Eric Goldman

The unexpected copyright component is known as the "RAM Copy Doctrine". If I recall correctly, MAI v. Peak [0] was the case that established that, and it has been referenced in web scraping cases many times since.

RAM Copy Doctrine is the digital equivalent of stating that a new infringing copy of the work is created every time someone looks at something without a license from the rightsholder, since it creates a "fixed" copy in the retina.

Effectively, this neuters Feist v. Rural Telephone [1] for online purposes, because you can't use a computer to "look at" the source material in order to reference it's non-copyrightable facts.

The computer formatting that encapsulates unoriginal, Feist-style data almost automatically meets the standard of originality necessary to constitute a copyrightable work (e.g., document structure like XML tags or JSON layout), so under the RAM Copy Doctrine, just loading that small shell into RAM for any purpose, even if it's just to read out non-copyrightable facts, may well constitute infringement.

This argument has worked against many scrapers. And of course, under the CFAA, speaking to their servers without explicit permission is of dubious legality, and continuing to speak to their servers after being told to stop is certainly illegal. In most cases, both of these arguments are brought and both arguments are considered persuasive.

Eric Goldman's blog [2] usually does a decent job following cases that involve the CFAA and/or web scraping,…

Agree with everything you said, but I want to dig into why I don't find the critique compelling.

In short, I see a need for us all to inherently distrust anything single thing we read -- everything needs to be verified and checked out across multiple (hopefully diverse) sources of information before it can be considered "truth" in any sense. I do develop trust in certain sources over time, but meta-sources like an AI or a search engine don't get this treatment because their scope is too broad. As an example, I tend to trust folks like Fabien Sanglard[0], Eric Goldman[1], and Adam Langley[2].

Example: over on the Morrowind subreddit a few years ago, an artist had been painting landscapes of the game "Morrowind" (oil on canvas, IIRC), and when he went to print them as posters to sell to fans, the site he wanted to print them on warned him that printing his own paintings of vistas from Morrowind was copyright infringement (it's not). He came to the Morrowind subreddit for help because he'd been actively misled.

Sites like plagiarism.org[3] confidently say false things:

> But can words and ideas really be stolen?

> According to U.S. law, the answer is yes. The expression of original ideas is considered intellectual property and is protected by copyright laws, just like original inventions. Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file).

This is confidently incorrect in a couple…

There's a ton of hype against social media. I very strongly pegged this as Yet Another Diatribe Against Social Media. As more anger from the malcontents.

Because what scares me the most is that broadly we seem sort of complicit in these monopolies. We seem to be staying on networks we know are mind of shit. Nothing really holds us here... except the network externality, that this is where everyone already is.

And that alone bespeaks a real & significant cause worth asking for change over. I have strong doubts about government regulation of social media systems (I much prefer bluesky's layers of moderation ideas). But the network lock in seems direly bad for all, seems to lock us into a bad system.

Kanter's write-up talks about the critical importance of competition. And yes, that does seem key to me too. Maybe I might take a note from Web Scraping for Me, But Not for Thee, a guest post by Kieran McCarthy. https://blog.ericgoldman.org/archives/2023/08/web-scraping-for-me-but-not-for-thee-guest-blog-post.htm . The idea is that many services including a number of the now dominant ones rose to power by adversarial interoperability, by interfacing with other sites. But now the laws have been rewritten to protect & defend against interoperation. The new laws revoked the ideas of Carterphone vs AT&T, give the right to the neo AT&T's to deny anyone else access to the network except via approved tools. We can't use new clients, we can't connect to other systems, we can't detect…

A pretty good technical analysis of this decision is found here: http://blog.ericgoldman.org/archives/2011/07/judge_ware_goog.htm.

Professor Eric Goldman adds his comments to the end of the linked piece, including the following:

"I continue to insist that the ECPA is one of the worst-drafted statutes of all time. . . . [N]o one knows what the statute really means . . . The class action plaintiffs have gone crazy with the statute, and due to its drafting deficiencies, the plaintiffs claims are rarely clearly wrong on the surface. The result has been a huge tax on innovation with no commensurate social benefits; only the private benefits of a few privacy class action lawyers getting fat and happy while feasting on Silicon Valley companies."

The statute was passed in 1986 and is badly out of date. Judge Ware, who is a very good judge, is left to struggle with trying to determine what Congress intended when it enacted the statute 25 years ago as its text might apply to technologies that did not exist at the time. This is a difficult task at best and is not likely to lead to consistent results among the courts. Congress therefore needs to act to fix this and to set the right policy choices based on the technology we have today.

There's an analysis at:
https://blog.ericgoldman.org/archives/2022/02/a-glimmer-of-hope-that-the-copyright-claims-board-ccb-wont-turn-into-a-troll-factory.htm

> The cap likely will encourage aggressive copyright enforcers to stay in federal court and skip the CCB altogether...

> Based on this analysis, the caps (10 proceedings/year for copyright owners or 40/yr for law firms) seem to deter many potential CCB users. If the plaintiffs’ lawyers aren’t steering clients towards it, and if both the firms and copyright owners see more value in consolidating cases in federal court, the CCB will most likely cater to the copyright owner who doesn’t have a lawyer and views an occasional small claims proceeding as its best hope; and possibly the rare circumstances where a CCB proceeding will be more lucrative than a federal court proceeding (like where the owner has an unregistered copyright and would prefer the statutory damages available only in the CCB). If these become the main CCB use cases, I imagine there will be dozens of CCB cases in a year, not thousands or even hundreds, and the CCB will not be an especially important adjudicatory venue.

This is a pretty good legal analysis of the first amendment issues this raises.

https://blog.ericgoldman.org/archives/2018/03/why-fostas-restriction-on-prostitution-promotion-violates-the-first-amendment-guest-blog-post.htm

I'd point out that merely operating an interactive service provider with the intent to promote or facilitate prostitution is criminalized... if you work at a company that might get sued, you probably want to start looking for a new job.

Conspiring or attempting as well... if you talk about with intent or try to figure out a way to facilitate prostitution, that's ostensibly illegal too.

That said, the chilling effect of removing immunity under 230 is the greater concern, as it's more likely to withstand the first amendment challenge, from what I can tell. Of course that assumes that there would be such a challenge, from someone.