The Attack of the $1200-an-Hour Gorilla

Someday, someone will have to explain to me what is so awesome about David Boies. He bills out at something like $1200 an hour, which ought to buy a lot of awesome. But there’s not much awesome about his strategy for suppressing the dissemination of internal Sony documents after the “Guardians of Peace” hack. You might have heard about it.

1024px-David_Boies_at_Berkman_Center

David Boies speaking at the Berkman Center for Internet and Society, where presumably he didn’t speak about either copyright or free speech. Picture by Doc Searls. Creative Commons share-alike, 2.0.

To be fair, I’m sure he’s at least a pretty good trial lawyer, but there are lots of pretty good trial lawyers. And it’s nice that he uses those trial skills in the service of unpopular clients, such as Napster, George Steinbrenner, the U.S. Government, the SCO Group, Oracle, Andrew Fastow and Al Gore1. Even the unpopular require competent legal representation. And just because he loses most of those cases 2doesn’t mean he’s a poor trial lawyer. It could be that these cases were all hard, and there’s only so much even the best trial lawyer can do with bad facts and unfavorable laws. And he was really gutty to leave Cravath rather than abandon a client. And he once defended the right to free speech when he defended CBS against Gen. Westmoreland3

But would you pay $1200 an hour for this cease-and-desist letter?4 That’s right. Mr. Boies was trying to tell media outlets (in this case, Hollywood Reporter) not to publish Sony’s “stolen information.” OK, sure, no one has any business publishing Sony employees’ social security numbers and unpublished scripts. But the other stuff, like the stuff about Angelina Jolie being “a minimally talented spoiled brat” or the MPAA’s “Project Goliath”5—that cat’s out of the bag. First Amendment and all that.

Surely, Mr. Boies knew that what he was asking the media outlets do something they mostly didn’t have to do. Lawyers sometimes do things they wouldn’t otherwise do because their clients insist. But if that’s the case, why pay a guy $1200 and treat him like a trained monkey? Wouldn’t you be a just a tiny bit interested in his advice? I’m guessing that Sony isn’t paying $1200 an hour for Mr. Boies’ brilliant legal mind. They’re paying $1200 an hour for a trained 900-pound gorilla. But even Mr. Boies can’t remake the law to suit Sony’s interests.

Name Enough Laws & One of ’em Will Stick, Right?

I’m going to leave the free-speech angle to the Volokh Conspiracy. What I want to talk about is Sony’s threats against Twitter. You see, a Twitter user, @bikinirobotarmy, has been publishing emails from the Sony Hack. As far as I can tell, he has mostly stuck to the gossipy stuff and hasn’t published any medical or other personal information, though he did publish a couple snippets from an unpublished James Bond script. Sony lawyers (before Boies was engaged) sent @bikinirobotarmy a cease-and-desist letter, which he ignored.

Sony then turned its attention to Twitter. In a letter, Mr. Boies told Twitter that, by allowing @bikinirobotarmy to publish the Sony materials using Twitter’s platform, Twitter was liable for all kinds of damage.6 He demanded that Twitter suspend @bikinirobotarmy’s account, or else Sony “will have no choice but to hold Twitter responsible for any damage or loss,” which is funny because Sony totally has a choice. The letter7 doesn’t offer Twitter anything in return, such as a release of liability, so Twitter has no incentive to comply, really.

Mr. Boies lists an impressive number of laws that Twitter is violating:
* The Computer Fraud and Abuse Act (“CFAA”)8;
* The Copyright Act;
* California Comprehensive Computer Data and Fraud Act;
* California’s Stolen Property Law;
* Uniform Trade Secrets Act; and
* California Unfair Competition Law (the dreaded “Section 17200 claim”).

Whew! If you’re able to rattle off that many laws, surely somebody has done something illegal and is in all kinds of trouble!

Well, no. Twitter doesn’t have to worry about any of these laws. Here’s why.

Copyright Claims: Doomed Fair Use and Untimely Registration

The copyright claims are the most complex, so let’s start with that. @bikinirobotarmy posted mostly gossipy stuff, though he did post two (?) screenshots from an unpublished script. Twitter took these two tweets down pursuant to DMCA takedown notifications9, which perhaps tells you all you need to know—but I’ll explain anyway.

First of all, you might be surprised that Sony can even assert copyright in the gossipy internal emails. But it can! I know, right? Copyright requires a certain level of creativity, but it’s so low that even boring emails can qualify. So long as the expression springs from your own head, and there are more than a few reasonable ways to say it, almost anything you write of any reasonable length is subject to copyright.

Of course, there’s a reason why copyright lawsuits are almost never about internal emails. They’re pretty worthless. If I took one of your emails and made multiple copies of it, what would your damages be? Even if you went to the trouble to register all of your emails with the U.S. Copyright Office (and why would you?), do you think a jury would give you anything more than the bare statutory minimum?

So, as a practical matter, Twitter really isn’t going to shake in its boots (except about the unpublished script, which it removed). It’s safe to assume that Sony never registered its internal emails with the U.S. Copyright Office10, and that there no actual damages from their publication.

The point of a demand letter is to threaten large damages unless the recipient does something. Here, there aren’t any damages, so why would Twitter comply?

