"Illegal content" (Re: Megaupload.com seized)

Fri Jan 20 18:46:51 UTC 2012

Carsten Bormann <cabo at tzi.org> wrote:
>On Jan 20, 2012, at 11:25, Robert Bonomi wrote:
>
>>  Public distribution without the permission of the copyright owner is
>>  illegal.
>
>This is veering off the purpose of this list, but maybe it is operationally s
>This is veering off the purpose of this list, but maybe it is operationally s
>ignificant to be able to use the right terms when a law enforcement officer i
>s standing in the door.

>The point is important because a lot of idiots are running around shouting "h
>e had all this copyrighted material on his computer!".  Of course he had!  Th
>ere are very few computers that don't carry copyrighted material, startinug f
>rom the BIOS.

By law, _EVERYTHING_ stored on a computer is copyrighted.  Whether it is 'in
memory', or on some more 'durable' media (disk,tape, etc.) the material has
been 'fixed in a tangible medium of expression', and is thus covered by
copyright. Copyright is automatic, and occurs when anything is first 'fixed'
as described.

>               Without examining the legal context, such as purchasing histor
>ies, supreme court decisions etc., it is sometime really hard to say whether 
>all of it got there in a legal way, and its presence may be an indication of 
>previous illegal activity.  But (at least wrt copyright law) it is never ille
>gal while sitting somewhere on a computer.

Sorry, but the last sentence is simply _not_ true.  If the making of the
copy was a violation of 17 USC 106 (1) or (2), it's existance is proscribed
by law.  if it is, by virtue of 'sitting somewhere on a computer', being
'offered to the public' [without benefit of express permission for that
activity from the copyright owner(s)], that is a violation of 17 USC 106 (3),

>So the next time somebody says "illegal content", think "hate speech" or "chi
>ld pornography", "lese-majeste" or "blasphemy", not copyrighted content.  Alm
>ost everything on a computer is copyrighted.

Repeating: not 'almost everyting', but _absolutely_ everything.

Nitpicking again, but the original references were to computers with 'illegal
content' on them, and _not_ "files containing illegal content".  A file, or
other document, can be 'illegal', by reason of a 'making' in violation of 
17 USC 106, or because it is being 'offered to the public, in violation of 
the same law, without the content of the file being illegal.  Thus, content 
on a computer can be legally proscribed  -- for reasons not involving the 
'content of the content' as it were. :) 

Responsible (in _all_ meanings of that word :) parties are strongly advised
_not_ to rely on any opinions expressed by any individual here, and to 
professionally consult competent legal counsel with expertise in this specific
area for an authoritative opinion.  