UPDATE: Is it illegal to re-publish the number? Perhaps, but if so, at least I can take comfort in the fact that there’s strength in numbers: a Google search now shows nearly 300,000 pages linking to the Number That Must Not Be Named.
UPDATE 2: I removed the middle numbers from the string, so that I’m not technically displaying the key on my site. The title was a little long anyway. :) The point here isn’t promoting circumvention, obviously, but reporting on this news story (and also pointing out the utter ridiculousness of the DMCA).
So, what, the big bad music industry is going to report me to the bar committee for reporting on a news story? Please. There are literally THOUSANDS of websites reporting this number — the cat is well and truly out of the bag, the genie irrevocably out of the bottle. I’m not giving anyone any information regarding “circumvention technology” that isn’t already publicly available. And if the DMCA can be read so broadly as to make it illegal, or a “character and fitness” problem, to reprint a number that’s already common knowledge, in the course of reporting on a legitimate news story (not making any attempt to give people the necessary information to hack anything), then free speech is dead and I don’t live in America before. Fuck it. This whole thing is ridiculous, and so is your comment.
I was thinking the same thing, Anon. And the sad thing is, I can actually imagine some asshole trying to report me for this — perhaps the “classmate” who revealed “information” (i.e., lies) about my career history to the Message Board That Must Not Be Named.
That sort of nonsense is precisely why I despite AutoAdmit/Xoxohth. Not all lawyers (and lawyers-to-be) are assholes, but give enough of them an Internet connection and anonymity, and it starts to seem that way…
Don’t be such a self-righteous snot, Brendan, and think about it for a second.
It doesn’t matter how many websites this is available at — C&F is about YOUR character and fitness to practice law. Even if this information is freely available on every street corner, it reflects poorly on your judgment to assist in the dissemination. You’re openly aiding and abetting in copyright infringement here, which calls into serious question your ability to counsel clients as to how to conform their behavior to the law. And “everybody else is doing it” is not an excuse when you’re about to go before the bar committee.
Moreover, the big bad music industry will not need to report you to the bar committee for the bar committee to find your blog, obviously.
I’m just sayin’.
And sure, the odds are that this is not likely to cause you a proble, but it so obviously could, that I’m surprised you’re taking the risk.
In fact, since you passed the MPRE you should already be aware that if any of your classmates a) take their own ethical resposibilities seriously, and b) actually believe this post to be of material concern to your fitness to practice law, then they have an affirmative duty to report it to the committee.
Again, just sayin’. And no, I don’t consider this to be of material concern, so this is in no way a threat, veiled or otherwise — but I can very easily see somebody thinking that it *is* material.
Wow, you got really delusional really fast. I’m no autoadmit jerkoff — I’m one of your classmates, reasonably intelligent, who is surprised that you have displayed such a profound lack of judgment with this post. Again, *I* don’t think it’s of material concern, but there are plenty of people who do, and you don’t know that members of your bar committee are not among those people. Why run the non-trivial risk of setting yourself up for further failure?
“And if the DMCA can be read so broadly as to make it illegal, or a “character and fitness†problem, to reprint a number that’s already common knowledge, in the course of reporting on a legitimate news story (not making any attempt to give people the necessary information to hack anything), then free speech is dead and I don’t live in America before. ”
As lawyers, we have certain obligations to our clients and the rule of law generally that trump any free speech rights. If you want to keep being a journalist, then fine – but realize that your obligations to your new profession come before any rights to speak your mind.
Again, just trying to help. Don’t shoot the messenger.
First of all, I didn’t suggest you are an “autoadmit jerkoff,” I simply agreed with Anonymous that your initial, snarkily-phrased comment reminded me of the stuff one might see on autoadmit.
Anyway, as you can see, upon reflection I’ve compromised a bit. My post now does not contain the full number, nor does it link to any sites that contain the full number. It does link to some sites that link to some sites that contain the full number, but c’mon — criticizing me on that basis is like saying that because I link to Google, which links to porn, I’m a pornographer. If someone wants to argue that that reflects poorly on character & fitness, I’ll go to the mat explaining forcefully why it doesn’t.
Even as I compromise, however, I stand by my original point, which isn’t simply that “everybody else is doing it,” but rather that so many people have already done it, the nature of “it” has materially changed. When 300,000 websites are reprinting a “secret” number, the simple fact is that the number is no longer secret. Therefore I am NOT “openly aiding and abetting in copyright infringement.” That would only be the case if I was taking some step that would hinder the copyright holder’s ability to protect this number — but at this point, there is quite literally nothing to protect.
In any event, this is a legitimate news story. Legitimate news sites worldwide are all reporting on it, and it’s just as easy to find the code through their site as it (now) is through mine. If I’m “openly aiding and abetting in copyright infringement,” then so are they. But that’s absurd. The BBC isn’t aiding and abetting in copyright infringement; it’s reporting on a news story. And so am I.
Oh, come off it. If you were “just trying to help,” you would have written me a private e-mail expressing your concern. You aren’t “just trying to help,” you’re trying to make a public show of criticizing me — anonymously, of course. Your initial snarky comment, and some of your word choices (”further failure,” for example) make your intentions quite clear. They don’t impact the validity (or invalidity) of your argument, of course, but don’t try to pretend you’re being noble and I’m being oh-so-harsh by suggesting that your intentions are anything less than pure.
