Sony And David Boies Owe Val Broeksmit And The Internet An Apology

[Updated January 2, 2015, regarding the DMCA issues. See below.]

I used to be a fan of David Boies back when he was defending Napster, and I recall liking the guest lecture he gave at Temple Law, though I don’t remember what it was about. These days, though, like an unnecessary movie sequel, it seems he’s given up his integrity for a paycheck.

As part of the Sony hack, a huge slew of potentially embarrassing information has come to light, including a whole bunch of internal emails about, for example, why David Fincher had to direct the Steve Jobs biopic, and how casting African-Americans is inconsistent with Sony’s “fiduciary obligations to their shareholders.”

This isn’t just gossip. These are matters of public interest. See, e.g., Synder v. Phelps (2011)(“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Citations and quotations omitted.)

Sony is a major corporate conglomerate that spends millions every year lobbying Congress. (Here, for example, is just one disclosure from earlier this year in which Sony Pictures Entertainment is lobbying for preferential tax treatment and for “support of strong IP chapter in trade pacts.”) Moreover, though the term “entertainment” is thrown around as if movies were just any other business, the truth is that movies — like all forms of art — are a key part of our culture. (Yes, at that link is a picture of Lawrence Lessig standing with a very young Aaron Swartz.) At the very core of human culture is the act of storytelling; a free society has the right to discuss how its stories are told and who tells them.

Val Broeksmit is a musician who tweets at @bikinirobotarmy, and he’s been combing through the hacked Sony emails — which are now out in the public for anyone to see — and posting some of what he finds, like the above two examples.

He has the right to do that. We have a right to see those emails. They’re “confidential,” I suppose, in the sense that Sony would rather we not see them, but so what? American law really doesn’t care about damage to a corporation’s reputation, not enough to chill free speech rights. See, e.g., Doe v. Public Citizen (4th Cir., April 16, 2014); Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) (“commercial self interest” does not to qualify as a legitimate ground for keeping documents under seal). The public doesn’t have the right to hack into Sony’s emails, but, once they’re out there, they’re out there. This is part of living in a democratic society.

That’s where David Boies comes in. Sony has hired him to, well, I don’t know what. Put on a show? It seems all he’s been doing so far is sending silly letters to newspapers vaguely demanding that they not reference the Sony emails, letters which they have rightly ignored. Yesterday, he sent one of those silly letters to Twitter, asking them to remove the emails posted by Broeksmit.

It’s mostly a bunch of blather with a mere paragraph devoted to the discussion of actual laws:

The possession, use, and publishing of the Stolen Information implicates numerous federal and California state laws, including, but not limited to, the Computer Fraud & Abuse Act (18 U.S.C. § 1030), the Copyright Act (17 U.S.C. § 501, et seq.), the California Comprehensive Computer Data Access & Fraud Act (Cal. Penal Code § 502), California’s Stolen Property Law (Cal. Penal Code § 496), the Uniform Trade Secrets Act (Cal. Civ. Code § 3426, et seq.), and the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.), among others, especially when such actions are taken knowingly in furtherance of federal and state crimes committed by the perpetrators, including extortion.

You know a lawyer is talking rubbish when in a single sentence they reference six different acts prefaced by “including, but not limited to” and followed by “among others,” to make sure you know they’re still working hard to find other statutes to vaguely reference. California has a law that says frogs used in frog-jumping contests can’t be eaten, why not reference it, too? After all, it’s not like you need to explain why it applies — just cite it and move on to the rest of the threat.

It’s embarrassing: they have 240 lawyers over at Boies, Schiller & Flexner, and the whole lot of them couldn’t come up with a cogent sentence explaining why any of those laws would apply to Twitter or Broeksmit. Sitting here, I can’t see it — for example, the first law he cites, the CFAA, applies to unlawfully accessing computers, which Broeksmit plainly didn’t do, unless he actually hacked Sony himself — and I’m not going to do Mr. Boies job for him. Frankly, I’m wondering if he didn’t veer a bit close to extortion by throwing around the potential for criminal liability. As PopeHat notes, that’s unethical under the California Rules of Professional Conduct.

Like Broeksmit told the Wall Street Journal, “If this can happen to me, it can happen to anybody.” Indeed, and that’s why Sony needs to immediately apologize to him and to the Internet as a whole or explain why it thinks Broeksmit has broken the law. If Sony and Boies really think they can sue everyone who ever talks about Sony’s emails, we have a right to know that, too.

Update, January 2, 2015: Via @jaredmauch, I see Twitter removed just two tweets as a result of the threat, both of which included portions of the script to the next Bond movie. That is understandable: those scripts are copyrighted and registered, and thus subject to a DMCA Takedown Notice. The rest of the materials have not been registered with the copyright office, and thus Sony cannot file a copyright infringement claim over them. See Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237 (2010)(copyright registration requirement of 17 U.S.C. § 411(a) “is a precondition to filing a claim that does not restrict a federal court’s subject-matter jurisdiction.”) If Sony wants to file a copyright infringement claim over those emails, it needs to first register them with the Copyright Office — which will further weaken any putative claims they have to “trade secrets,” and which will also strengthen Broeksmit’s First Amendment defenses. 

Thus, we’re all still waiting for Sony and Boies to come up with a viable legal theory against Broeksmit. I’d prefer they come to their senses and apologize.

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  • Paul Valcheff

    Very interesting viewpoint, and I would tend to agree. Food for thought question: what happens in the scenario if you replace “emails” that were hacked, with “un-released musical recordings from top artists” that were stolen. Would the same arguments apply? Does that mean that sharing of private emails, once in the public domain, is equivalent to sharing of private music, once in the public domain?

    If not, then it seems we would be saying that the type of content stolen is what defines the crime. Under this logic, I can’t agree with the argument above.

    Would be interested in your thoughts.

    • Three issues.

      First, see the update I just made to the post about the DMCA issues. The hypothetical recordings you’re discussing are presumably registered with the copyright office (or would be registered before the creator started sending DMCA notices and filing lawsuits). Let’s assume Sony registers the emails with the Copyright Office, which I doubt they’ll do.
      Second, assuming the above, we need to deal with the finer points of copyright law: can the emails be copyrighted and, if so, what remedy does Sony have? Even if we assume Sony can copyright the emails as original works, the commercial value of the emails is zero, and an injunction would likely be superfluous because the information contained in those emails can still be reported, even if the emails themselves can be copyrighted. This analysis would be entirely different for the musical recordings.
      Third, that still leaves a huge First Amendment issue. The First Amendment trumps the Copyright Act, and the matters discussed in those emails are, in my view, matters of public concern. A musical recording would likely not be a matter of public concern.
      I should note here that an entire law review article could be written on the complicated issues you raise — the above is just my opinion of how the issues would play out.