Law Blog

It’s official – we’re now taking our legal cues on privacy from China and South Korea.  Not literally of course; though like every American court we can still look to another country’s legal statutes and cases for inspiration… though that’s going away from the point of my post today.

You remember email, right?  That thing you’ve been using as your main source of written communication since the last decade?  The major form of correspondence that has surpassed old-fashioned snail mail and which is relied upon by everyone from business titans to celebrities, the president, and your aging grandmother (who floods your inbox with those funny grammatically incorrect cat pictures)?  Yeah, that email – it’s no longer protected against searches from the police.

“No, that can’t be right!  Right?  Email?  They are no different than letters you received in the mail; how can they not be afforded the same protection?” Well, apparently if you think like that you’ve been preempted by a federal judge, my friend.

Specifically, this ruling comes down from and Oregon Federal Judge Michael Mosman (I almost typed Michael Madsen; if he gave the ruling I might’ve been less outraged).  Judge Mosman argues that unlike regular snail mail which is handled by postal employees, e-mail should not be afforded the same protection against unlawful searches and seizures under the Fourth Amendment because when an email is sent, it goes through various Internet service providers.  By traveling through these different providers, each email leaves a digital image of itself with each ISP.  And apparently this fact is enough to distinguish email from regular land mail because by leaving a digital copy of itself, emails are in essence open to the ISP to read and monitor and therefore people who send emails cannot expect to have the same level of privacy as when one sends a regular piece of mail through the post office.  Judge Mosman’s full opinion can be read here (please note that the link is to a PDF).

Sound mental?  Yeah, well it should.  Judge Mosman seems to hang his ruling on the notion that because emails aren’t sealed in envelopes like a written letters, people should expect it to be read.  Now to be fair, police would still need a warrant to search through your email.  However, they’ll just need to submit the warrant to an ISP that has your emails to get access to them, thereby completely bypassing you and giving you no notice before invading your private emails.

Now on one hand, Judge Mosman’s argument makes some sense.  Junk mail in the form of post cards and brochures are almost never sealed and the courts have generally viewed these as forms of advertisement and therefore not protected under the Fourth Amendment since it’s argued that junk mail is meant to be seen by as many people as possible.  However, this is also where Judge Mosman’s argument breaks down because private emails aren’t advertisements, but are actual private communications between parties.

“But Andrew, what about the whole issue of emails leaving digital copies of themselves on ISPs and not being sealed like normal letters?”  Well let me answer that question, too, and thank you for asking so kindly.  Though emails are not physical sealed, they are often digitally encrypted to prevent prying eyes from seeing its contents.  Therefore, an analogy can be drawn between sealing and encryption since they both show the sender’s intent to keep their communication private.  Furthermore, like postal workers who we trust not to open our mail, similarly we trust our ISPs not to read our emails.

Anyway, all my ranting is meaningless until someone challenges Judge Mosman’s ruling or the legislature passes a law that gives emails the same protection against unlawful searches and seizures that physical mail enjoys.

So get started people, write your senators and congressmen, just don’t email them – for now.

Yesterday during one of my many, many sleepless nights, I decided to boot up my computer to research some case intake trends for LegalMatch.  Why you ask?  Well aside from the fact that I love this company and its 25-cent soda machine, which by the way may also be a reason for my insomnia, I found it to be the best way to knock me unconscious, a close second only to valium, of course.  Hahaha, I kid, I kid, I love looking up LegalMatch statistics and pleasing the mighty gods who sign my paycheck.  As long as I don’t have to sacrifice goats, I’m fine with whatever you guys want me to do…

Seriously though, a lot of times when I’m writing these blogs, I don’t really have a direction.  I kind of just go online or through LegalMatch’s system until something strikes me.  As I was going through it I started to notice an odd trend.  The number of copyright dispute cases we’ve been receiving has increased a lot over the past couple of years.  After grabbing my calculator, I found out the jump was pretty significant, a little over 50 percent since 2008.