As lawyers, we have certain obligations to our clients and the rule of law generally that trump any free speech rights.
First of all, what clients? I don’t have any clients who are impacted by this post. If I did, that would obviously change the whole picture. As it is, that’s a total non-sequitur. As for “obligations to…the rule of law,” my interpretation of “the rule of law” here differs from yours — among other things, because I believe free speech, which is itself part of the rule of law, makes the aforementioned overly expansive interpretation of the DMCA unconstitutional. It isn’t just my free speech rights, but free speech rights generally, that I believe are at stake here. Are you saying I have an obligation, as a lawyer, to obey a private party’s statutory interpretation when I believe that interpretation is unconstitutional? That doesn’t make any sense.
By the way… I may try to force myself to take a blogging hiatus tomorrow so I can focus on studying… so, if this thread blows up and I don’t respond, that’s why. Doesn’t mean I’m conceding the argument. :)
Anon at 10:46 says, “is this autoadmit?” and you respond, “I was thinking the same thing.” How is that *not* suggesting that I am an autoadmit jerkoff? Furthermore, from what I’ve seen of autoadmit, they go light-years beyond mere snark. But that’s neither here nor there.
“It does link to some sites that link to some sites that contain the full number, but c’mon — criticizing me on that basis is like saying that because I link to Google, which links to porn, I’m a pornographer.”
I would not, and did not, so criticize.
“When 300,000 websites are reprinting a “secret†number, the simple fact is that the number is no longer secret. Therefore I am NOT “openly aiding and abetting in copyright infringement.†That would only be the case if I was taking some step that would hinder the copyright holder’s ability to protect this number — but at this point, there is quite literally nothing to protect.”
This continues to completely miss the point. Untold numbers of copyrighted works are still there to protect. Your posting the code that enables those works to be stolen is the issue, not the fact that you’re publicizing the number itself. By publicizing the number you imply that you think it’s okay to steal the copyrighted works. Which you’re entirely free to think, by the way. But given you’re about to take an oath to uphold the law, it looks suspect that you’re endorsing violation of it.
“If I’m “openly aiding and abetting in copyright infringement,†then so are they. But that’s absurd. The BBC isn’t aiding and abetting in copyright infringement; it’s reporting on a news story. And so am I.”
See my later comment about the tension between being a journalist and a lawyer. Put differently, I doubt the BBC is going to be taking a bar exam and undergoing C&F review this summer, so it’s okay for them to promote copyright infringement. It is, arguably, not okay for you to do so.
“Oh, come off it. If you were “just trying to help,†you would have written me a private e-mail expressing your concern. You aren’t “just trying to help,†you’re trying to make a public show of criticizing me — anonymously, of course. Your initial snarky comment, and some of your word choices (â€further failure,†for example) make your intentions quite clear. ”
You have completely misunderstood my intentions here. Frankly, I still don’t see much snarkiness in the original comment. You acknowledged the possibility that your post was illegal but shrugged your shoulders, saying there’s strength in numbers. Not that a bar committee will give a damn about that. So it seemed an appropriate comparison to make.
I have other reasons for my anonymity having nothing to do with not wanting to say these things to you directly. I’ll gladly email you to reveal myself if you wish. I won’t do it here though.
“I’m being oh-so-harsh ”
Not that I said this, but given the automatic autoadmit-smear comeback and the completely off-topic kneejerk homage to the First Amendment, it actually does seem to capture the moment well. Still, my point was then and remains now, you may think this is a joke but there are those who don’t, and I think you should be more mindful of that. If the fact that I say this on the blog anonymously instead of in an email privately renders it the equivalent of MBTMNBN harassment to you, I’m not really sure what to make of that.
“what clients? I don’t have any clients who are impacted by this post. If I did, that would obviously change the whole picture. As it is, that’s a total non-sequitur.”
Do you understand why the bar committee has you fill out that questionnaire? It’s to determine based on your prior conduct whether you have the necessary character and fitness to be admitted to practice law in the state. As such, your behaviour prior to admission is considered to be a valid indicator of your behavior after admission. SO, no, you don’t have clients now, but that has nothing to do with anything — your poor judgment in endorsing this information may well suggest to the bar committee that you will make equally poor decisions in advising your clients, and that’s the whole point.
“Are you saying I have an obligation, as a lawyer, to obey a private party’s statutory interpretation when I believe that interpretation is unconstitutional? ”
No, I am saying that regardless of how you feel about a private party’s statutory interpretation, you have an obligation not to encourage or assist others in unquestionably violating the law to prove your point about the private party. I;m not saying you actually did that here, but it’s darn close — disseminating the key that hackers can then use to make illegal copies of digital media in direct and undisputed violation of copyright law. (That’s my understanding anyway; I admit I’m not up on the particulars of the DMCA debate, but again, I don’t have to be — just like the bar committee doesn’t have to be. Even if there’s a defensible argument here, it just looks bad. And even if you can win the argument with the committee, why put yourself in a position to have to make it?)
More generally, my point is that, as you should well know, as a lawyer you are more restricted in what you can speak freely about, in ways that go far beyond client confidentiality. Given that, incidents like this are concerning not because of any actual consequences, but because it’s simply the wrong thing to do, in that we have an obligation to condemn and discourage the passage of information like this (or at the very least, not participate in it).
