system was designed to deal with the increasingly obsolete present.

Can I be sued for anonymously posting on the Internet that someone is a 'ho'?

Anyone can sue you for anything, anytime, provided they file the paperwork and pay a fee. Whether they have a case is a completely different matter. “Falsely accusing someone of being a prostitute may be defamation, but, depending on the context, a court might read the statement as mere hyperbole, not an actual accusation that [the person] exchanges sexual favors for money,” says Kurt Opsahl, senior staff attorney at the Electronic Frontier Foundation. (DISCLOSURE: Quinn Norton does paid photography for the EFF occasionally.)

The intention of the writer matters. “For example,” says Opsahl, “It was not defamation for ESPN to caption a photo ‘Evel Knievel proves you’re never too old to be a pimp,’ since it was—in context—not intended as a criminal accusation, nor was it reasonably susceptible to such a literal interpretation.” (Besides, with Knievel, it’s so clearly true.)

Even if the plaintiff doesn’t know your identity, you can be sued as a John or Jane Doe, or they can use the pretense of the lawsuit to get access to records that will identify you, as was the case with the New York–based model who subpoenaed records from Google to find out which socialite blogger was dissing her. She dropped the case as soon as she found out who had called her a skank. This is yet another reason to use the anonymous Tor web browser when you’re sophomorically taunting D-list celebrities.

Is there any circumstance that allows for legal downloading of copyrighted material through torrents or P2P?

Definitely, but we’ve got to make a few things clear. First off, copyright is automatic and pervasive. “All creative content is automatically copyrighted as soon as it is created—if you scribble on a napkin, that’s copyrighted,” explains Nicholas Reville, cofounder and executive director of the Participatory Culture Foundation.

To “un-copyright” something, the copyright has to expire or be waived, as the U.S. government has done on all content it produces. To legally download something copyrighted—be it over P2P, BitTorrent, or even off an FTP site—you’ll need permission. That second point, authorization, is where the P2P legal action comes from.

“Content that people put online for free download—for example, anything on Legaltorrents.com—is perfectly legal to download and is also copyrighted. The key question is whether the copyright holder has authorized the content to be posted or downloaded,” says Reville.

Is it legal for software that I buy to expire?

Probably, but the vendor has to tell you that up front. What software companies sell you isn’t the stuff they’ve made; they sell you a specialized contract called a license that lets you use the stuff they’ve made. That license, generally printed on the plastic the software is wrapped in (hence, “shrink-wrap license”) or on a webpage in a very small font with an “I agree” button at the bottom, actually tells you what you just bought. “What you see in the fine print is what you get,” says Wendy Seltzer, a fellow with the Berkman Center for Internet & Society at Harvard Law School. “Under a license, you might be denied the right to transfer or reverse engineer the software, or the amount of time you may use the software could be limited. Some courts have been saying, however, that if it looks like a sale, it should be treated as a sale, in rulings that limit the effect of some of these unexpected provisions.”

While selling you just about any kind of license is legal, vendors have to be clear about what they’re selling. If it says that it’s reliable forever on the box, and in the small print it says it may knock out your power grid, sour your fruit, shave your cat, and stop working after a week, you probably have a case. “If you’ve been misled about what’s in the package, the Federal Trade Commission might like to hear about unfair or deceptive trade practices,” says Seltzer. “If the box or download page doesn’t clearly say ‘time-limited,’ yet the software goes poof in the middle of a critical project, you’d have a good argument that you didn’t get what you paid for.”

The moral of the story is that when it really counts, always read the fine print.

We can 'format-shift' music by ripping CDs; what about movies or books?

Copyright allows you to make a backup of anything you’ve legally acquired for your own use. If you want to scan your books and back up your software or movies for your own personal use, have at it. But (there’s always a but, right?) the Digital Millennium Copyright Act (DMCA) makes it illegal to get at the things you’re trying to back up if they are copy-protected. “If the media is restricted by DRM... the DMCA forbids ‘circumventing’ the DRM, even for media you own,” says Fred Von Lohman, the EFF’s senior intellectual property attorney. So, while the backup itself is a fair use, making it is breaking the law. “The MPAA has argued consistently that ripping a DVD you own for use on an iPod is always illegal,” reminds Von Lohman. It’s the perfect catch-22 that let former MPAA president Jack Valenti tell consumers, “If you want a backup copy, you buy another one.”

