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The Communications Decency Act portion of the new Telecommunications Act has been ruled clearly unconstitutional (the decision in A.C.L.U. v. Reno is available on the Internet at http://www.ciec.org/decision.html). This decision is now on appeal to the Supreme Court. Also this month, the Seventh Circuit reversed the earlier decision in ProCD v. Zeidenberg, holding that "shrink wrap" licenses are enforceable (this controversial decision is available at http://www.law.emory.edu/7circuit/june96/96-1139.html).
One additional incident that has not been the subject of much main-stream news (and thus is worth mentioning here) is much more entertaining-- unless you happen to be involved.
A software company, Custom Innovative Solutions (CIS) (located on the Internet at http://www.cisc.com/), has decided to start what it calls "an experiment in the future of software development and distribution." The company is making some of its computer code available on the Internet for perusal and downloading. CIS is also actively encouraging people to download, study, and hopefully use the code to educate themselves about computer programming.
However, as stated on CIS' web page, part of the experiment is to determine whether "a reasonable copyright policy can be followed for both commercial and non-commercial users." To achieve this end, the company is engaging in a campaign to educate people (especially certain businesses) about software licenses. CIS is working towards this goal by establishing a series of pages on its web site. One of the web pages is a "Winners" page, and the other is a "Loser User" page.
CIS is distributing its software code with strings attached-- you may download the code, but you must comply with the license terms available on a page on CIS' web site. The license terms state that, if you are going to use CIS' code and you are a student or a non-profit organization, you must add a link on your own web page to the CIS web site, or, if you cannot do that, at least send CIS an e-mail message explaining why you cannot do so (for instance, if you do not have a web page).
If you are a commercial user, you must send the company $1 per "use" (as defined in the license) of CIS' source code. CIS even has a document on its web site explaining why you should acknowledge that the company deserves compliance with its license terms.
This is where the "Winners" and "Losers" pages enter the picture. CIS' web server tracks the date, time, and files/pages accessed. The web server also records the machine name accessing the files on CIS' web server. By checking its web server logs, CIS can get at least a rough idea of who is downloading its material-- and thus a basic knowledge of who is complying with its license terms. While the logs usually do not give the names of the actual users downloading the software code, it does reveal who the users' service providers are-- often their employers.
Those users or corporations who have complied with CIS' license terms are added to the "Winners" page. Those who have not complied earn an e-mail message to the administrator of the machine that accessed the material warning that a user's actions have resulted in a breach of the license terms-- and that such actions have earned the company a spot on the "Losers" page. The CIS "Loser Users" web page contains a cut-and-paste of the web server logs, a link to the accused infringers web site, and a few editorial comments thrown in for good measure.
CIS states on a page on its web site:
"If your company is listed below, getting publicity, but shouldn't be, all you have to do is contact us and explain the situation. We will remove you from the list if you either convince us you shouldn't be on it, or you pay your fees like an ethical company. This isn't very hard to do. The whole point is to think about who owns the material you are using, and try to conform to their requests when you use it."
The response to CIS' "Losers" web page has been mixed. Some corporations have referred their listings on the web page and the accompanying e-mail to their legal or corporate ethics departments. Many have simply not replied. One company has hinted at possible legal action, possibly in concert with some of the other listed companies.
The CIS "Losers" and "Winners" web pages obviously raise some interesting issues-- while the Winner's page provides some free advertising, the Loser's page is sort of a vigilante copyright humiliation page. The CIS web pages are clearly a well-intentioned attempt to provide information to the public.
The principle employed is not substantively different from that of traditional "shareware" software distribution (where software is made available for a free trial, and if the user decides to keep the software, a fee is then owed to the copyright holder). The one difference between CIS's distribution of its software code and traditional shareware distribution is that CIS attempts to employ a non-judicial enforcement mechanism to punish or reward users based on their response to the shareware license terms.
Obviously, this scheme may result in CIS provoking a defamation suit, especially when a CIS web page admits that according to CIS' license terms CIS cannot prove conclusively from the information contained in the web server logs that a violation has occurred. However, it would not take much to reduce their liability in this endeavor-- some minor changes to the license terms could clarify when a violation occurs which would then be tracked in CIS' web server logs.
This example should serve as an illustration to corporations that, when their employees "surf the net," the employees' actions may affect their employers. CIS' web page was established as an experimental effort to educate corporations that the actions of their employees may come back to haunt them. Corporations should take steps to ensure that their employees' actions portray the image desired by the corporation-- in the case of CIS, the steps necessary are to provide some basic copyright training in order to avoid being listed as a 'Copyright Loser.'
Web sites similar to those of CIS are likely to grow in popularity. The CIS page is not the only such "vigilante" web site. Three other sites have also been mentioned in some legal news groups on the Internet in the recent past. One web site provides details concerning alleged municipal bond scandals. One web site involves a British libel trial where the site operator is assembling information about the issues addressed in the trial. The last web site supposedly involves a user-submitted list of child molesters-- there is no verification of submissions-- just an opportunity, as the CIS page provides, to have yourself removed from the database of offenders if necessary. (It is worth noting that since being brought to light, this last site does not appear to be operational.).
Such web pages provide a cheap remedy for someone who feels affronted. Sometimes they are an effective remedy-- more effective a remedy than the courts may provide. Sometimes the page may just be an off-base attack. In some cases, the existence of such a web site may benefit the subject of the site's attention. In any case, the existence of such web sites cannot be ignored.
