Vague Law – Difficulties in Drafting Legislation

I don’t envy lawmakers at all. In addition to being blamed for everything, and having an approval rating lower than practically anything else, they have to craft the language for the laws that governs us.

My criminal law professor in college ran an exercise with us where we had to draft a law. It was futile of course, as he found loopholes in everything we came up with. Socratic method at its best. And the point stuck with me.

I wanted to point out three examples of this that have been in the news recently.

DMCA Exceptions

The DMCA (Digital Millenium Copyright Act) is a section of legislation passed in order to help protect digital content. It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.

The interesting thing about this is that while copyright law provides fair use exceptions for certain actions that would be typically copyright violations – say using clips from a film in a news report – technically if you had to rip a DVD, thus breaking the locks on a DVD that prevent it from being copied, it is an illegal way to acquire that video. There is no legal “fair use” exception for DMCA.

There are certain legal exemption activities that the Copyright office reviews and states every three years, but no broad “fair use” style analysis. Only individual instances. For example, until January 2013, unlocking a cell phone was legal, even though it violated the DMCA. Not anymore.

Computer Fraud and Abuse Act

The CFAA has been in the news recently because of a person who committed suicide after being charged with the crime. The law has very strict and severe penalties, but covers very broad activities based on its language.

Section 2(c) of the language covers whoever:

“…intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains…information from any protected computer.”

You can see how this is very vague. The law was passed in 1986, and was amended several times, expanding it broad nature. So, it now covers almost anytime someone accesses a computer “without authorization”. It is basically up to the owner of the computer whether they decide to pursue.

The question comes down to what “without authorization or exceeds authorized access” means. And, as you would expect this is open to interpretation. Even different circuits of the federal courts can’t agree. The 7th circuit decided that an employee who erased an employer’s laptop before giving it back after he was fired was found to have exceeded authorized access. (International Airport Centers v Citrin), while the 9th found (in US v Nosal) that an employee who went to start his own company did not violate it when he copied the contents of his laptop including other company files, as long as he didn’t break any kind of electronic protection mechanisms. (back to the DMCA!)

Until the Supreme Court or Congress addresses this, it remains both vague and broad.

Public Performance

Copyright affords a bunch of rights to the copyright holder (in many cases this is referred to a bundle of sticks), of which they can individually give away and/or keep for themselves. Among those rights (along with others like reproduction and distribution) is the right of public performance.

But, the question is, what exactly is a public performance? Would playing a stereo in a park be a public performance? What about hosting a movie night with 3 friends? 30 friends? What if you charged? What if you streamed it online? If only one person watched? If anyone could watch?

The language of public performance is defined in the Copyright Act:

“To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. “

Never have so many words failed to clarify anything. Needless to say, much argument has been made about exactly what this means. Whether it is determining if online streaming radio stations are in public, or watching a video in a movie rental business, in the age of digital media and the internet this is only bound to get foggier.

3 thoughts on “Vague Law – Difficulties in Drafting Legislation”

  1. With havin so much written content do you ever
    run into any issues of plagorism or copyright infringement?
    My blog has a lot of unique content I’ve either written myself or outsourced but it appears a lot of it is popping it up all over the internet without my permission. Do you know any techniques to help reduce content from being ripped off? I’d truly appreciate it.

  2. I’m of the attitude that its almost impossible to really stop – at least at the near anonymous level we’re at. Once you get big enough that people would say “Oh, I saw that first over at…” then its easier to fight. But its simply not worth the effort now for small copying.

  3. I’m no longer sure where you are getting your information, but great topic. I needs to spend some time studying much more or working out more. Thanks for excellent info I was on the lookout for this information for my mission.

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