Hacker’s Revenge
In 1994 programmer Brian Corcoran was convicted and sentenced under Wisconsin’s computer crimes law for the willful destruction of computer data. His conviction was upheld on appeal by both the Wisconsin Court of Appeals and the United States Court of Appeals for the Seventh Circuit. Both courts made correct decisions, although their failure to grasp many of the technical details of the case somewhat weakened their judgments and could have opened the door to clever formalist arguments in defense of Corcoran. Corcoran, however, chose to represent himself and failed to make such arguments. This is fortunate, because he clearly broke the law, and the law which he broke was constitutional. A careful reconstruction of what occurred, including details glossed over by the lower courts, will make this evident.
Mueller Consulting Services (MCS) hired Corcoran in the spring of 1987, thus initiating what would prove to be a short and contentious relationship. The lower court opinions do little to illuminate the nature of this relationship. According to State v. Corcoran, Corcoran was hired “to write specialized application programs to manage data for MCS in time to prepare a report on May 15th.” There is no record of what sort of business MCS engaged in, what Corcoran’s programs were intended to do, what the contents of the planned report were, or if the report was ever created. But one can make some educated guesses about the purpose of Corcoran’s programs based on what little is known.
The programs were implemented as macros for Lotus 1-2-3, a very popular spreadsheet program at the time. A macro is an abbreviation for a longer set of program commands, which can be run when a data file is opened or at a specific time. Since the Lotus 1-2-3 program commands included things like moving the cursor, showing lists of options, and taking input from the user, they were often used to create interfaces for data entry. It appears that the macros which Corcoran created for MCS were used in this way, since there are several references to MCS inputting data into Corcoran’s programs. It is important to understand, however, that the purpose of such a macro is to automate the process of creating, in a uniform way, Lotus 1-2-3 spreadsheet files from data entered by users. The data are not “inside” the macro, any more than name, address, and credit card data one types into a Web form are “inside” that form after it is submitted. The form, like the macro, is simply an interface.
Corcoran’s macros may also have been used to process the MCS spreadsheet files into reports. Lotus 1-2-3 came with a program for creating graphs and charts, and was often used for creating reports from spreadsheet data. The fact that Corcoran was asked to finish his programs in time to prepare a report due May 15th would seem to support this. Again, however, it is important to distinguish Corcoran’s programs for processing spreadsheet files into reports from the spreadsheet files and reports themselves. The latter would have been the inputs and outputs of Corcoran’s separate programs.
Corcoran’s contract specified that he would not be paid for his work unless he produced fully functional programs. It seems that his programs were not fully functional, although the nature of the programs’ problems, like their functions, is unknown. Corcoran v. Sullivan says only that “his work was full of errors.” Rather than risk not being paid, he decided to resort to extortion. Sometime between August 1 and August 10, 1987, he modified six of his macros so that they would execute the necessary commands to delete themselves at 12AM on August 11, 1987. He also created another macro that when run would delete two 1-2-3 spreadsheet files, PONQTR2.WK1 and PAYROLL1.WK1, containing restaurant reviews and restaurant reviewer payroll data respectively. This macro was inserted in another 1-2-3 file, PONQTR1.WK1. It is not clear whether Corcoran made these modifications before or after he demanded his full payment plus an additional $1500 from MCS, but in any event the modifications were intended to enforce his threat to destroy the programs and their associated data in the event that MCS did not pay. MCS refused to pay, and so Corcoran delivered on his threat. The macros deleted themselves as scheduled, and the data-deleting macro achieved its purpose when it was run by Mary Mueller while following Corcoran’s written instructions. Although the exact course of ensuing events has not been recorded, it seems that after realizing what had happened MCS called the police, who arrested Corcoran.
The lower court opinions demonstrate that information technology in general, and spreadsheet programming in particular, lay outside the judges’ areas of expertise. The opinion of the first appeals court calls Corcoran’s macros “specialized application programs.” But Corcoran’s programs were not really standalone applications: they were interfaces for the Lotus 1-2-3 application, created to automate repetitive tasks. His logic bombs were incorrectly characterized by the judges and counsel as “Trojan horses.” More worryingly, the court is distracted by the details of how the “delete” command is implemented in DOS. One wishes that they had paid as much attention to the details of Corcoran’s programs. Their inability to distinguish among the various layers involved in software programming leads them to take at face value Corcoran’s claims that his programs “reduced the ‘raw data’ into electronic signals” and “positioned the data in memory.” These tasks are handled at the physical layer and OS layer of a computer—not by spreadsheet macros. The opinion of the federal court avoids such obvious blunders, but still shows a lack of clear thinking about how computer programs operate by claiming that Corcoran “embedded” MCS data in his programs. The federal court opinion also conflates the two separate logic bombs Corcoran created, and generally seems uninterested in the details of the relevant events.