“By the way… I may try to force myself to take a blogging hiatus tomorrow so I can focus on studying… so, if this thread blows up and I don’t respond, that’s why. Doesn’t mean I’m conceding the argument. :)”
I’ll agree to a truce if you do; that way both of us can study AND avoid saying anything further that our bar committees might not like. :)
The Congress shall have power…
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
In the interest of our truce, I’ll let you have the last word on most of your points, but I do want to respond to this:
I doubt the BBC is going to be taking a bar exam and undergoing C&F review this summer, so it’s okay for them to promote copyright infringement. It is, arguably, not okay for you to do so.
Except that neither of us is promoting copyright infringement. Thus, if the BBC reporter who wrote the story in question were undergoing C&F review this summer, and if they were somehow negatively impacted by having written the story, that would be an absolute travesty. That was my whole point in making the analogy: it’s facially absurd to claim that the BBC is promoting copyright infringment by reporting on this story (even though their reportage could indirectly lead some people to the information in question), and I believe it’s just as absurd to claim that I am doing so. We’re both simply reporting on news that is related to copyright infringement. Saying that it’s “promoting copyright infringement” to report on this issue is like saying it was “promoting copyright infringement” in 1999 to report that there’s a new service called Napster, and perhaps that its website is www.napster.com. You’re giving people information that they can, if they so choose, use to violate someone’s copyrights. But you’re giving it to them in the context of reporting on a newsworthy story, not in the context of saying, “Hey, look over here! Free music you can steal!” If these two things are treated as equivalent, then freedom of speech and the press suffer to what I believe is an absolutely intolerable degree.
In any event, do I surmise correctly from your statement “I would not, and did not, so criticize” that you believe my post, as now modified, no longer presents a problem?
Oh, and I’ll concede that I jumped the gun somewhat in attacking your motives. I’m a bit jumpy about that after recent events. Your later comments make clear that you’re being thoughtful and reasonable, even if I disagree with you, and while I could nitpick a few specific things you said, overall your comment falls well within what I generally consider to be acceptable anonymous commentary (i.e., discussing the substance of an issue, not making personal attacks). So I apologize for my overheated rhetoric on that point, and you need not feel somehow obligated to identify yourself to me via e-mail (though of course you’re welcome to do so).
USC 1L, that Congress has the general right to legislate vis a vis copyrights is not in question. Whether the DMCA goes too far and runs roughshod over other constitutional imperatives, is.
To make a weird, admittedly-rough-because-it’s-midnight-and-I’m-tired analogy: Congress also has the unquestioned power to run the postal service. But if Congress exercised that power by banning all competition with the postal service, e.g. FedEx, and saying that anyone who advertises for an illegal competitor will be shot on sight, the mere existence of the power “to establish post offices and post roads” wouldn’t settle the issue.
Another example: Congress has the power to coin money. Clearly, through the necessary and proper clause, they therefore have the power to forbid counterfeit money. But how far can the laws go? Could they pass an act that makes it illegal for a newspaper or blog to print locations where counterfeit money can be found? To answer that question, it obviously isn’t enough to simply quote Article I, Section 8, Clause 5 (”The Congress shall have the power… To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.”)
And I’m just saying you’re throwing around Article I, Section 8, Clause 8 like that gives your argument constitutional backing that somehow overcomes the other side’s argument. It doesn’t.
Ok, BoxerLoy, you’ve had enough sparring bouts against self-crafted examples. For the main event, how about taking on the issue at hand?
It is without doubt that free speech has exceptions. There are competing interests that it defers to. That is not to say that the fact it defers in certain situations means it must defer in this case.
There are heavy policy considerations for protecting the AACS’s rights and interests. Chief among these: jobs, jobs, jobs (as my property prof would say). I won’t go through the parade of horribles that the RIAA would trot out, but if copyrights cannot be protected then art will be deterred (”To promote the progress of science and useful arts”). The effects could potentially be felt by everyone involved in the creation, production, and distribution.
I have an exam tomorrow, so I’ll save a fuller argument for later.
“Don’t be such a self-righteous snot, Brendan, and think about it for a second.
It doesn’t matter how many websites this is available at — C&F is about YOUR character and fitness to practice law. Even if this information is freely available on every street corner, it reflects poorly on your judgment to assist in the dissemination.”
NDLS2007:
What nonsense. The fact that you’re reading this blog would make you culpable.
“Anyway, as you can see, upon reflection I’ve compromised a bit. My post now does not contain the full number, nor does it link to any sites that contain the full number.
C’mon Brendan. I printed your whole post yesterday. So there is irrefutable evidence of intent that you did post the number.
“The fact that you’re reading this blog would make you culpable.”
Intaking information about unlawful behavior says absolutely nothing about my character and fitness. Promulgating it in a way that implies endorsement does.
You may not agree — I’m not sure *I* agree — but it’s not nonsense.
“Intaking information about unlawful behavior says absolutely nothing about my character and fitness. Promulgating it in a way that implies endorsement does.”
If you visit a website that contains pornography you are by default endorsing it. So, cut your rhetoric rightfulness cause. And who cares about your character and fitness if you can’t win cases you will be doom to fail and such failure would certainly reflect on your character and fitness. how is that for moral dilemma 101.
And pornography is legal and protected expression, and viewing pornography is legal and protected behavior. Your analogy, not to put too fine a point on it, sucks.
