Who’s Afraid of ProCD?

It’s a prevalent meme in contemporary copyright scholarship that the public domain is being “enclosed” by expansions in copyright law. Scholars point to many examples of this alleged expansion, including term extension, anticircumvention laws, and court decisions rejecting certain attempts to claim fair use. But one widespread source of complaint among copyright scholars is the idea that contracts are somehow being used to expand copyright owners’ rights. And the chief villain in this story is the decision that allegedly started it all, the Seventh Circuit’s own ProCD v. Zeidenberg, authored by Judge Frank Easterbrook.

I should note right off the bat that I am not quite so enamored of form agreements as Judge Easterbrook is. That much I probably share with my fellow copyright specialists. But I’ve come to the tentative conclusion that the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory. ProCD–with the exception of one overlooked wrinkle–is not the threat everyone seems to think it is.

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Court Finds First Amendment Right to Forge E-Mail Headers

On Friday, the Virginia Supreme Court handed down its revised decision in Jaynes v. Commonwealth, an appeal of a criminal conviction under Virginia’s anti-spam statute. The defendant, Jeremy Jaynes, was at the time of his arrest one of the most prolific spammers in the world, sending at least 10 million e-mails a day using 16 high-speed data lines, according to prosecutors. He used his e-mails to sell dubious software products, raking in $400,000 to $750,000 per month.

Jaynes argued that Virginia’s anti-spam statute violated the First Amendment. The statute prohibits sending “unsolicited bulk electronic mail” after having intentionally falsified the e-mail header information, i.e., the information indicating the source of the e-mail. That’s a little different than your average spam statute, which typically prohibits only “unsolicited commercial e-mail.” According to the unanimous Virginia Supreme Court (four members of which switched their votes on rehearing), prohibiting non-commercial bulk e-mailers from forging the header information violates the First Amendment right to speak anonymously.

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Do People Who Investigate Websites Need P.I. Licenses in All 50 States?

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The techie blogosphere is abuzz with the news that Michigan amended its private investigator licensing laws in May to add “computer forensics” to the list of activities that require a P.I. license in Michigan. This may not sound like big news, but it raises the possibility that MediaSentry, a company that gathers information on peer-to-peer filesharers for use in the RIAA’s lawsuits against online infringers, may be violating the law in several states. Given the general antipathy to the RIAA among the technorati, suddenly a large number of bloggers are interested in the arcane details of P.I. licensing requirements.

But the issues raised by the law go well beyond the RIAA lawsuits, and potentially affect any investigation of online misbehavior. Any lawsuit against an anonymous online individual begins with an attempt to identify that person. Furthermore, the definition of “computer forensics” in the Act is so broad that it includes printing out a web page for use in a lawsuit. Attorneys need to pay attention here too: the Michigan law exempts attorneys, but only if they are “admitted to practice in this state.” And other states have similar laws. So do you need a P.I. license or a bar admission in all 50 states before you can sue that defamatory blog poster?

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