Here at LegalMatch, we get a lot of cases concerning many different areas of law.  As is customary in the legal field, there really isn’t any sort of rhyme or reason to the frequency of the types of cases received.  Unlike the retail industry, legal issue requiring litigation can spring up at anytime.  Also some fields of law are by nature busier than others.  For example, personal injury cases are always plentiful because injuries happen all the time – hence all the lawyer TV ads you see during daytime television.

But copyright cases have always been pretty stable, neither dropping off or spiking significantly.  Which was why it was so weird when I saw noticed were getting a lot of these types of disputes all of a sudden.  It didn’t make much sense to me.  The RIAA has been around for years now, along with numerous other intellectual property protection groups, so why the spike now?

Then it hit me.  It was probably due to the economy.  With so many people out of work nowadays, it’s not too big of a stretch to imagine that people probably have a lot more time on their hands.  Time to pursue other independent projects, time to be creative and pursue that dream of being a travelling vagabond artist or in lieu of that, a writer, musician, or some inventor of the Magic Bullet!!  That thing is awesome until you realize it’s smaller than a blender and instead of cleaning one big container, you have to clean 6 small ones.

Anyway, getting back to my point, the vast majority of copyright cases LegalMatch handles involves a plaintiff trying to either enforce a copyright or get a copyright.  In other words, it’s people trying to protect their work against someone they believe infringed on their work or are trying to ensure that their work is protected in the future.

So is there a lesson here?  Well, one is if you have a job, hold on to it like your life depended on it because it probably does and if you lose it you’ll be stuck in a litigation nightmare where you’ll be trying to protect your claim on some song you wrote in the 80s.  Another is having your own anesthesiologist might sound like a cool idea, but it’s really not.

Recently, consumers who bought digital copies of George Orwell’s 1984 for their Amazon Kindles woke up to an unpleasant surprise: every digital copy stored on an internet-connected Kindle was deleted. Apparently, the publisher that authorized the books to be sold for the Kindle never owned the rights to the book in the first place. Amazon found out about this, and decided to delete the books from customers’ devices, to avoid being sued. Customers who paid for the book received a refund.

Besides relishing in the irony of seemingly Orwellian tactics being applied to a George Orwell book, publications that specialize in law, technology, and literature have all speculated about what this means for the future of copyright law, “cloud computing,” and literature itself.

Of particular interest in this fiasco is the doctrine of first sale. Essentially, it is an important aspect of copyright law which allows the owners of particular (lawfully obtained) copies of a work to do whatever they like with the physical object in which it embodies, such as giving it to a friend, or selling it to a used bookstore, from which it can be re-sold. Note that it does not allow someone to make unauthorized copies of a work they have purchased. It only concerns the physical object, not the content.

But what happens when media is bought, sold, and consumed without ever being embodied in any physical form, such as digital media? Can the first sale doctrine be updated to accommodate digital media, or is it destined to become as irrelevant as physical media itself?

Some may be willing to give up the personal property rights that go with owning a physical copy of a work, in exchange for the convenience of being able to obtain the work immediately, and often at a lower price than a physical copy. Admittedly, I have bought digital copies of some of my favorite albums.

While there is certainly nothing wrong with digital media, and it may well be a positive good, on balance, the same cannot be said for the demise of the first sale doctrine.

The first sale doctrine allows for significant price competition in the retail market – it allows copyright owners to dictate the price of copies only when they are first sold – usually by publishers to wholesalers. Once that sale is complete, they have no control over the retail price. This means that more efficient sellers, who are able to keep their costs low, are able to sell copies at lower prices than their competitors, which provides the basis for a competitive marketplace.

Furthermore, it promotes the widespread availability of copyrighted works, even when the copyright owner has stopped selling them. Disney is notorious for this practice; they often stop selling their classic movies for several years at a time, and then re-release it as a special edition. This creates demand through artificial scarcity. Because of the first sale doctrine, it is pretty much assured that you can find a copy of any Disney movie you like, even if it is temporarily out of print. While nobody is questioning a copyright holder’s right to stop selling its products for any reason they see fit, the importance of copies already in existence being freely disseminated can also not be denied.