Moreover, C&F is not about MORAL character or fitness, it’s about chracter and fitness to uphold the law, preserve client confidences, and fulfill the fudiciary and loyalty duties demanded of lawyers.
Whether a lawyer views pornography is irrelevant to any of the above, so long as it’s not child porn or other stuff that is illegal. It’s not at all the same as actively distributing information that encourages lawbreaking behaviour.
If I visit a porn website, no foul. If I *host* a kiddie-porn site, or tell others how to go about making a kiddie-orn video, that’s indeed a serious concern here.
Please note I’m not suggesting Brendan has done the equivalent of making kiddie porn here. I’m just trying to work within your (quite bad) analogy.
Your mini-rant about winning cases is the very epitome of non sequitur, so I have no idea where to even begin with a response. Other than to point out the blindingly obvious: that technical ability and character/fitness are not related in the slightest.
If you visit a website that contains pornography you are by default endorsing it.
This is wrong both a) as an analogy, and b) by its own terms.
First, a pornographic Web site tends to have a history and clear purpose of posting pornography. If one visits such a site, then yes, arguably (see “second” below) they are endorsing it. However, Brendan’s blog is not a site with a history of posting information on how to circumvent copyright protection techniques; therefore, one does notreasonably expect to be subject to such information when one casually visits such a general-purpose blog.
Second, one who visits a pornographic Web site isn’t necessarily endorsing pornography. Perhaps they are working for the government and enforcing child pornography laws through monitoring. Perhaps the inputted the wrong combination of search terms and hit the wrong link. Viewing a Web site cannot fairly be interpreted as endorsing its contents in the same way that NDLS2007 is arguing that Brendan’s decision to actually post the number (an affirmative act, as opposed to passively viewing it) might be construed by some as showing poor character and fitness.
And who cares about your character and fitness if you can’t win cases you will be doom to fail and such failure would certainly reflect on your character and fitness. how is that for moral dilemma 101.
I’m not sure if this is even English, but if you’re arguing that one’s ability to win cases and argue persuasively is a matter of character and fitness, you’re displaying a profound ignorance about what C&F is about, as opposed to the actual bar exam (which is what tests competency). Of course, you were just trying to get a cheap dig in against NDLS2007. Since it’s both incoherent (in that it fails to achieve its goal) and apparently clever to you, it speaks more to your grotesque inability to make a point than anything else.
“This is wrong both a) as an analogy, and b) by its own terms.”
I dont’ think that it would be inherently wrong at all if one considers the following:
Let’s say you frequent porn site XXX. Now, porn site XXX indulges its mature law intellectuals with images of lusty, hungry nudes. Now, let’s say that porn site XXX accidentally (and/or negligently) posts nudes of underage models. For one, let’s say you fail to acknowledge the images and dismiss them, or ignore the fact all together, but continue to visite XXX. Let’s say detective Z finds out that you frequent site XXX and that you failed to report site XXX when you knew about their grotesque action.
So, if site XXX accidentally posted such material, does that make site XXX malicious and lacking in character and fitness?
This arguement could go two ways: Should site XXX be penalized or should the viewer be penalized?
When I tried to “get a cheap dig in against NDLS2007″ [LOL] I did so because he immediately gave the intimation that BL lacked in character and fitness. And furthermore, any reasonable member of C&F [whoever they might be or whatever they might do] would instantly know and understand that NDLS2007 pressumptousness is vastly void.
Now, arguing persuasively to either win or lose a case does not automatically mean one have (or doesn’t have) character and fitness. So, it seems obvious to me that the two are somehow interrelated.
Which led me to ask the other day, as I was watching the film “Capote” why it is that something has be proved for it to be absolute truth. In the same essence, an incoherent arguement that does not achieve its goal is not necessarily wrong. It just fails to persuade.
random binary number:
10111101100001000001010101101100010101100011010101101000000000000000
…free beer to anyone who can decipher… with a pad and pencil ONLY!
0B D8 41 56 C5 63 56 80 00
Which doesn’t decode into anything readable in either ASCII or Unicode (plus i had to assume leading zeros in order for it to even have the right length) so i’m presuming its something different.
I really don’t want to try and calculate the number it equates to by hand, but its somehere between 2^68 and 2^68+2^67, which is a very very large number, but again not one that fits well into any computer logic.
Just to be sure, you did mean to type specifically that number?
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May 2nd, 2007 at 7:51:47 pm
I love digg.com.
May 2nd, 2007 at 8:03:12 pm
Meh, i think digg is overrated. Over course its not as bad as twitter…
May 2nd, 2007 at 9:20:41 pm
so how do you hack the cd to make copies? [printing in the background garbles question away]
May 2nd, 2007 at 10:30:53 pm
“at least I can take comfort in the fact that there’s strength in numbers.”
You mean like the numbers of people who are denied admission to the bar for failing their C&F review?
May 2nd, 2007 at 10:41:00 pm
So, what, the big bad music industry is going to report me to the bar committee for reporting on a news story? Please. There are literally THOUSANDS of websites reporting this number — the cat is well and truly out of the bag, the genie irrevocably out of the bottle. I’m not giving anyone any information regarding “circumvention technology” that isn’t already publicly available. And if the DMCA can be read so broadly as to make it illegal, or a “character and fitness” problem, to reprint a number that’s already common knowledge, in the course of reporting on a legitimate news story (not making any attempt to give people the necessary information to hack anything), then free speech is dead and I don’t live in America before. Fuck it. This whole thing is ridiculous, and so is your comment.
