<i>People</i> Magazine huh? Last publication I would have thought to be cited!

I am struck by the mismatch between the charges and the arguments. Drew is being prosecuted and defended for the charge of harassment with the intent to cause emotional harm, but she is charged with defrauding Myspace.

The entire thing is a travesty.

Lori Drew, who is accused of posing as a teen boy on the MySpace social networking website to tease and humiliate 13-year-old Megan Meier, who later committed suicide.

Interesting how Reuters gets it right with the suicide separated from the actual charge.

I also thought the quotations from the defense were strange, but it probably looks worse if emotional issues, however irrelevant to the actual charge, aren't addressed.

man from mars wrote at 11.24.2008 11:55pm:

Most jurors, especially in that venue, likely believe O.J. Simpson was improperly acquitted. Two points raised in the defense closing argument in that trial, "If it doesn't fit you must acquit" and the glove not fitting, are likely to be familiar to jurors. So I think the metaphor is appropriate here, but risky.

Hmm. Maybe "If the facts and the law conflict, you must not convict."

I'd say this is a perfect example of why the prosecutor's office should have to pay defense costs if there is an acquital.

Actually, the Myspace TOS that she's accused of violating state:
"Eligibility. Use of and Membership in the MySpace Services is void where prohibited. By using the MySpace Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the MySpace Services does not violate any applicable law or regulation. Your profile may be deleted and your Membership may be terminated without warning, if we believe that you are under 14 years of age."

Obviously, the information was NOT truthful and accurate.

And:
"Content/Activity Prohibited. The following is a partial list of the kind of Content that is illegal or prohibited to post on or through the MySpace Services. MySpace.com reserves the right to investigate and take appropriate legal action against anyone who, in MySpace.com's sole discretion, violates this provision, including without limitation, removing the offending communication from the MySpace Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to Content that, in the sole discretion of MySpace.com:

2. harasses or advocates harassment of another person;

5. solicits personal information from anyone under 18;"

I'd say that she violated those, also.

The reason that the quote regarding this scheme being designed to prey on Megan Meier ties into the whole, "harrassment" thing. They are trying to show that she went to great lengths to plan this course of action to harass this girl via Myspace, thus violating the TOS.

There's an interesting parallel between this case and the GPL (open source license) cases.

In this case, the question is whether using authorized access for an unapproved purpose is exceeding the authorization. The correct, IMO, position is that you do not exceed your authorization if you use your authorization for some other purpose than intended. You exceed your authorization if you access something you are not authorized to access. Lori Drew did not do that. If she did, then private contracts would be able to re-write criminal law, making a ToS violation a crime.

In the GPL cases, the question was whether violating the GPL was a violation of copyright law or a breach of the license agreement. The correct, IMO, position is again that if you have a license to do something, you cannot breach the copyright law by doing it. You can, of course, breach the license.

In both cases, those arguing against the positions I consider correct are trying to do the same thing -- allow private parties to make their contracts have the force of criminal law. At least in the GPL case, they only get treble damages and a presumption of irreparable harm. In this case, they get to put you in jail for uploading "bad stuff" to YouTube with intent to make someone feel bad.

I think this case just goes to show how serious the safeties are that these cases threaten. Private contracts are not written with the clarity of criminal law, and it is important that they not be given that kind of force.

David Schwartz,

I think that your analogy fails because there have been no criminal prosecutions for violation of copyright in GPL cases. Indeed, proponents of the GPL all appear to be opposed to criminal sanctions for violation of copyright. The issue in GPL cases is whether the remedies available are the civil remedies for copyright infringement.

Also note that violation of the GPL is not, strictly speaking, a breach of contract since the GPL is a license and not a contract.

Bill Poser: You are correct that these are civil remedies and not criminal. But they are extraordinary civil remedies, including a presumption of irreparable harm, entitlement to statutory damages, and so on.

As for the license/contract difference, it's a distinction without a difference. In both cases, you are given something that has attached terms that you are expected to comply with if you use the thing given. I don't see how it would change anything to argue that MySpace's ToS is a license rather than a contract.

Frater Plotter: To your first argument, I agree. If a license permits, say, distribution but not the creation of derivative works, then creating a derivative work is a violation of copyright law. In fact, that's a great analogy. Creating a derivative work is like exceeding the scope of the authorization. Failing to pay when you distribute is authorized, but not complying with the contract/license.

To your second point, well that's my whole point. There is a very similar distinction of what's a breach of a separate law and what's a mere breach of the agreement. Breaches of the agreement get ordinary remedies. Exceeding the scope of the agreement gets extraordinary remedies.

David Schwartz-

You perfectly explained why the license/contract distinction matters in the previous paragraph--because copyright law has all of these extraordinary statutory damages provisions, and contract law doesn't. In general, if you breach a contract, the court will order compensatory damages, no punitive damages, and almost never an injunction. If you infringe a registered copyright, the court will order at least compensatory and possibly statutory damages, possibly punitive damages if willfulness is shown, and almost always an injunction. Big difference in the defendant's risk.

I think your analysis of the issue is right--violations of the terms of the license are breaches of contract, going outside the scope of the license is copyright infringement.