Of course, it’s worth noting that as long as your backups remain in your possession and aren’t distributed, there is little likelihood of you ever getting caught.

Is downloading TV shows off BitTorrent illegal? After all, I can have recorded versions of TV content via TiVo.

This issue haunts the space somewhere between “it depends” and “no one knows.” You have to have permission from the copyright holder, except when it’s a fair use. Owning a TiVo gives you permission (for the stuff on the TiVo). The Pirate Bay can’t give you permission—but even so, it depends how you use it. “Where time-shifting is concerned, the most relevant exception will be fair use. If you are a student and need a 30-second clip for a class assignment, that’s likely a fair use. On the other hand, if you download the latest episode of Weeds simply because you don’t want to pay for Showtime, that’s probably not a fair use,” says Von Lohman.

TiVo has negotiated contracts for you, and the court has cleared using a VCR to tape something for later. But P2P is still in legal limbo.

“What about downloading a TV show that you would otherwise have been entitled to TiVo, but the power was out and it’s not on Hulu? I think that’s probably a fair use, but it’s hard to know without a court getting involved,” says Von Lohman. It might even depend on what protocol you’re using, since using BitTorrent makes you a distributor as you download, and you probably don’t have the right to distribute, even if you can argue the right to download.

Also, is that really what you should be using your UPS for?

Is it legal to download Girl Talk, Bootie, and other mashup music, or to host them for download?

Thus far, the answer seems to be that it depends on the musical taste of the judge, which is really no way to run a legal system. The legal question is: Does the remix so transform the music that the mashup itself counts as a whole new form of expression? “At the Organization for Transformative Works, we take the position that remixes, distributed noncommercially, are generally fair use because they represent new creative works that add to the variety of expression available and don’t generally interfere with the market for the originals. That said, not all copyright owners agree,” says Rebecca Tushnet, professor at Georgetown Law and a legal advisor for OTW. It’s even hazier for commercial works, which are OK in some circuit courts and not others—a recipe for getting the Supreme Court involved.

“It would be great to have a bright-line rule, but there simply isn’t one. Larry Lessig has suggested that we should reform the law to make clear that noncommercial remix is legal,” says Tushnet. Then it would be nice to reform the law to make the status of commercial remix clear, as well.

Downloading isn’t legally different from hosting files, but generally, copyright holders send cease and desist letters to the host rather than the downloaders. Since EMI gave itself a public relations black eye by going after DJ Danger Mouse’s The Grey Album in 2004, not many rights holders have pursued the mashup world, preferring to focus on more straightforward piracy.

Next up, what about open wi-fi?

If I bring my work home and my own PC is hacked with my work stuff on it, am I liable?

If you’re following your employer’s rules, you’re OK. “So far, no one has been held liable for someone else’s hacking in the absence of any specific statutory or contractual responsibility to keep the information safe,” says Jennifer Grannick, civil liberties director of the EFF. That bit about “statutory or contractual responsibility” is important, though. If you’re a government employee or contractor, there are certain types of work you either can’t take home or can’t expose to the Internet, like Social Security information. You may have sensitive information from your private employer that’s not supposed to leave the building, as well. It should be a no-brainer that you don’t take that kind of stuff and put it on a home PC connected to the Internet, or leave it on a laptop in the car while you eat lunch, but people keep doing it—and their Data Valdezes keep ending up in the news.

Think before taking work home, or better yet, leave work at work. Your Blood Elf Warlock won’t level himself!

Am I liable if I share my Wi-Fi, or leave it open, and someone else breaks a law from my IP?