May 2nd, 2007 at 10:46:00 pm
C&F concern? Ridiculous. I love how lawyers-to-be try to lord this over their peers. Is this autoadmit?
May 2nd, 2007 at 10:50:39 pm
I was thinking the same thing, Anon. And the sad thing is, I can actually imagine some asshole trying to report me for this — perhaps the “classmate” who revealed “information” (i.e., lies) about my career history to the Message Board That Must Not Be Named.
That sort of nonsense is precisely why I despite AutoAdmit/Xoxohth. Not all lawyers (and lawyers-to-be) are assholes, but give enough of them an Internet connection and anonymity, and it starts to seem that way…
May 2nd, 2007 at 10:50:59 pm
Don’t be such a self-righteous snot, Brendan, and think about it for a second.
It doesn’t matter how many websites this is available at — C&F is about YOUR character and fitness to practice law. Even if this information is freely available on every street corner, it reflects poorly on your judgment to assist in the dissemination. You’re openly aiding and abetting in copyright infringement here, which calls into serious question your ability to counsel clients as to how to conform their behavior to the law. And “everybody else is doing it” is not an excuse when you’re about to go before the bar committee.
Moreover, the big bad music industry will not need to report you to the bar committee for the bar committee to find your blog, obviously.
I’m just sayin’.
And sure, the odds are that this is not likely to cause you a proble, but it so obviously could, that I’m surprised you’re taking the risk.
In fact, since you passed the MPRE you should already be aware that if any of your classmates a) take their own ethical resposibilities seriously, and b) actually believe this post to be of material concern to your fitness to practice law, then they have an affirmative duty to report it to the committee.
Again, just sayin’. And no, I don’t consider this to be of material concern, so this is in no way a threat, veiled or otherwise — but I can very easily see somebody thinking that it *is* material.
May 2nd, 2007 at 10:53:51 pm
Wow, you got really delusional really fast. I’m no autoadmit jerkoff — I’m one of your classmates, reasonably intelligent, who is surprised that you have displayed such a profound lack of judgment with this post. Again, *I* don’t think it’s of material concern, but there are plenty of people who do, and you don’t know that members of your bar committee are not among those people. Why run the non-trivial risk of setting yourself up for further failure?
May 2nd, 2007 at 11:03:58 pm
P.S.
“And if the DMCA can be read so broadly as to make it illegal, or a “character and fitness†problem, to reprint a number that’s already common knowledge, in the course of reporting on a legitimate news story (not making any attempt to give people the necessary information to hack anything), then free speech is dead and I don’t live in America before. ”
As lawyers, we have certain obligations to our clients and the rule of law generally that trump any free speech rights. If you want to keep being a journalist, then fine – but realize that your obligations to your new profession come before any rights to speak your mind.
Again, just trying to help. Don’t shoot the messenger.
May 2nd, 2007 at 11:09:19 pm
First of all, I didn’t suggest you are an “autoadmit jerkoff,” I simply agreed with Anonymous that your initial, snarkily-phrased comment reminded me of the stuff one might see on autoadmit.
Anyway, as you can see, upon reflection I’ve compromised a bit. My post now does not contain the full number, nor does it link to any sites that contain the full number. It does link to some sites that link to some sites that contain the full number, but c’mon — criticizing me on that basis is like saying that because I link to Google, which links to porn, I’m a pornographer. If someone wants to argue that that reflects poorly on character & fitness, I’ll go to the mat explaining forcefully why it doesn’t.
Even as I compromise, however, I stand by my original point, which isn’t simply that “everybody else is doing it,” but rather that so many people have already done it, the nature of “it” has materially changed. When 300,000 websites are reprinting a “secret” number, the simple fact is that the number is no longer secret. Therefore I am NOT “openly aiding and abetting in copyright infringement.” That would only be the case if I was taking some step that would hinder the copyright holder’s ability to protect this number — but at this point, there is quite literally nothing to protect.
In any event, this is a legitimate news story. Legitimate news sites worldwide are all reporting on it, and it’s just as easy to find the code through their site as it (now) is through mine. If I’m “openly aiding and abetting in copyright infringement,” then so are they. But that’s absurd. The BBC isn’t aiding and abetting in copyright infringement; it’s reporting on a news story. And so am I.
May 2nd, 2007 at 11:12:33 pm
just trying to help
Oh, come off it. If you were “just trying to help,” you would have written me a private e-mail expressing your concern. You aren’t “just trying to help,” you’re trying to make a public show of criticizing me — anonymously, of course. Your initial snarky comment, and some of your word choices (”further failure,” for example) make your intentions quite clear. They don’t impact the validity (or invalidity) of your argument, of course, but don’t try to pretend you’re being noble and I’m being oh-so-harsh by suggesting that your intentions are anything less than pure.
May 2nd, 2007 at 11:15:26 pm
P.S.
As lawyers, we have certain obligations to our clients and the rule of law generally that trump any free speech rights.
First of all, what clients? I don’t have any clients who are impacted by this post. If I did, that would obviously change the whole picture. As it is, that’s a total non-sequitur. As for “obligations to…the rule of law,” my interpretation of “the rule of law” here differs from yours — among other things, because I believe free speech, which is itself part of the rule of law, makes the aforementioned overly expansive interpretation of the DMCA unconstitutional. It isn’t just my free speech rights, but free speech rights generally, that I believe are at stake here. Are you saying I have an obligation, as a lawyer, to obey a private party’s statutory interpretation when I believe that interpretation is unconstitutional? That doesn’t make any sense.
