Wednesday, May 16, 2007

The Crime of Attempted Copyright Infringement

Former Deputy Attorney General James Comey provided dramatic testimony yesterday to the Senate Judiciary Committee, including a visit by then White House Counsel Alberto Gonzales and former chief of staff Andrew Card to Attorney General John Ashcroft's hospital bed. Here is a link to the transcript, which is a must-read. The Volokh Conspiracy has some excellent discussion on the testimony, but this excerpt will suffice:

[I]t seems that most of the highest-level officials in DOJ were ready to resign over the NSA Surveillance program when the White House decided to continue it without DOJ approval. The Office of Legal Counsel under Jack Goldsmith had come up with parameters under which DOJ was willing to approve the program as legal — perhaps within the scope of the AUMF? who knows — and it sounds like the then-existing program was broader than what OLC thought was permitted. Comey agreed with OLC's legal analysis, so he wasn't willing to give DOJ's approval to the program. So Card and Gonzales (then WH Counsel) go to Ashcroft at the hospital to try to persuade Ashcroft to overrule Comey. Comey gets word of what is happening, and he gets to the hospital first and tries to get Ashcroft ready for Card and Gonzales. Comey explains:
And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn’t clear to me that he could. He seemed pretty bad off . . . I tried to see if I could help him get oriented. As I said, it wasn’t clear that I had succeeded. Soon Goldmsith and the ADAG are there by Ashcroft's bedside, and a few minutes later Gonzales and Card arrive. Comey explains what happened next:
They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval . . . . And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn’t matter, because I’m not the attorney general. . . . There is the attorney general, and he pointed to me, and I was just to his left. (Hollywood, are you getting this?) Anyway, the White House ended up not getting DOJ approval for the next period of the program; the President authorized the order for another 45-day window without DOJ's signature. This led the top people at DOJ to move towards resigning. As Comey puts it, "I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for." As I understand it, Comey, FBI Director Mueller, AG Ashcroft, and several other high-level officials were ready to resign. The crisis was defused when President met with Comey 1-on-1. It sounds like the President personally either gave in or reached a compromise with Comey (it's not clear to me which) that refashioned the program in a way that DOJ was willing to approve.

As others have pointed out, the Justice Department we are speaking of already had the most expansive view of Presidential power in modern times, so the dispute should be viewed in that context. As Mr. Comey was preparing his testimony, Present Attorney General Gonzales, in what one commentator described as a "Wag the Dog" tactic, has been shopping around an unprecedented proposal to beef up our criminal IP laws - already on steroids - to include a number of innovative crimes. Since we are not a Parliamentary system, Alberto has to go hat in hand to a member of Congress, and right now there are no takers. But here are some of the highlights:

The proposal asks for forfeiture provisions allowing the government to seize any property used in the commission of a crime; this is already the case for the actual infringing goods and articles used to manufacture them, but Gonzales is thinking big, like seizing the house the articles are kept in, money in your bank account, your car. A new crime of exporting would be adding, and in line with the fascism that is one of the hallmarks of the current Administration, the government would be given wiretapping authority when investigating copyright and trademark cases. And then, there is the new crime of "attempted" copyright. As Wired observes: "Th[e] new "attempt" provision that wouldn't require the actual commission of a violation, the bill could conceivably be expanded, in an extreme case, to interpret a computer full of music next to a spindle of blank CDs as an act of piracy."

We should never say things can't worse or that proposals for even more outrageous protection can't be proposed, but I am heartened indeed that there are no takers so far.


William Patry said...

A friend pointed out that on the transcript of Comey's testimony there is this legend:

"Copyright 2007 CQ Transcriptions, LLC All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ Transcriptions. You may not alter or remove any trademark, copyright or other notice from copies of the content."

I am unware of any originality in straight transcriptions like this one.

Kevin said...

Since so many digital actions might be construed as "attempted copyright infringement" they will have the ability to wire tap anyone.

This isn't about IP its about expanding government's power.

Anonymous said...

I've long viewed the reproduction right as, in essence, governing attempted infringement -- merely prohibiting distribution might present proof problems against the person with 1,000 copies in a warehouse somewhere. So "attempted reproduction" is like an attempted attempt, on that view.

Anonymous said...

Professor Patry,

I'm slightly familiar with your position that modern American copyright is historically unrelated to the English Star Chamber censorship regime. All the same, I hope you would agree that "attempted copyright infringement" raises prior restraint concerns.

Anonymous said...

Schmopyright - the story was Comey's testimony. When Ashcroft won't go along with a more invasive policy, even when he's on meds, then that ought to have convinced Gonzo that the policy was a non-starter!

Anonymous said...

Regarding the copyright of the transcription. If the testimony was not from a prepared statement it would not have been fixed in a tangible form prior to transcription. So if we throw out the derivitive issue it is an interesting situation.

Now I have never seen any US case law on this. But in the UK there is this: Walter v. Lane [1900] AC 539. A reporter is determined to hold the copyright for his transcription.

I am seriously interested in finding any further information about the copyright on impromtu speeches or testimony that had not been written out in advance.

On the other hand, people claim copyrights that don't actually exist all the time. Since no one seems to procescute them; there is little reason not to.