Comment 10 years out: This paper was written in 1994. Many of the things described herein are no longer true (Playboy now has its own website, and the Dead are no longer on tour, for example). This page is preserved here as an historical document, a snapshot, if you will, of the pioneer days on the 'web.

 

Law, Ethics, and Society on the Information Superhighway


Table of Contents


The 'Net - an historical perspective

Here are some other tidbits of 'net history.

The LaMacchia Case


(From The Tech, April 15, 1994)
 

What happened

For a more complete description of events surrounding the LaMacchia incident, search The Tech's archive's for the keyword LaMacchia.

In late December 1993, a computer user in MIT's Student Center Athena cluster noticed an unattended workstation making frequent disk accesses. The student, who was not identified in any subsequent article about this case, brought this unusual activity to the attention of MIT's SIPB, the Student Information Processing Board. SIPB in turn reported the incident to MIT's Information Systems staff, which began monitoring the workstation. Eventually, the IS staff decided to contact federal authorities. According to Kenneth D Campbell, director of the MIT news office, "We became aware sometime in December that a computer was being used to distribute software... That information was turned over to Campus Police and the FBI. MIT personnel cooperated with the FBI in the investigation."

According to the indictment for wire fraud subsequently filed against him, MIT undergraduate David LaMacchia had used Athena hardware to establish a bulletin board for the purpose of copying and distributing copyrighted software. He had also posted several "README" files on the board asking for various copyrighted software, and cautioning users to be wary of alerting "net.cops" (network administrators and other authorities). The bulletin board, accessible internationally via the Internet, had at one point been contacted by approximately 180 computers in a 16-hour period. According to the indictment "As a result of the conspiracy and scheme to defraud, losses from the illegal distribution of the pirated software are estimated to exceed one million dollars..." 

What really happened

Additional documents can be obtained from the archives of The David Lamachia Legal Defense Fund.

LaMacchia's supporters on the Internet and in The Tech have come to his defense with everything from the possibility that his "README" files were counterfeited to the assertion that software without supporting documentation and support is almost worthless.

LaMacchia's lawyers have brandished the constitutional guarantee of freedom of speech (and publisher's rights), the unlikelihood of the courts being able to reasonable apply wire fraud statutes enacted in 1952 to the operation of an Internet BBS, and the assertion that LaMacchia is being used as a sacrificial guinea pig on the altar of case law. This last objection is in keeping with the U.S. Attorney's comments on the case:

The pirating of business and entertainment software through clandestine computer bulletin boards is tremendously costly to software companies, and by extension to their employees and to the economy. We need to respond to the culture that no one is hurt by these thefts and that there is nothing wrong with pirating software.... In this new electronic environment it has become increasingly difficult to protect intellectual property rights. Therefore, the government views large scale cases of software piracy, whether for profit or not, as serious crimes and will devote such resources as are necessary to protect those rights.
This intersection of LaMacchia's lawyer's and his prosecutor's comments on his case spotlight the real issue, and the ethical dilemma now faced by the denizens of cyberspace. 

What really really happened

LaMacchia knew his actions were illegal in some sense of the word. His warnings to users (in the README files on the BBS) about not discussing the site address on IRC (Internet Relay Chat, a real-time public forum) make this clear:
***URGENT***
This is the second time I've caught some luser publicizing the site address on #fsp over IRC. And since I don't use it that much, I don't even want to think about how much of this goes on. Think you guys: this is what leads to a site getting purged, especially when you go around spitting out site address to whomever (especially since I was warned that two of those online at the time might have been net.cops). If you're tempted to give out the site: DON'T DO IT. If this keeps happening that two things will happen (1) this site will close and (2) its new incarnation will be private. So think about it, ok?
LaMacchia most likely expected that the authorities he would offend would be MIT's own system administration, not the federal government. He also probably expected that his worst punishment would be wiping of the files on the BBS, and perhaps loss of his own Internet access privileges.

This was not an unfounded belief. As a long-time inhabitant of cyberspace, I have seen federal prosecution of electronic mis-behavior only in the last few years. Before that, the worst punishment a user could expect was loss of access -- a banishment meted out at the discretion of the user's own System Administrator.

What caught David LaMacchia was the changing demographics of the Internet, and the clash between what is considered crime in cyberspace, and what is considered crime in federal court.

Internet users are now faced with two sets of cultural norms - that of the "old-timers", who still think little of sharing copyrighted material (ranging from source code to Playboy centerfolds), and that of the "newbies", who take their code of behavior from the real world, often without a full appreciation of the subtleties and implications of electronic communication. By the old ethics of the Internet, LaMacchia committed a harmless schoolboy prank. And while the ethics of the newbies may be more acceptable in court, they do not serve the cyberspace community nearly as well. 

What FINALLY Happened

The judge's decision.

If you don't want to read the whole thing, just look at the title of the URL


There Goes the Neighborhood - the Cantor and Siegal Incident

Then came the churches
Then came the schools
Then came the lawyers
Then came the rules

On April 14th, 1994, Phoenix immigration lawyer Lawrence Siegel (of the firm of Canter and Siegel) posted an advertisement to 5000 Usenet newsgroups, offering to help aliens fill out a form for the upcoming green card lottery. The response from the net community was overwhelming -- the computers at indirect.com, Siegel's Internet access provider, were repeatedly crashed as over 30,000 angry mail messages were received by their system.

The system administrators at Indirect responded as expected - they shut down Canter and Siegel's account. The response by Canter and Siegel was unprecedented, however. They threatened to sue.

