Intellectual Property Law

Larry Lessig Sides with Judge, Calls His Critic a Hacker

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

There have been a lot of strong reactions to the issue involving Chief Judge Alex Kozinski this week, some of them rational some of them not. One in particular that is garnering some of its own controversy is a post made by Stanford law professor Larry Lessig who has taken a stand in support of Kozinski.

He's done so using a unique argument that has met with both cheers and ridicule. Lessig says Kozinski has nothing to apologize for, since he's done nothing illegal, and blames the media and the person who tipped off the media for launching a smear campaign against the judge and for invading his privacy. Lessig further likens Cyrus Sanai, the person who found the images on Kozinski's site, to a hacker or a burglar who enters a locked house.

Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."

I take it anyone would agree that it would outrageous for someone to publish the stuff this disgruntled sort produced. Obviously, within limits: if there were illegal material (child porn, for example), we'd likely ignore the trespass and focus on the crime. But if it is not illegal material, we'd all, I take it, say that the outrage is the trespass, and the idea that anyone would be burdened to defend whatever someone found in one's house.

Because this is in many ways the essence of privacy. Not the right to commit a crime (though sometimes it has that effect). But the right not to have to defend yourself about stuff you keep private. If the trespasser found a Playboy on the table in the den, the proper response is not to publish an article reporting this fact, and then shift the burden to the home owner to defend the presence of the Playboy (a legal publication, harmless in the eyes of some, scandalous in the eyes of others). The proper response is to give the private party the benefit of privacy: which is, here at least, the right not to have to explain.

I'm curious to know what Threat Level readers think about this issue of privacy and trespassing. Do you consider someone a hacker for simply Googling a web site to uncover an unknown subdomain on the site?

I should point out that Lessig doesn't mention the MP3 files that were found on Kozinski's site, though he does mention that if any of the materials found on Kozinski's site were illegal, then the focus should rightly switch to the material and not the trespass that occurred to find it.

On a separate note, the ABA Journal, a publication of the American Bar Association, has a good story today that examines the MP3 issue, noting that Kozinski wrote the dissenting opinion in a copyright case last year in which he sided with the copyright holder in saying that credit card companies that process payment for material that violates copyright should be liable for facilitating illegal sales of copyrighted material. This would imply that if it turns out that Kozinski's site was making MP3 files available for download, he would consider himself liable for facilitating the illegal trade of copyrighted material.

Photo: Paul Sakuma/AP

See also:

• Mistrial Declared in Obscenity Case Involving Controversial Judge
• Critic Says Judge's Website Was Distributing MP3 Files, Was Target of Previous Complaint
• Judge in Obscenity Case Calls for Investigation of Himself
• Chief Judge in Oscenity Case Caught Posting Porn

Full post as published by Threat Level on June 13, 2008 (boomark / email).