Still, courts can prevent the publication of even worthless works. It’s a pretty well-worn trick: try to silence someone by claiming copyright in the material they’re trying to expose. It sometimes work because there isn’t a “First Amendment defense,” per se, to copyright infringement. Instead, the right to free expression is baked into copyright law, through fair use and the idea-expression dichotomy11. The person seeking to publish the material can still use the facts and ideas in the material, of course, but without the documentary evidence to back up her claims, her criticism will be muted.

Could Sony take advantage of this trick? No, because the trick usually also requires either ignorance or intimidation: either the person doesn’t understand her rights, or feels she must back down in the face of a lawsuit. Twitter doesn’t suffer from either disability.

@bikinirobotarmy’s publication of the Sony emails is fair use. Although they are being published in their entirety, they have minimal expressive value. They are being published in order to criticize Sony, give the public a peek at how things work inside a movie studio, and/or learn gossipy tidbits about famous public figures. Most important, there is no market for the emails at all, so the publication doesn’t interfere with Sony’s exploitation of the emails. The fact that Sony’s own motivation is to silence speech probably doesn’t help.

Trade Secret Claims: Doomed by Section 230

Sony’s next best claim is for misappropriation of trade secrets. I imagine that, somewhere in the emails published by @bikinirobotarmy, there are some trade secrets, which can extend to anything that would give a competitor an economic advantage. So, let’s assume that there is at least one trade secret, even though Mr. Boies’ letter doesn’t actually point out any.

Trade secret laws can apply to the recipients of trade secrets, but only under four specific circumstances, only two of which might apply here. First, it would apply if Twitter knew at the time @bikinirobtoarmy published the emails that he used “improper means” to acquire the secrets, and “improper means” is defined as using fraud, bribery, threats or breaches of a duty of confidentiality. Since @bikinirobotarmy appears to have received the Sony emails indirectly from the hackers, he might well not have used “improper means,” and it’s hard to tell how Twitter could have known.

Second, it would apply if Twitter learned of the trade secrets before “a material change in [its] position.” But Mr. Boies’ letter doesn’t actually tell Twitter which bits of information constitute trade secrets, so we can’t ascribe that knowledge to Twitter. But, let’s say Mr. Boies follows up with a more substantive letter, can we also say Twitter has materially changed its position? Under these circumstances, I’m not really sure.

Not that it matters, because Twitter has a stone-cold defense to Sony’s claims of misappropriation of trade secrets: “Section 230.” Under Section 230, Twitter (as a interactive computer service) cannot be held deemed the speaker, publisher or discloser of information provided by another. You can see why Section 230 is so crucial to the ecosystem of the Internet. If social-media platforms were liable for their users’ speech, they would have been sued out of existence before the could catch on.

Here, Sony’s claim would depend on Twitter’s disclosures of information uploaded by @bikinirobotarmy, so the defense applies. There is an exception for intellectual property claims, and trade secrets are usually regarded as a form of intellectual property. But, in the Ninth Circuit at least (and any claims against Twitter would be governed by Ninth Circuit law), this exception extends only to federal intellectual property laws, and trade secret is protected exclusively by state law.

The Other Claims Just Don’t Apply

Full marks to Mr. Boies for his (or his associate’s) extensive canvassing of laws that might at least fool someone into thinking they apply. But to be fooled, you’d have to deliberately not read the statutes. Unfortunately for Sony, Twitter has lawyers who can read statutes.

The CFAA flat doesn’t apply here. There are several ways to violate the CFAA, but most involve actually accessing the computer system12. Since all Twitter did was passively receive materials from one of its users, the CFAA doesn’t apply.

The same problem applies to the California Comprehensive Computer Data and Fraud Act. It applies to those who “knowingly access[] and without permission take[], cop[y], or make[] any use of data from a computer, computer system or computer network.” Thus, merely making use of the data isn’t enough. You have to also access the computer system. Twitter didn’t do this.

What about receipt of stolen property? Boies characterizes Sony’s information as having been “stolen,” but I can find no example in any jurisdiction of this crime being applied to electronic or intangible information, and nothing in the statutory language suggests otherwise. In any event, Twitter would have had to know the property was “stolen” when it “received” it.

Finally, what about California’s Unfair Competition Law? Once upon a time, this law’s breadth was such that you could plead it in almost any case involving any sort of business. But it was abused so badly that voters clipped its wings by requiring the plaintiff to show (1) that it suffered a direct injury from the alleged unfair act, and (2) lost money or property as a result of the unfair act. Sony can’t show either of these things. Anyway, even before § 17200 was reformed, Twitter’s act of simply hosting @bikinirobotarmy’s content almost certainly doesn’t violate § 17200 because it isn’t illegal or fraudulent, and Twitter and Sony aren’t competitors.

Um, Twitter Might Have Lawyers, Too.

For Sony’s strategy to work, Twitter would have to be unfamiliar with copyright law or Section 230, be unable to read statutes, or lack resources to fight even a weak case. While many small businesses might suffer from one of these disabilities, Twitter is too big and has been around too long to be caught this off-guard. Mr. Boies’ letter never stood a chance.

So, why send the letter at all? Nothing good can come of it, but something bad certainly can. You can look like a bullying fool. Worse, you can draw more attention to the speech you’re trying to suppress.13 When there’s no upside but the possibility of some downside, isn’t the correct, business-like call to do nothing?

Well, lawyers aren’t always asked to give business advice, but at $1200 an hour, Mr. Boies might have mentioned it.

Thanks for reading!