Jenny, Yes, from what you have written, it seems very likely that Drew violated the TOS. But a criminal violation of the relevant statute apparently needs an intentional violation of the TOS.

No. The correct outcome will be a conviction followed by a dismissal on the basis that the conviction is not supported by the record of fact. Hopefully this will be appealed and the dismissal will be sustained (for the sake of establishing a stronger precedent).

An acquittal does not necessarily address the question of whether or not the law specifically addresses this sort of thing, and it could be used by the next court as a basis for siding with the prosecution in this sort of way.

As much as we all hate Drew, and as much as that would be a good legal precedent, the government's job is not to make bad, but non-criminal, people suffer for their misdeeds.

Anyway, you both forget the last step in the correct outcome: ethics sanctions on prosecutors for bringing an unjust and frivolous case solely for the sake of their own political careers.

While we are talking about stretching the law to hurt people who offend us, I'd like to bring up the travesty of a case against the Holy Land Foundation:


nytimes.com/2008/11/25/us/25charity.html?ref=us


http://blogs.wsj.com/law/2008/11/06/
holy-land-foundation-case-is-lesson-to-lawyers-pare-down/

I'm not going to say much, as it's only tangentially related to the Drew case, but I wish some VCer would take it up. If the conviction from their second trial stands, the defendants will go to jail for the rest of their lives for providing food, education, and healthcare; the argument it that helping provide the Palestinians these things strengthened Hamas, which had a hand in running these charities.

Even if you agree with the decision, it's an interesting legal matter. How far will you carry guilty by association? If you serve sandwiches at an illegal rally and later a police officer is shot, have you provided material support to terrorism?

David Schwartz:

I went to write a post about how you were wrong and ended up agreeing with you. Bear in mind I make my living writing software under the GPL v2 (won't touch v3 with a ten foot pole, but that is another matter)-- I am a software engineer, not a lawyer. The key issue in the GPL cases is whether civil infringement claims can result from ignoring the GPL copyright license. We haven't seen a case yet asking for criminal proceedings against those who violate the GPL. I suspect that this is the only major area where there is a difference.

This would be somewhat similar to the civil cases which have arisen from 18 USC 1030 which have held that telling someone not to access your resources can lead to civil claims under this title. These have often been held as valid. The question then becomes whether these sorts of civil issues regarding contracts can have the force of criminal law, particularly when those are adherence contracts (as I would argue the GPL is, in the same way terms of service are), though I suspect there may be cases in both areas where the contract has the opportunity for negotiated exception and that would of course be different.

Typically GPL violation cases tend to seek injunctive relief against the violator-- i.e. usually asking for a court order to get the new code released under the GPL. Of course this may not always be possible (for example, if the new code also is tightly bound to code licensed from a third party, GPL compliance may not be within the violator's power) so statutory damages might be sought as an alternative along with an injunction to stop distributing violating works.

I think the key issue here though is that this case represents sort of the absurd extreme that the GPL issue could grow into. I personally cannot imagine any case where I would see criminal copyright infringement charges against GPL violators as helpful. But perhaps you are right to warn of the danger of this sort of thing. We will see.

Just a few differences though in opinion with Mr Schwartz:

In the GPL cases, the question was whether violating the GPL was a violation of copyright law or a breach of the license agreement. The correct, IMO, position is again that if you have a license to do something, you cannot breach the copyright law by doing it. You can, of course, breach the license.

First you are correct in your first statement. However, courts have recently held that open source licenses can autoterminate on violation meaning that after that point, copyright infringement is helpful.

Think of it this way. Suppose I give you permission to enter on my property provided that you don't disturb my gardens, at which point, I make it clear that permission is rescinded. If you come over and disturb my gardens, perhaps I can go after you only on contract grounds, but if you later enter again, you no longer have permission to be there and that might be trespassing.

Under the GPL, this permission terminates the moment you make the first violating copy, meaning that subsequent copies made are violations of the owner's copyrights, not merely the license.

I think though one has a few problems with applying this to criminal copyright infringement-- the same vagueness problem that is present here. For example, if you read the GPL v3, does it violate the license to include software licensed under the BSD license? Everyone I have talked to says no, but the various lawyers I have had this conversation with from the Software Freedom Law Center can't agree on *why* and the differences are enough to make me worried-- the disagreement here is relatively technical and has to do with what the BSD and GPL licenses allow and require-- does the GPL v3 require changing the license of included code to match as Eben Moglen argues and does the BSD license allow this?

If it is later determined that this is a violation of the license, does that make works which do this suddenly criminal despite the fact that this was not crystal clear from the beginning? Even though this is current common practice?

On the GPL v2 we have another interesting question: does use of a software library mean aggregation (i.e. a collected or compiled work) or derivation (a derivative work)? This is a key question because it can make the difference between the inclusion of closed source libraries as legal or not.

Having said this, there are far fewer vagueness problems in the GPL cases than there are regarding terms of service and criminal sanctions for violating them. At least I can be relatively sure that the GPL v2 hasn't changed since the last time I read it and that every program that claims to be licensed under it uses the same terms. Since terms of service can be changed without notice, that is a very different perspective regarding due notice requirements.