"There's nothing illegal about what we did," insisted Laurence Canter... (quoted in an article in The San Jose Mercury News)"We did something new," added Martha Siegel. "We understand when you do something new, it's controversial. But just because it's controversial doesn't mean it's wrong."

Most Internet users would disagree with Martha Siegal's assessment. What Cantor and Siegel did was not "illegal", but it was most certainly "wrong". As a long-time net user quoted in the same article stated:

"This shows a wanton disregard for what people have established as acceptable use...It's like attacking the president. You just can't do that."

According to a subsequent article in the New York Times Cantor and Siegel found another Internet access provider, and are planning to assist other businesses in advertising via Usenet. They have stated that they will ignore the newsgroups already established for business transactions (the biz.* hierarchy, as well as a pending market hierarchy) and continue "spamming" non-commercial forums. And Usenet users have vowed to continue retaliating.

After getting thrown off three other systems, the couple created its own home page on the 'web...

Will an influx of junk mail make the net unusable? Probably not -- Usenet posters have been prophesying the imminent death of the net, for one reason or another, for almost a decade. So far, no one has overgrazed the common. Has cyberspace culture changed irreversibly in the last few years? Yes, it has. 


The Final Frontier

We do not really understand how to live in cyberspace yet. We are feeling our way into it, blundering about. That is not surprising. Our lives in the physical world, the "real" world, are also far from perfect, despite a lot more practice. Human lives, real lives, are imperfect by their nature, and there are human beings in cyberspace. The way we live in cyberspace is a funhouse mirror of the way we live in the real world. We take both our advantages and our troubles with us.
Bruce Sterling wrote those words in the introduction to The Hacker Crackdown four years ago. The driving force for the invasion of cyberspace then was the growing availability of cheap personal computers, and the steadily increasing population curve as universities and businesses linked into one network or another. The curve is being driven harder now -- both by the mass of the information available via the net, and by the introduction of graphical user interfaces for information access. Users don't need to understand anything about computers to enter cyberspace anymore. Perhaps that is why so few of them understand the limitations of the systems they use. Or perhaps the second wave of immigrants never respects the landscape the way the first pioneers did.

What the Internet is experiencing now is not death throes, but culture shock, as the hackers and the suits try to find a way to co-exist. Cyberspace's overwhelming population explosion is posing a threat to each side -- business is having an increasingly difficult time controlling its intellectual property, and the denizens of the net are having an increasingly difficult time controlling their signal to noise ratio. Because cyberspace is so easy to access and so difficult to control, it has become a medium of exchange for everything from bootleg software to erotic videos to gambling games. Those who think that the net's greatest impact on intellectual property rights will come from software pirates, however, are taking the short view. 

Copylefts

Picture a bright blue ball that's spinning, spinning free,
It's dizzy, with possibility ...

The Free Software Foundation's "copyleft" gives users permission to freely copy and distribute the FSF's software, including Emacs, provided they do not make a profit from it. While this particular distribution scheme may be dismissed as a political gesture from a somewhat eccentric organization, the practice is spreading. Pretty Good Privacy, a message-encryption system, is available off the shelf for money, or electronically for free.

Software is not the only thing to be copylefted. Music by The Grateful Dead can be purchased in stores, or recorded (with The Dead's permission and access to their sound equipment) at any of their concerts. And books have begun to be copylefted as well.

The hardcopy edition of The Hacker Crackdown is published by Bantam Books, and is protected in the usual manner:

No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher. For information address: Bantam Books.
The electronic version, however, is copylefted (by the author):
You can copy this electronic book. Copy the heck out of it, be my guest, and give those copies to anybody who wants them...You can upload the book onto bulletin board systems, or Internet nodes, or electronic discussion groups. Go right ahead and do that, I am giving you express permission right now. Enjoy yourself.
The impact that the spreading use of copylefts will have on business remains to be seen. I doubt it will destroy the marketplace, however. Users who want support for the Free Software Foundation's programs must buy it from Cygnus, which is a for profit company. There are always things to sell. The real impact (and the purpose) of a copyleft is to insure that control of a product continues to belong to the creator. It is this concept, coupled with the power of cyberspace, that will change things the most. 

Freedom of the Press Belongs to Those Who Own One

Electronic media make copying and disseminating information easy. But not all creators wish to keep their information from being disseminated.

Publishers publish to make money. This means publishers create jobs for editors, printers, and publicists. It also means that what publishers believe will not sell widely will not be given the chance to be sold at all. Authors may write to make money. But they may also write because they have something to say, regardless of whether or not it jibes with popular tastes, opinion or beliefs. Books are available on the net now (as well as articles, puzzles, and works of art). No publisher signed off on whether or not they would sell.

For example ...
Yes, but...

This Machine Kills Tyrants

Electronic media make copying and disseminating information easy. As a result, cyberspace poses a substantial threat to those who wish to keep others from copying and disseminating information.

Those who would violate human rights rely on secrecy -- particularly in this interdependent world, where economic survival may depend on not offending the sensibilities of your trade partner's electorate. Did faxed photos of the Tiananmin Square Massacre change the way China did business? Probably. Did shortwave radios and laser printers help foil a coup attempt in Moscow? Yes, they did. And countries where typewriters used to be illegal are now flooding onto the net.

Yes, but...
Yes, but (international)
Yes, but (american style)

Perhaps it's not only the future of cyberspace at stake anymore.


(written in 1994. do not expect these links to work)

Other Resources