L'affaire Kozinski

Kim Zetter on Threat Level has written about Larry Lessig’s comments about Judge Alex Kozinski’s problems with having files on a personal server made public.

Zetter has asked to hear people’s opinions about the issue. I thought I’d just blog about mine.

Basically, I agree with Lessig. The major place that I disagree with Lessig is in his metaphor of someone jiggling open a lock. I think I would use the metaphor of someone pressing a camera to the judge’s window, and shooting pictures of the library through the gauze curtains. It was rude and inappropriate, whatever we might think of Kozinski as a judge. It was a privacy violation, and yes, a form of trespass. Perhaps somewhere in there it shows some hypocrisy, but privacy advocates who cheer showing someone’s hypocrisy by violating their privacy are hypocrites, too. (I am not accusing any specific people of this hypocrisy, I’m making a point.)

As Lessig and others have noted, nothing Kozinski did was illegal. Even in the case of his having MP3s, this was not illegal nor infringing, given what we know. It is completely legal in the US to make MP3s from your other media. It is not legal in the UK, nor in other countries, but he’s not a judge there. It’s also not infringing to set up a private server for family and friends.

RIAA, the MPAA, and other alleged defenders of intellectual property frequently deny that these things are legal, but if someone wants to show Kozinski’s hypocrisy by taking up those arguments, they’re essentially carrying RIAA’s and the MPAA’s water. This may be hypocrisy itself, if the people wanting to play gotcha consider themselves anti-RIAA/MPAA. It might also be simple stupidity, too. The media companies often and repeatedly advance opinions that if there were any reasonable regulation of the lawyers would get the media lawyers disbarred. Bringing those cracked opinions to bear against Kozinski only gives them credibility they do not otherwise have.

The one place I do wish to take issue with Zetter’s article is this:

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.

I’ll again note that I think I’m disagreeing with the ABA Journal, not with Zetter’s remarks on it.

No, this doesn’t imply that. The Home Recording Act specifically allows one to time-shift content, media-shift content, and to share that content with family and friends. If Kozinski’s son implemented an el-cheapo equivalent of a Slingbox or iTunes Music Sharing and there were bugs in that implementation that let a clever person make unauthorized, infringing copies of the Kozinski Clan’s media, that’s an embarrassment. I am quite certain that Kozinski fils and père are quite properly embarrassed now. Unless we’re going to move from carrying the RIAA’s water to insisting on software liability for amateur programmers (won’t the FOSS crowd love that), then let’s let it drop.

Freedom isn’t doing what you want, freedom is defending people you disagree with. I actually don’t know if I disagree with Kozinski. I do know that I agree with Lessig. Privacy is an important right, and an intrinsic right. Everyone is deserving of privacy, even judges.

Woodie Guthrie said that some will rob you with a six-gun and some with a fountain pen. It is not as euphonious to note that some will hack you with Metasploit and some will hack you with Google, but it’s no less true. I’m not going to stretch that metaphor much further, but I will note that the technological difficulty of an act doesn’t change its character. There’s good hacking and bad hacking. It isn’t good just because it was easy. Conjuring up dirt on a judge with an easy hack is conjuring up dirt a judge. Here’s Lessig:

Now imagine … some disgruntled litigant … 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.

Lessing spoke of illegal material. An infringing MP3 is not illegal material. Infringement is not theft, but even if it were, a stolen Rembrandt is not kiddie porn. Lessig understand that and that’s why he picked the exception he did.

I’m one of Lessig’s anyones. It is outrageous to violate this person’s privacy and trump up their personal quirks (like thinking they can save a few bucks and write their own media server) into imagined crimes. If you believe in the right of privacy as a fundamental human right, then you should be outraged, too. We are all deserving of privacy. Even judges. Even judges who defend copyright. Even judges whose sons write buggy software.

Those of us who believe in the right to control the media we legally have in the way we see fit, not the way the media companies see fit should be defending Kozinski. Those of us who believe that creating software should be an unencumbered right should be defending Kozinski. We need to remember which side we’re on. It’s the side of liberty, not control.

1 Comment on "L'affaire Kozinski"


  1. Freedom isn’t doing what you want, freedom is defending people you disagree with.

    That’s perfect. Thank you.
    It certainly does seem like Zetter’s “infringement” claim comes out of left-field, by someone with only a binary you-are-either-with-the-media-companies-or-against-them understanding of the law, too.

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