The law is all about intention. “People aren’t held liable for the bad actions of others, unless they have a duty to prevent the harm, or they conspire, solicit, aid, or abet the wrong-doer,” says Grannick. If you aren’t nudging and winking at the lawbreaker, and if you had no idea it happened, you haven’t broken the law. But we don’t have court-appointed mind readers yet, and it’s not impossible to find yourself pressed to prove you weren’t knowledgeable of or complicit in a crime committed from your Wi-Fi. “Merely having open Wi-Fi should not cause you any liability, but it does leave open the possibility that law enforcement investigating a crime will think you are the culprit and act accordingly.” Even though you are likely to clear your name, it might be a headache to get there. If someone breaks your WEP key, you could find yourself in the same position anyway—fortunately, both situations are more rare than getting struck by lightning.

Is it legal for my ISP to advertise unlimited Internet, then throttle my usage?

Like buying, ahem, rather licensing, time-bomb software, “the answer would depend on the small-print terms of service,” says Art Brodsky of the nonprofit Public Knowledge. “ISPs often cover themselves with the details.”

But Kevin Bankston, senior EFF attorney in free speech and privacy law, says, “Depending on the facts, such advertising may rise to the level of deception, in which case it may violate state laws prohibiting unfair and deceptive business practices, as well as the Federal Trade Commission Act, which (among other things) prohibits false advertising.” They’d have to make that asterisk on the word “UNLIMITED!” very small to be liable, and the best protection is still reading the annoying fine print in the first place.

If I bring my personal laptop to work, does my employer have the right to search that computer?

The net may be complex, but legally speaking, personal property is pretty well understood. Both taking your property and searching it are issues the law is quite clear about. Your employer can potentially get into all kinds of trouble, both criminal and civil, if you haven’t given your permission for the taking, much less the searching, of your property. If any damage is done to your property in the process, you can sue your employer under various tort laws, with names like “tort of conversion” and “trespass to chattels,” not to mention the crime of theft. Plus, there’s “potential... liability under federal and state laws criminalizing unauthorized access to a computer system,” says Kevin Bankston. “Depending on how invasive the search is and what kind of personal data is stored on the computer, such a search may also constitute an invasion of privacy under state law,” Bankston adds. Of course, you can sign all those rights away with your employment contract. It’s all there, in the really tiny print.

Can my company legally install a keylogger or track everything I do?

We don’t know, and it’s not because we didn’t do our homework. “The federal courts are currently split on whether secretly installing a keylogger violates federal wiretapping laws,” says Bankston. What that means, in a practical sense, is that there either is no law, or existing law hasn’t been interpreted such that the matter is settled.

There’s a lot of law like this in every field—it’s just unknown until the courts take it up and argue over it for a few years. But the Internet is new enough and strange enough that places where it touches (like copyright and privacy) are in real legal turmoil. And if that weren’t enough, these debates get to be hashed out on the state level in every single state, as well.

“One district court in New Jersey has found that it is a wiretapping violation if the keylogging occurs while the computer is connected to the Internet, while another district court in California has found that it is not a wiretapping violation at all, although it did so in part based on the reasoning in another wiretapping decision from the Sixth Circuit that was later vacated,” says Bankston. Meaning that the precedent for that decision fell apart, leaving it on precarious grounds. None of that even gets into the possible privacy claims, which could be harsh and would vary between states.

There is one way your company could surveil you without any trouble, though: with your permission. “A conscientious employer with good legal counsel would likely seek to notify and obtain consent from an employee before installing a keylogger,” says Bankston. Making that a condition of your employment? Perfectly legal as soon as you sign on the dotted line.

When All Is Said and Done...

It’s an interesting time to be a lawyer (if a stressful time to be a PC user) with the legal eight-ball so often coming up “Answer hazy, try again later.” Don’t expect the situation to settle down anytime soon. The law moves notoriously slowly and the net hasn’t shown any signs of waiting for the law to catch up. Now more than ever, it’s important to read the fine print, but often we deal with impossible amounts of fine print. Try to know what you’re buying, renting, licensing, and so on, and be aware that even well-known brands often bait-and-switch their services.

The good news is that this legal incoherence has turned so many of us into scofflaws that getting caught is like winning the reverse lottery—unpleasant, to be sure, but also unlikely. Wait, that’s the good news? Let’s try that again: The good news is that we have so many more ways to express ourselves, be creative, and connect to each other that the law is floundering trying to understand it, and we’re making a new world while it flounders. So happy netting, people of the future!

