FC: More ways I could be violating the DMCA by writing this column

[Declan McCullagh <declan () well com>]

[Gerard is an attorney at Wiley Rein & Fielding, who points out even MORE 
ways I can be liable. Thanks a lot! :) In my column 
(http://news.com.com/2010-1028-978636.html) Lee Tien points out still 
another. To answer the folks who said government documents are not password 
protected and therefore the DMCA does not apply, generally that would be 
correct. But in this case other MS Word documents that were not password 
protected on the same web page were prepared by Deloitte Consulting, as I 
noted in the column. If these documents were also prepared by a contractor, 
presumably they would be copyrighted and the DMCA would apply. --Declan]

---

Subject: RE: Will this column land me in federal prison under the DMCA?
Date: Thu, 2 Jan 2003 14:20:19 -0500
From: "Stegmaier, Gerard" <gstegmai () wrf com>
To: <declan () well com>

Declan,

I seldom post but very much enjoy politech.

Your latest rant caught my attention for several reasons.

There are a host of other statutes and laws that using a surreptitiously 
acquired password could cause one to run afoul of.

Forgetting for the moment that FOIA or some other law might enable you to 
lawfully access the documents, and that they are in effect within the 
public domain (e.g. it would be difficult to violate whatever copyright the 
government possesses), just a few of the provisions and/or laws to be wary 
of include:

1) Computer Fraud and Abuse Act;
2) Various state computer crime codes relating to unauthorized access and 
computer trespass;
3) Trespass to chattels;
4) Misappropriation;
5) Unfair competition;
6) Fraud (after all one probably would have to misrepresent who one is to 
use the password)and

a parade of other similar horribles.

Nevertheless, passwords and related authentication still have some simple 
elegance for erstwhile libertarians and free marketeers - by putting up 
what Maureen O'Rourke has referred to as "digital fences" content providers 
can choose with whom and how they do business AND at the same time content 
users can choose not to do business on those terms and conditions.

Just a thought.




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