Free Speech

No "Possess[ing]" "Copyrighted Material" When on Supervised Release

Now that's being tough on crime.

|The Volokh Conspiracy |

A supervised release condition in at least two Northern District of Texas cases involving computer-based sex crimes (emphasis added), though I expect that it's been used in others as well:

In addition the defendant shall: …

not use or possess a web cam or any other hardware that allows for the exchange of video or photographs online;

participate and comply with the requirements of the Computer and Internet Monitoring Program, contributing to the cost of the monitoring in an amount not to exceed $40 per month. The defendant shall consent to the probation officer's conducting ongoing monitoring of his computer/computers. The monitoring may include the installation of hardware and/or software systems that allow evaluation of computer use. The defendant shall not remove, tamper with, reverse engineer, or circumvent the software in any way. The defendant shall only use authorized computer systems that are compatible with the software and/or hardware used by the Computer and Internet Monitoring Program. The defendant shall permit the probation officer to conduct a preliminary computer search prior to the installation of software. At the discretion of the probation officer, the monitoring software may be disabled or removed at any time during the term of supervision;

not use or possess any gaming consoles (including, but not limited to, Xbox, PlayStation, Nintendo), he/she shall not download, possess, and/or install copyrighted material, or devices, without prior permission from the probation officer ….

The problem, of course, as the Fifth Circuit put it last week in U.S. v. Montanez, is that this "would restrict Montanez from purchasing any published book at all." But that's not the half of it: It would require Montanez to get permission to pick up any newspaper or magazine, or possess any recorded music, or hang any print or poster on his wall, or receive virtually any e-mail, or for that matter write virtually any handwritten note to himself. (OK, if you want to be pedantic, Montanez wouldn't need permission to possess really old books that are now in the public domain.) Thankfully, even the prosecution agreed this was invalid, and agreed that the condition "should be narrowed to require [defendant] to obtain permission to play electronic games that allow Internet communication."

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  1. Yes, restricting all copyrighted material does seem a bit broad. So? If he doesn’t like being on supervised release, he can always go back into supervised custody until his sentence runs out, and then do whatever he wants.

    Don’t do the crime if you don’t want to do the supervised release under onerous conditions that a free man wouldn’t tolerate.

    1. James Pollock: The problem isn’t that these conditions are “onerous” — it’s that they are virtually impossible to comply outside a deserted island. Go through your home and see how many copyrighted materials you’re possessing: Every book, magazine, newspaper, CD, e-mail, letter, everything else. Check how many e-mails or letters you receive each day; for each item of mail in your mailbox, you’d have to call your probation officer before taking possession of it. For each note you write to yourself, you’d have to call your probation officer as well; is that what you want probation officers to spend time dealing with? If you’re trying to get people on supervised release to learn to comply better with the law, why impose requirements that no-one can reasonably be expected to comply with?

      1. “The problem isn’t that these conditions are “onerous” — it’s that they are virtually impossible to comply”

        Sounds pretty onerous.

        “Go through your home and see how many copyrighted materials you’re possessing”

        I’m not subject to state custody.

        ” If you’re trying to get people on supervised release to learn to comply better with the law, why impose requirements that no-one can reasonably be expected to comply with?”

        It’s easy to comply with… you make a list of the copyrighted materials you’d like to access, and you ask your PO for permission, and don’t possess them until you get clearance.

        Yes, your PO can be a dick, and say “no”. It sucks to be a convict subject to state custody or supervision, because they can limit your freedom. What’s a free man to do to avoid this? Oh, yeah… don’t commit crimes.

        1. But this restriction is even greater that those permitted in prisons. A prisoner must be allowed to write and receive correspondence, at a minimum with his attorney even if state law were to restrict everything else.

          And a letter to or from his attorney is copyrighted, as are legal filings, so this rule would prohibit you from writing a petition to the court without the prior consent if your PO.

          1. If you don’t like the conditions attached to release, then don’t accept the release.

  2. Moreover, he wouldn’t be able to install any software, whatsoever, whether to read PDFs or to read spreadsheets. Almost every piece of software he might want to install is at least new enough to be under the 1976 Act, but most would be under the Berne Act implementation, a decade later, where copyright is automatic, from the time there is fixation in a tangible medium.

    Which, BTW, why I am always troubled by the use of the word “copyrighted”. Prior to the 1976 Act, that essentially meant marking and registration, in order to gain copyright protection of a work of authorship (or a phonorecord). But, as noted above, copyright is now automatic, and the major benefits of recordation is for increased damages, and the major benefit of notice is negation of an innocent infringement defense (which makes little sense in the Berne era). So, from my point of view, “copyrighted material” is ambiguous.

    1. Sorry. Quick correction:

      “But, as noted above, copyright is now automatic, and the major benefits of recordation is for increased damages, and the major benefit of MARKING is negation of an innocent infringement defense (which makes little sense in the Berne era).”

    2. “Moreover, he wouldn’t be able to install any software, whatsoever”

      Unless you count all the software that’s in the public domain. Hint: Copyright owners can choose to expressly waive copyrights in their works, and many software authors chose to do so before general public licenses became popular instead.

      But limiting his choice of software is expressly intended, as one does not “install” other kinds of media.

      1. “Limiting his choice of software” is overly broad and the way you’ve laid it out in effective for the asserted purpose. They way you’ve delineated it, he can use any software that allows him to do what they want to prevent so long as the author places it in the public domain. So as you’ve described it he would be blocked from using software to order pizza that isn’t public domain, but could use communication software that is. How exactly does that make it better?

