[Politech] More on Barney lawyer yearning to hack copyright infringers' sites [ip]

From: Declan McCullagh (declan@private)
Date: Wed Oct 19 2005 - 10:37:55 PDT

Previous Politech message:

-------- Original Message --------
Subject: Re: [Politech] Barney lawyer recommends court orders to hack 
copyright infringers [ip]
Date: Tue, 18 Oct 2005 07:05:38 -0400
From: H. Brower <hb003@private>
To: Declan McCullagh <declan@private>
References: <43548965.9050802@private>

I am not a lawyer, but as a former manager of an ISP this seems like a
really bad idea.  Many other sites may be on the same server as the alleged
infringer, and a court sanctioned 'hacking' attack could take them all out.

And if the hackers are unable to crack into the targeted web server, they
might try a Denial of Service (DOS) attack instead.  In that case the entire
ISP network could be taken down.

I would think that any 'collateral damage' caused to innocent parties under
such circumstances would open both the lawyers and their clients to
substantial legal jeopardy.  So taking out an entire ISP might cause
"Barney" to have a new owner after the ensuing trial....

Legitimate ISPs do respond to DMCA takedown notices, although maybe not as
fast as some legal eagles would prefer.  But if somebody is hosting a web
server on their home broadband connection, the ISP can't just turn off the
offending website without killing the entire connection.  And what should
the ISP do if the customer doesn't answer their phone or respond to warning

There is a presumption of innocence here, so should they be killing peoples
internet connections every time some trigger-happy litigator sends out a

Hugh Brower

-------- Original Message --------
Subject: RE: [Politech] Barney lawyer recommends court orders to hack 
copyright infringers [ip]
Date: Tue, 18 Oct 2005 16:24:15 -0500
From: Brad Trusty <politech@private>
To: 'Declan McCullagh' <declan@private>


I feel this is a very dangerous slippery slope being proposed here.  The
potential for abuse by large corporations or political parties is just too
much to fathom.  The current methods may be slow at enforcement, but I would
rather see that than a wholesale change in the direction of hack first,
prove your case later.


-------- Original Message --------
Subject: Re: [Politech] Barney lawyer recommends court orders to hack 
copyright infringers [ip]
Date: Tue, 18 Oct 2005 11:40:02 -0400
From: Jack Lloyd <lloyd@private>
To: Declan McCullagh <declan@private>
References: <43548965.9050802@private>

A denial of service attack won't be effective. For one thing, it would
cause collateral damage all across the network, including potentially
thousands of (innocent) users. The ISPs won't like it (most ISPs would
probably shut you off regardless of any court order you might claim to
have - all they will know is that you are causing them problems), and
unless the court order can protect you from civil suits from the
affected ISPs and users, it won't be worth much. And single-sourced
denial of service attacks are easy to stop (you trace them back, call
the ISP that it is coming from, and they kill the source); if you want
to be effective, you need hundreds or thousands of sources with
spoofed IPs, and that almost certainly means zombie nets.

A lot of the same arguments with regards to collateral damage also
apply to breaking into the machine and destroying the site, as it is
typical for many sites to be hosted on a single machine. Unless the
attacker is very selective, I don't see how this could possibly work.


-------- Original Message --------
Subject: Re: [Politech] Barney lawyer recommends court orders to hack 
copyright infringers [ip]
Date: Tue, 18 Oct 2005 15:07:33 -0700
From: Thomas Leavitt <thomas@private>
Organization: Godmoma's Forge, LLC
To: Declan McCullagh <declan@private>
References: <43548965.9050802@private>


  This is moronic beyond belief:

a) despite what this idiot may imagine, not every site is vulnerable to
being "hacked".

b) while it may be true that, with enough processing power, every site
is subject to a DOS attack, the side effects (on other sites hosted on
the same machine, or network, or on the network between the hacked site
and the attack source) of that would probably induce more damage than
the "benefit" to be gained by taking the target site offline... in fact,
I'd venture to guess that the attacker would assume a rather significant
liability risk themselves as a result.

Would it be legally tenable to cut the power to an entire Mall with
eighty stores in it, in order to block sales of "replica watches" from a
kiosk inside? I hope not.

c) there are obvious ways around this, anyway... the individuals being
attacked could simply set up more sites than could ever be
cost-effectively "hacked". I can almost guarantee this is what would

d) there is a failure to understand the nature of the technology
involved - if I, as a web hosting provider, host a site that is attacked
on a system that serves more than one customer, or that I administer
directly, the "attacker" is attacking *MY PROPERTY* and threatening the
integrity of *MY MACHINE* - the attack is far more likely to exploit
some hole in the general operating system code (although I'd hope my
system was up to date and tied down enough to not be vulnerable) than it
is to exploit some flaw in the customer's code (if, in fact, they have

If I have a tenant who is selling replica watches from an office inside
my building, should the police be able to break in through the property
manager's bathroom window in order to get to him?