May 2nd, 2007 at 11:31:11 pm
By the way… I may try to force myself to take a blogging hiatus tomorrow so I can focus on studying… so, if this thread blows up and I don’t respond, that’s why. Doesn’t mean I’m conceding the argument. :)
May 2nd, 2007 at 11:42:28 pm
Anon at 10:46 says, “is this autoadmit?” and you respond, “I was thinking the same thing.” How is that *not* suggesting that I am an autoadmit jerkoff? Furthermore, from what I’ve seen of autoadmit, they go light-years beyond mere snark. But that’s neither here nor there.
“It does link to some sites that link to some sites that contain the full number, but c’mon — criticizing me on that basis is like saying that because I link to Google, which links to porn, I’m a pornographer.”
I would not, and did not, so criticize.
“When 300,000 websites are reprinting a “secret†number, the simple fact is that the number is no longer secret. Therefore I am NOT “openly aiding and abetting in copyright infringement.†That would only be the case if I was taking some step that would hinder the copyright holder’s ability to protect this number — but at this point, there is quite literally nothing to protect.”
This continues to completely miss the point. Untold numbers of copyrighted works are still there to protect. Your posting the code that enables those works to be stolen is the issue, not the fact that you’re publicizing the number itself. By publicizing the number you imply that you think it’s okay to steal the copyrighted works. Which you’re entirely free to think, by the way. But given you’re about to take an oath to uphold the law, it looks suspect that you’re endorsing violation of it.
“If I’m “openly aiding and abetting in copyright infringement,†then so are they. But that’s absurd. The BBC isn’t aiding and abetting in copyright infringement; it’s reporting on a news story. And so am I.”
See my later comment about the tension between being a journalist and a lawyer. Put differently, I doubt the BBC is going to be taking a bar exam and undergoing C&F review this summer, so it’s okay for them to promote copyright infringement. It is, arguably, not okay for you to do so.
“Oh, come off it. If you were “just trying to help,†you would have written me a private e-mail expressing your concern. You aren’t “just trying to help,†you’re trying to make a public show of criticizing me — anonymously, of course. Your initial snarky comment, and some of your word choices (â€further failure,†for example) make your intentions quite clear. ”
You have completely misunderstood my intentions here. Frankly, I still don’t see much snarkiness in the original comment. You acknowledged the possibility that your post was illegal but shrugged your shoulders, saying there’s strength in numbers. Not that a bar committee will give a damn about that. So it seemed an appropriate comparison to make.
I have other reasons for my anonymity having nothing to do with not wanting to say these things to you directly. I’ll gladly email you to reveal myself if you wish. I won’t do it here though.
“I’m being oh-so-harsh ”
Not that I said this, but given the automatic autoadmit-smear comeback and the completely off-topic kneejerk homage to the First Amendment, it actually does seem to capture the moment well. Still, my point was then and remains now, you may think this is a joke but there are those who don’t, and I think you should be more mindful of that. If the fact that I say this on the blog anonymously instead of in an email privately renders it the equivalent of MBTMNBN harassment to you, I’m not really sure what to make of that.
“what clients? I don’t have any clients who are impacted by this post. If I did, that would obviously change the whole picture. As it is, that’s a total non-sequitur.”
Do you understand why the bar committee has you fill out that questionnaire? It’s to determine based on your prior conduct whether you have the necessary character and fitness to be admitted to practice law in the state. As such, your behaviour prior to admission is considered to be a valid indicator of your behavior after admission. SO, no, you don’t have clients now, but that has nothing to do with anything — your poor judgment in endorsing this information may well suggest to the bar committee that you will make equally poor decisions in advising your clients, and that’s the whole point.
“Are you saying I have an obligation, as a lawyer, to obey a private party’s statutory interpretation when I believe that interpretation is unconstitutional? ”
No, I am saying that regardless of how you feel about a private party’s statutory interpretation, you have an obligation not to encourage or assist others in unquestionably violating the law to prove your point about the private party. I;m not saying you actually did that here, but it’s darn close — disseminating the key that hackers can then use to make illegal copies of digital media in direct and undisputed violation of copyright law. (That’s my understanding anyway; I admit I’m not up on the particulars of the DMCA debate, but again, I don’t have to be — just like the bar committee doesn’t have to be. Even if there’s a defensible argument here, it just looks bad. And even if you can win the argument with the committee, why put yourself in a position to have to make it?)
More generally, my point is that, as you should well know, as a lawyer you are more restricted in what you can speak freely about, in ways that go far beyond client confidentiality. Given that, incidents like this are concerning not because of any actual consequences, but because it’s simply the wrong thing to do, in that we have an obligation to condemn and discourage the passage of information like this (or at the very least, not participate in it).