        1. “he can use any software that allows him to do what they want to prevent so long as the author places it in the public domain. ”

          Yeah. They did a craptastic job writing the terms of his supervised release.

          ” How exactly does that make it better?”

          How exactly did anyone claim that it was better?

      2. To my knowledge, most open-source software isn’t “public domain” in the sense that all copyright in it has been waived — rather, it is broadly licensed for many uses, but the copyright in it is still subsists.

        1. “To my knowledge, most open-source software isn’t “public domain””

          True. These are unrelated concepts. Both fall under the heading of “free” software, and are offered by generous programmers, and that’s about all they have in common. Today, most free software is offered under a general public license, which expressly retains copyright, but licenses public distribution and duplication. Before these general public licenses were developed, however, software could still be offered for free through the simple expedient of expressly placing it in the public domain. Programs in the public domain are not copyrighted works. Notice how I referred to public domain software, not software that is generally licensed to the public? That wasn’t by accident.

          1. also note that there is no copyright in works produced by the federal government. That’s another source of public domain software.

            1. Nearly all the software produced by the federal government is produced for it’s own use and is not available to the public.

              1. True enough, although “not particularly useful to the public, either” is also true, and some code is protected by things that are not copyright. The software that makes Permissive Action Link work with the B61, for example, isn’t copyrighted but WILL get you an interview in a secure facility, at the very least.

          2. This is fascinating news. My searching, alas, hasn’t really found much software that is actually public domain, as opposed to open source.

            The feds are somewhat similar – to my knowledge, they don’t produce a lot of software. AnyPIA, maybe? But that has to run on windows or MacOS, which presents a problem.

            If you could point us at a public domain OS, browser, word processor, IMAP client, or really, anything at all it would be wonderful.

            1. “My searching, alas, hasn’t really found much software that is actually public domain, as opposed to open source.”

              Open source has nothing to do with copyright. This means that you can examine the code used to produce the software, to see what functionality was actually implemented, and to search for security flaws and other coding errors.

              Your argument that you can’t find it, therefore it doesn’t exist, is amusing but doesn’t reflect well on you.

              “If you could point us at a public domain OS, browser, word processor, IMAP client, or really, anything at all it would be wonderful.”

              There’s this thing called “Google”. It isn’t public domain, but it can point you to things that are. For example, a quick Google search for “public domain operating system” offered links to PDOS, the public domain operating system.
              Might I suggest using as a search term “guide to public domain software”? This should lead you to some helpful sources… though some of them may be copyrighted.

              1. Thanks, that’s awesome! It emulates MVS and sort of DOS. It even has a zmodem application and BBS software. Party like it’s 1990! [1]

                Apparently IBM also put it’s VM operating system in the public domain a while ago. And 1980’s IBM mainframe hardware is a buyer’s market right now, so I’m all set (I was a VM sysprog for years, so it’ll be a fun trip down memory lane!). Writing a browser, email, TCP/IP gateway, etc will take a little effort and maybe some custom hardware, so it’ll be lotsa fun!

                [1]Our parolee had still better check his 1200 BAUD modem for copyrighted microcode, though, and of course BIOS code. Maybe other copyrighted microcode in all the other chips in the computer (including keyboard, disk drives, etc). That’s going to be a real research project to make sure he’s legal. Pulling apart the mouse, for example, to find all the chips, and contacting the chip manufacturers to ask about the copyright status of their chip. Or, more correctly, since he can’t possess the mouse until it’s vetted, he’ll have to hire someone to do that for him. I wonder how many keyboards or disk drives, for example, are completely copyright free?

                1. Why is your analytic ability so limited? His car’s exhaust system is chock-full of copyrighted code, and the CPU design is copyrighted, too. He’ll be so busy walking to and from work, he won’t have time to be poking around with a desktop computer.

                2. “Writing a browser, email, TCP/IP gateway, etc will take a little effort”

                  Don’t forget you have to do it in a public domain development environment, using a public domain editor, and a public domain compiler.

                  Or, I mean, and this is just a crazy, wild notion… you could ask your PO if you can install a Linux distro.

      3. Without requesting permission from his PO, he couldn’t even read the license for GNU software on his own computer to see if the software it covered was copyrighted or how:Copyright © 2007 Free Software Foundation, Inc.However, it seems he could ask a friend, relative, colleague, acquaintance , employee, or random stranger to bring it up on their phone/computer and view it there having the other individual either scroll for him or, alternatively, read it to him. If he were handed, for example, the phone to read/scroll himself, that would seem to be “possession”. I wonder though, is having copyrighted information in your head “possession”? I mean, people sometimes use terms like “she possesses the insight to solve this problem” to mean someone has the information/capabilities in their head sufficient to solve the problem.

        1. Which leaves him with the obvious answer of asking his PO to recommend which software he’s allowed to install.
          Again, the point is that if he doesn’t like having his choices limited in this manner, he’s free to remain in prison until the completion of his sentence, thereby skipping the onerous terms of supervised release.

  3. I could understand — perhaps root for — a reliance-based claim with respect to the baseball field lighting dispute, but a claim of special religion-based privilege to illuminate baseball games in a manner violating the law and bothering neighbors? That’s Cocoa Puffery (just plain cuckoo).

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