Quinn Norton has written about the intersection of technology and law for Wired, The Guardian, FAIR, The Irish Times, and more. She knows too many lawyers, and has been known to get them drunk, hang out at their parties, and DM their D&D sessions. Quinn is reachable at quinn@quinnnorton.com.

Latest Battlefield Bad Company 2 Patch Boots SecuROM from Steam Version

Nathan Grayson — Wed, 17 Mar 2010 00:57:39 -0500

We never thought we’d declare DRM the least of a game’s problems, but even though Battlefield Bad Company 2 has 99 problems, at least SecuROM DRM ain’t one.

In addition to squashing a number of bugs and shining up the game’s UI, a recent patch stripped Battlefield Bad Company 2’s Steam version of its – most would say – unneeded SecuROM DRM. After all, Steam’s a big PC gaming platform now. It can take care of piracy protection itself.

Sadly, if you didn’t acquire your copy of the game from Valve’s storefront, consider yourself stuck in the bad company of SecuROM for the time being. But hey, here’s this nice list of changes and upgrades to take your mind off that depressing reality. Better than nothing, we suppose.

No BS Podcast #133: Shredding Gnar, Brah

The Maximum PC Staff — Tue, 16 Mar 2010 12:59:59 -0500

Seven more of your Earth-days have passed, which means it's time for another No BS Podcast. This time, the gang talks about Intel's 6-core Gulftown processor, Steam for Macs, and Ubi's new DRM. The Star Destroyer vs Enterprise font springs eternal, as we take a number of your calls about this pressing issue. Finally, Gordon tells us all what he thinks about the new A-Team, and why it's not alright to say "brah."

Do you have a tech question? A comment? A tale of technological triumph? Just need to get something off your chest? A secret to share? Email us at maximumpcpodcast@gmail.com or call our 24-hour No BS Podcast hotline at 877.404.1337 x1337--operators are standing by.

Subscribe: http://feeds.feedburner.com/maximumpc/1337

It Just Keeps Getting Better: Ubisoft DRM Troubles Caused by “Server Attack”

Nathan Grayson — Mon, 08 Mar 2010 21:58:00 -0600

Earlier, we brought you word that Ubisoft’s much-maligned DRM servers were on the fritz. “But why?” you probably wondered before continuing to stay far, far away from them. Well, what goes around comes around, it would seem, because Ubisoft’s declared that its servers are under “attack.” PC gamers who are both tech-savvy and prone to semi-militant protest? Who’da thunk it?

“Ubisoft would like to apologize to anyone who could not play AC2 or SH5 yesterday. Servers were attacked and while the servers did not go down, service was limited from 2:30PM to 9PM Paris time. 95% of players were not affected, but a small group of players attempting to open a game session did receive denial of service errors. All players with an open session during the attack were not affected,” said the publisher.

But it gets better. You see, a scant few hours later, the servers came under fire again.

“Our servers are under attack again,” tweeted a Ubisoft rep. “Some gamers are experiencing trouble signing in. We’re working on it and will keep you posted.”

Ubisoft, as much morbid glee as we’re deriving from this twisting train wreck, we think you might want to consider slamming on the breaks before your credibility ends up on the list of casualties. We accept sincere apologies, you know. Actually, we’re surprisingly open to anything when there’s no DRM involved. Ok, not those kinds of things. Oh, wait, you mean those kinds of things and not those kinds of things? Well then, that changes everything!

Ubisoft DRM Authentication Servers Fail In Europe

Justin Kerr — Sun, 07 Mar 2010 17:05:01 -0600

The Ubisoft DRM situation has been covered to death, but it's like a train wreck we just can't seem to look away from. The latest news comes out of Europe and is reporting that the DRM authentication servers have been down all day, and have yet to return.

"I don't have any clear information on what the issue is ... but clearly the extended downtime and lengthy login issues are unacceptable, particularly as I've been told these servers are constantly monitored," said 'Ubi.Vigil', adding, "I'll do what I can to get more information on what the issue is here first thing tomorrow and push for a resolution and assurance this won't happen in the future."