May 2nd, 2007 at 11:43:43 pm
“By the way… I may try to force myself to take a blogging hiatus tomorrow so I can focus on studying… so, if this thread blows up and I don’t respond, that’s why. Doesn’t mean I’m conceding the argument. :)”
I’ll agree to a truce if you do; that way both of us can study AND avoid saying anything further that our bar committees might not like. :)
May 2nd, 2007 at 11:56:50 pm
tee ‘09 F9′ with the whole code on it!
http://moeschwag.com/hcrcot.html
May 2nd, 2007 at 11:57:27 pm
The Congress shall have power…
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
May 3rd, 2007 at 12:02:43 am
In the interest of our truce, I’ll let you have the last word on most of your points, but I do want to respond to this:
I doubt the BBC is going to be taking a bar exam and undergoing C&F review this summer, so it’s okay for them to promote copyright infringement. It is, arguably, not okay for you to do so.
Except that neither of us is promoting copyright infringement. Thus, if the BBC reporter who wrote the story in question were undergoing C&F review this summer, and if they were somehow negatively impacted by having written the story, that would be an absolute travesty. That was my whole point in making the analogy: it’s facially absurd to claim that the BBC is promoting copyright infringment by reporting on this story (even though their reportage could indirectly lead some people to the information in question), and I believe it’s just as absurd to claim that I am doing so. We’re both simply reporting on news that is related to copyright infringement. Saying that it’s “promoting copyright infringement” to report on this issue is like saying it was “promoting copyright infringement” in 1999 to report that there’s a new service called Napster, and perhaps that its website is www.napster.com. You’re giving people information that they can, if they so choose, use to violate someone’s copyrights. But you’re giving it to them in the context of reporting on a newsworthy story, not in the context of saying, “Hey, look over here! Free music you can steal!” If these two things are treated as equivalent, then freedom of speech and the press suffer to what I believe is an absolutely intolerable degree.
In any event, do I surmise correctly from your statement “I would not, and did not, so criticize” that you believe my post, as now modified, no longer presents a problem?
Oh, and I’ll concede that I jumped the gun somewhat in attacking your motives. I’m a bit jumpy about that after recent events. Your later comments make clear that you’re being thoughtful and reasonable, even if I disagree with you, and while I could nitpick a few specific things you said, overall your comment falls well within what I generally consider to be acceptable anonymous commentary (i.e., discussing the substance of an issue, not making personal attacks). So I apologize for my overheated rhetoric on that point, and you need not feel somehow obligated to identify yourself to me via e-mail (though of course you’re welcome to do so).
Okay. To bed, and then to study. :)
May 3rd, 2007 at 12:07:25 am
USC 1L, that Congress has the general right to legislate vis a vis copyrights is not in question. Whether the DMCA goes too far and runs roughshod over other constitutional imperatives, is.
To make a weird, admittedly-rough-because-it’s-midnight-and-I’m-tired analogy: Congress also has the unquestioned power to run the postal service. But if Congress exercised that power by banning all competition with the postal service, e.g. FedEx, and saying that anyone who advertises for an illegal competitor will be shot on sight, the mere existence of the power “to establish post offices and post roads” wouldn’t settle the issue.
May 3rd, 2007 at 12:09:19 am
I’m just saying that people are throwing around the 1st amendment like that gives their argument constitutional backing that the other side lacks.
May 3rd, 2007 at 12:11:47 am
Another example: Congress has the power to coin money. Clearly, through the necessary and proper clause, they therefore have the power to forbid counterfeit money. But how far can the laws go? Could they pass an act that makes it illegal for a newspaper or blog to print locations where counterfeit money can be found? To answer that question, it obviously isn’t enough to simply quote Article I, Section 8, Clause 5 (”The Congress shall have the power… To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.”)
May 3rd, 2007 at 12:13:07 am
And I’m just saying you’re throwing around Article I, Section 8, Clause 8 like that gives your argument constitutional backing that somehow overcomes the other side’s argument. It doesn’t.
Okay, I’m really, really going to bed now. :)
May 3rd, 2007 at 12:38:34 am
Ok, BoxerLoy, you’ve had enough sparring bouts against self-crafted examples. For the main event, how about taking on the issue at hand?
It is without doubt that free speech has exceptions. There are competing interests that it defers to. That is not to say that the fact it defers in certain situations means it must defer in this case.
There are heavy policy considerations for protecting the AACS’s rights and interests. Chief among these: jobs, jobs, jobs (as my property prof would say). I won’t go through the parade of horribles that the RIAA would trot out, but if copyrights cannot be protected then art will be deterred (”To promote the progress of science and useful arts”). The effects could potentially be felt by everyone involved in the creation, production, and distribution.
I have an exam tomorrow, so I’ll save a fuller argument for later.
May 3rd, 2007 at 1:19:33 am
Boooo, i posted a random binary number, and you took it down ;-)
May 3rd, 2007 at 9:51:28 am
random binary number:
10111101100001000001010101101100010101100011010101101000000000000000
…free beer to anyone who can decipher… with a pad and pencil ONLY!
May 3rd, 2007 at 12:00:57 pm
“Don’t be such a self-righteous snot, Brendan, and think about it for a second.
It doesn’t matter how many websites this is available at — C&F is about YOUR character and fitness to practice law. Even if this information is freely available on every street corner, it reflects poorly on your judgment to assist in the dissemination.”
NDLS2007:
What nonsense. The fact that you’re reading this blog would make you culpable.
“Anyway, as you can see, upon reflection I’ve compromised a bit. My post now does not contain the full number, nor does it link to any sites that contain the full number.
C’mon Brendan. I printed your whole post yesterday. So there is irrefutable evidence of intent that you did post the number.
May 3rd, 2007 at 12:09:03 pm
Nonsense? Here’s the nonsense:
“The fact that you’re reading this blog would make you culpable.”