Thomas Leavitt

-------- Original Message --------
Subject: RE: [Politech] Barney lawyer recommends court orders to hack 
copyright infringers [ip]
Date: Tue, 18 Oct 2005 09:57:23 -0400
From: Lamb, Christopher <CJ.Lamb@Montgomery-Ins.com>
To: Declan McCullagh <declan@private>

It always amazes me that someone trained in the law could have this 
mentality (and there are always a few).  The idea is so moronic, I feel 
like Lewis Black going into one of his rants (but definitely with the 
lack of humor).  Does he think only the "good guys" will use these 
tools?  Is he na´ve enough to believe they won't fall into the "wrong" 
hands?  That doesn't even begin to touch the surface regarding ethics of 
hacking (regardless of what he intends to call it).  An apt analogy 
would be to call murder, "self defense before the assailant has a chance 
to attack."  Of course, that's going to the extreme on the other side...

I am 100% against these scammers getting away with the things they do on 
the Internet.  And I would be 100% for stronger laws regarding 
items/services bought/sold over the internet.  But I am 100% against any 
kind of vigilante justice.  And that is exactly what Mr. Carlin's answer 
is - he as much as says the court is powerless.  So, he asks for the 
power to act himself.

Best regards,
CJ Lamb

-------- Original Message --------
Subject: Re: [Politech] Lawyers for Barney the dinosaur try to rid Net 
of offensive images [fs]
Date: Tue, 18 Oct 2005 09:46:10 -0500
From: Jim Davidson <davidson@private>
To: Declan McCullagh <declan@private>

Dear Declan,

Isn't satire of a public figure accepted as protected
speech?  Given Barney's role in corrupting the minds
of young people into all sorts of socialistic drivel,
he's a public figure who deserves to be mightily lampooned.
Or, harpooned.

 > Web sites displaying less-than-flattering images of the
 > plump saurian.

How are unique and original works of art depicting various
purple dinosaurs in any way the copyright property of
Lyons Partnership?  These aren't the depictions of Barney
that the Lyons Partnership copyrighted, but are depictions
of Barney being evil, malicious, socialistic, imperialistic,
pro-government, pro-idiocy, or doing obscene things to a
cat with a fork.  The idea of a purple dinosaur is nothing
new nor unique to Lyons Partnership - purple skin was
seen on several dinosaurs in picture books I read in the
1970s, and I had a collection of life-like model dinosaurs
that happened to be made of purple plastic parts.  That
was okay, because Testors made many fine paints in various
shades that could be slapped on the finished product.

This whole notion that Lyons Partnership owns all conceivable
images of fat, stupid, lumbering, idiotic dinosaurs is
wrong and, frankly, evil.  It is just one of those, "We
ought to do something" reactions which inevitably go
against freedom of speech, freedom of expression, freedom
of the press, and the right of the individual to have
thoughts in his head as he pleases.

As for this Carlin character's idea of hacking on court
orders, one would hope he only hacks within the jurisdiction
of the court.  Hack offshore in someone else's jurisdiction
without a corresponding court order, and there will be
trouble.  And, of course, he who hacks invites hacking.
If Carlin thinks he has trouble keeping his web sites
operational *now* boy will he lament it when he starts to
attack other people's sites.

Given the many difficulties that would likely arise from
this "hacking on court orders" proposal, it might be well
to take a tip from Hippocrates and say, "First, do no
harm."  Breaching the security of a third party's web
hosting service in order to attack a second party who is
selling trademark fakes against the wishes of the first
party is no way to uphold the rule of law.



-------- Original Message --------
Subject: Re: [Politech] Lawyers for Barney the dinosaur try to rid Net 
of  offensive images [fs]
Date: Tue, 18 Oct 2005 16:31:07 -0500
From: Parks <dparks@private>
To: Declan McCullagh <declan@private>, politech@private

At 5:22 AM -0000 10/18/5, Declan McCullagh wrote:
 >Representative excerpt from one letter sent last week by Matthew Carlin
 >of Gibney, Anthony and Flaherty, LLP
 >    "It has come to the attention of Lyons Partnership that you are
 >operating a web site found at URL: www.dustyfreet.com/evil/enemy.html.
 >Your web site contains copyrighted Barney images.

Hi Declan: www.dustyFEET.COM.... is the real address. I thought parody was
protected by fair use.

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