North American customers don't seem to be affected by the outage, but it clearly validates all the negative press and comments this DRM approach has been generating across the Internet. PC Gamers across the globe are united for the first time in history, too bad it wasn't under better circumstances.

Ubisoft’s Uncrackable DRM Lasted a Mere 24 Hours

Justin Kerr — Sat, 06 Mar 2010 16:23:23 -0600

We've tossed around some pretty harsh criticisms of Ubisoft's new PC DRM approach, and it's very much deserved. Piracy is a tricky issue to combat, we get it, but we also know that no amount of DRM will ever stop the dedicated few kleptomaniacs who for one reason or another, simply refuse to pay for software. The only truth when it comes to copy protection is that the stronger it is, the more honest customers you will accidentally burn with it. This isn't anything we haven't said before, but it's ironic how all of our predictions seem to be coming true.

According to ZDnet a version of Assassin's Creed 2 sans DRM has appeared on Bit Torrents, and the date confirms it took a mere 24 hours to defuse Ubisoft's DRM of mass destruction. If this version works as advertised, it would leave the gimped version in the hands of paying customers who will needlessly be forced to suffer through another failed attempt at heavy handed copy protection. Its hard to gauge if all the bad press is having any impact on Assassin's Creed II's sales, but a quick peek at the Steam player stats ranks the game in 29th place, just below the original Day of Defeat (a game released 7 years ago).

The best way to vote against this type of behavior is with your wallet, not your Bit Torrent client, but perhaps the evolving reality of the situation will force Ubisoft to take action and release a patch for its loyal patrons.

Things You Should Boycott: Assassin’s Creed II and Its Horrendously Restrictive DRM

Nathan Grayson — Thu, 18 Feb 2010 01:22:44 -0600

We love Assassin’s Creed II. It’s a fantastic game that actually lives up to all the promise its predecessor fell just short of.

Its DRM, however, manages to undo all that good will and then some.

We weren’t entirely sold on Ubisoft’s new “anti-piracy plan” when the publisher ran it by us last month, but little did we know that we were witnessing the birth of DRM so sinister that we’re now petitioning to have the guy that created SecuROM canonized.

Here’s how it works (as discovered by the fine folks at PC Gamer UK): as you’re already aware, the DRM requires an Internet connection to authenticate your game. As you weren’t already aware, it requires that Internet connection at all times. Constantly. The second you lose that connection for whatever reason, even for a second – be it a faulty wireless signal, a clumsy roommate, or a fried server on Ubisoft’s end – your game goes dark, you lose all unsaved progress, and you’re locked out of the game until you resolve your connection issue.

We’re reminded, at this point, of an old Internet saying: DO NOT WANT.

Ubisoft’s also afflicting the DRM upon Settlers 7. We weren’t actually planning on purchasing Settlers 7 in the first place, and – shockingly enough – this hasn’t done anything to change our minds.

Is this a joke, Ubisoft? Because we’re not seeing the punchline. That is, unless you burst out laughing every time hundreds of thousands of pirates cause you to lose millions of dollars.

Apple to Use FairPlay DRM in iBookstore

Ryan Whitwam — Mon, 15 Feb 2010 18:24:53 -0600

Many people had a bit of hope after the iPad announcement that Apple would take an enlightened view of copy protection on the platform’s iBookstore. The device will support the open EPUB format, but now we’re hearing that the store will utilize Apple’s FairPlay digital rights management solution. This system was used mainly on music in the past, but now is relegated to other iTunes content.

Many publishers are expected to employ the DRM on their ebooks, but some more enlightened publishers may opt out. Apple hasn’t had much to say on the matter just yet. We might not be surprised by this, but we certainly hoped Apple would take a stand here. Apple did manage to talk music labels into dropping DRM, so why go this route with books? It could be that Apple is willing to appease publishers in order to get a chunk of the market even if it means going down the same road they did with music.

So, in a few years will we see Steve Jobs write an open letter about his “thoughts on books”? How does this sit with you? Should Apple be pushing for a DRM free books store? Do you feel differently about DRM on books than you do about DRM on music or movies?