Intaking information about unlawful behavior says absolutely nothing about my character and fitness. Promulgating it in a way that implies endorsement does.
You may not agree — I’m not sure *I* agree — but it’s not nonsense.
May 3rd, 2007 at 12:17:34 pm
“Intaking information about unlawful behavior says absolutely nothing about my character and fitness. Promulgating it in a way that implies endorsement does.”
If you visit a website that contains pornography you are by default endorsing it. So, cut your rhetoric rightfulness cause. And who cares about your character and fitness if you can’t win cases you will be doom to fail and such failure would certainly reflect on your character and fitness. how is that for moral dilemma 101.
May 3rd, 2007 at 12:26:57 pm
And pornography is legal and protected expression, and viewing pornography is legal and protected behavior. Your analogy, not to put too fine a point on it, sucks.
Moreover, C&F is not about MORAL character or fitness, it’s about chracter and fitness to uphold the law, preserve client confidences, and fulfill the fudiciary and loyalty duties demanded of lawyers.
Whether a lawyer views pornography is irrelevant to any of the above, so long as it’s not child porn or other stuff that is illegal. It’s not at all the same as actively distributing information that encourages lawbreaking behaviour.
If I visit a porn website, no foul. If I *host* a kiddie-porn site, or tell others how to go about making a kiddie-orn video, that’s indeed a serious concern here.
Please note I’m not suggesting Brendan has done the equivalent of making kiddie porn here. I’m just trying to work within your (quite bad) analogy.
Your mini-rant about winning cases is the very epitome of non sequitur, so I have no idea where to even begin with a response. Other than to point out the blindingly obvious: that technical ability and character/fitness are not related in the slightest.
May 3rd, 2007 at 12:28:28 pm
If you visit a website that contains pornography you are by default endorsing it.
This is wrong both a) as an analogy, and b) by its own terms.
First, a pornographic Web site tends to have a history and clear purpose of posting pornography. If one visits such a site, then yes, arguably (see “second” below) they are endorsing it. However, Brendan’s blog is not a site with a history of posting information on how to circumvent copyright protection techniques; therefore, one does notreasonably expect to be subject to such information when one casually visits such a general-purpose blog.
Second, one who visits a pornographic Web site isn’t necessarily endorsing pornography. Perhaps they are working for the government and enforcing child pornography laws through monitoring. Perhaps the inputted the wrong combination of search terms and hit the wrong link. Viewing a Web site cannot fairly be interpreted as endorsing its contents in the same way that NDLS2007 is arguing that Brendan’s decision to actually post the number (an affirmative act, as opposed to passively viewing it) might be construed by some as showing poor character and fitness.
And who cares about your character and fitness if you can’t win cases you will be doom to fail and such failure would certainly reflect on your character and fitness. how is that for moral dilemma 101.
I’m not sure if this is even English, but if you’re arguing that one’s ability to win cases and argue persuasively is a matter of character and fitness, you’re displaying a profound ignorance about what C&F is about, as opposed to the actual bar exam (which is what tests competency). Of course, you were just trying to get a cheap dig in against NDLS2007. Since it’s both incoherent (in that it fails to achieve its goal) and apparently clever to you, it speaks more to your grotesque inability to make a point than anything else.
May 3rd, 2007 at 1:06:15 pm
“This is wrong both a) as an analogy, and b) by its own terms.”
I dont’ think that it would be inherently wrong at all if one considers the following:
Let’s say you frequent porn site XXX. Now, porn site XXX indulges its mature law intellectuals with images of lusty, hungry nudes. Now, let’s say that porn site XXX accidentally (and/or negligently) posts nudes of underage models. For one, let’s say you fail to acknowledge the images and dismiss them, or ignore the fact all together, but continue to visite XXX. Let’s say detective Z finds out that you frequent site XXX and that you failed to report site XXX when you knew about their grotesque action.
So, if site XXX accidentally posted such material, does that make site XXX malicious and lacking in character and fitness?
This arguement could go two ways: Should site XXX be penalized or should the viewer be penalized?
When I tried to “get a cheap dig in against NDLS2007″ [LOL] I did so because he immediately gave the intimation that BL lacked in character and fitness. And furthermore, any reasonable member of C&F [whoever they might be or whatever they might do] would instantly know and understand that NDLS2007 pressumptousness is vastly void.
Now, arguing persuasively to either win or lose a case does not automatically mean one have (or doesn’t have) character and fitness. So, it seems obvious to me that the two are somehow interrelated.
Which led me to ask the other day, as I was watching the film “Capote” why it is that something has be proved for it to be absolute truth. In the same essence, an incoherent arguement that does not achieve its goal is not necessarily wrong. It just fails to persuade.
May 3rd, 2007 at 1:56:32 pm
random binary number:
10111101100001000001010101101100010101100011010101101000000000000000
…free beer to anyone who can decipher… with a pad and pencil ONLY!
0B D8 41 56 C5 63 56 80 00
Which doesn’t decode into anything readable in either ASCII or Unicode (plus i had to assume leading zeros in order for it to even have the right length) so i’m presuming its something different.
I really don’t want to try and calculate the number it equates to by hand, but its somehere between 2^68 and 2^68+2^67, which is a very very large number, but again not one that fits well into any computer logic.
Just to be sure, you did mean to type specifically that number?