UPDATE: Microsoft apparently has withdrawn its DMCA takedown request. In any event, crytome.org is back up with the disputed document, microsoft-spy.zip, available.
Advocates of copyright reform, among whom I count myself, do themselves and their cause a disservice when they substitute wishful thinking about copyright law for the reality of what the law is.
This sort of thinking surfaced today in reactions to a dispute between Microsoft and Cryptome [links to backup copy of site for reasons that will become obvious], a site that delights in publishing documents people want to keep secret. Cryptome posted Microsoft’s internal “Global Criminal Compliance Handbook,” which details how law enforcement agencies can access information on users of Microsoft online services. The Microsoft demanded that Cryptome take down the copyright document, Cryptome editor John young refused, and Microsoft asked domain registrar Network Solutions to block the site under the Digital Millennium Copyright Act. Network solutions complied, although as is apparent from the links above, a partial backup version of the site as well as the disputed document itself remain available.
I think the blunt weapon of a site takedown under DMCA is ridiculous and the law should be (but probably won’t be) changed. As Cindy Cohn, legal director of the Electronic Freedom Foundation told ReadWriteWeb, if the issue is trade secrets rather than copyright, “You go to court, you make a case and you get an injunction. You don’t just file a form. DMCA makes censorship easy.”
Never mind that this isn’t censorship by any reasonable definition. Cohn goes way too far when she argues, “We find it troubling that copyright law is being invoked here. Microsoft doesn’t sell this manual. There’s no market for this work. It’s not a copyright issue. John’s copying of it is fair use. We don’t do this anywhere else in speech law.”
Now the paragraph I just wrote, quoting a couple bits of the ReadWriteWeb post with attribution, is an example of fair use. Posting an entire document on which someone else holds copyright is not. Fair use simply is not whatever someone wanting to use content thinks is fair. And whether Microsoft sells the document or not has nothing to do with its copyright status; with rare exceptions, such as government publications, anything created can be covered by copyright.
Microsoft acted stupidly, as corporations often do, to demand the takedown. There’s no particular reason not to make this information available to the public. But it is important to remember that the company acted within its rights. Acting stupidly is one of the rights our legal system protects.