While these sorts of mistakes may be understandable, they could have had serious consequences. For instance, a judge lacking fundamental knowledge of how an operating system works might be fooled into thinking that Corcoran purposefully engineered his logic bombs so that they would only “hide” data files, by removing their names from the file allocation table and declaring that the disk space they occupied to be free. This judge might then conclude that Corcoran didn’t actually intend to destroy the files, and that the destruction was the really the result of subsequent data entry by MCS employees. Such an interpretation of the events is laughable to someone who knows that this is the standard way that operating systems delete data. Corcoran’s logic bombs worked this way not because he skillfully engineered them to do so, but because he most likely didn’t have any other way to do it: he was limited to the macro commands offered by Lotus, and Lotus was limited to the DOS APIs exposed by Microsoft.
Fortunately Corcoran was unable to exploit the lower courts’ lack of information technology expertise to get himself off the hook. He presented a grab bag of arguments intended to show that the Wisconsin computer crimes statute was unsound and unconstitutional, and that his conviction was therefore illegal. Most of these arguments, such as his claims that the Wisconsin statute is vague and that it violates constitutional equal protection provisions, are entirely specious. Some of his arguments, however, deserve closer examination. Corcoran claimed copyright in both his spreadsheet macros and the data input to and output from those macros. He further claimed that the rights thus granted to him under the federal Copyright Act preempted enforcement of the Wisconsin computer crimes statute, and that the statute deprived him of his right to repossess his property.
Corcoran’s claims of copyright in his programs were sound. He was not an employee of MCS, and MCS did not specify in his contract that his macros would be considered “work for hire.” Although the details of Corcoran’s contract with MCS are unknown, the fact that the State of Wisconsin was willing to concede that Corcoran held the copyright for the programs seems to indicate that this is the case. Thus, as in Aymes v. Bonelli, the programmer retains copyright in his programs. But Corcoran’s rights to his programs go beyond copyright. Corcoran is also the rightful owner of his programs. MCS declined to purchase the programs from Corcoran, as they were not fully functional. Contrast this situation with Aymes v. Bonelli, in which Judge Altimari determined that although Aymes held the copyright to the program which he wrote for Bonelli, Bonelli was the rightful owner of the program because he bought it from Aymes. Corcoran, on the other hand, failed to sell his programs to MCS and thus retained rightful ownership.
Judge Posner, in the federal court opinion, ignores this fact completely with his analogy of the author who claims the right to tear up copies of his book, even if they have been purchased by a reader. A more suitable analogy would be an author who is allowed to use a reader’s office to write a book claiming the right to tear up his manuscript if the reader declines to purchase the book when it is finished. The reader could not claim ownership of the manuscript solely on the basis of the fact that his typewriter was used to produce it. Likewise, MCS cannot claim ownership of Corcoran’s programs just because their computer was used to create them.
But Corcoran still may have strayed outside his rights when he modified his programs to destroy themselves. The right of repossession, while generally accepted for material goods like automobiles, is still quite controversial when it comes to software products. Even the Uniform Computer Information Transactions Act (UCITA), a uniform law strongly biased in favor of software creators, permits the sort of “electronic self-help” attempted by Corcoran only if both parties explicitly agree to permit it (see � 816(c)). Again, the details of Corcoran’s contract with MCS are not known, but it seems unlikely that MCS would have agreed to such a provision.
Corcoran made a more serious error by trying to claim copyright in the data which he destroyed. Two types of data were destroyed: restaurant reviews and payroll records. The latter were facts and thus uncopyrightable, as the Supreme Court made quite clear in Feist v. Rural. Corcoran may have been able to claim copyright in the arrangement and compilation of the payroll data, but this seems unlikely. A listing of employees and how much they were paid is too common and obvious to deserve copyright protection. Like Rural’s white pages, it lacks originality, the key element required to trigger copyright.
The restaurant reviews, on the other hand, were original content and thus their copyright is held by either the individual reviewers or by MCS, if the reviewers were employees of MCS. The precise nature of the restaurant reviews is unknown, but even if they were just numbered ratings, they still deserve copyright protection as original products of professional judgment and expertise, regardless of the fact that they were expressed as numbers (see the discussion of Red Book valuations in CCC v. Maclean). So Corcoran cannot claim copyright in either of the files he destroyed, because in the first case there is no copyright to be had and in the second case the copyright belongs to someone else. The fact that Corcoran’s programs processed the files is irrelevant; as the GPL FAQ tells programmers, “copyright law does not give you any say in the use of the output people make from their data using your program.”
Corcoran may have been partially correct that the Copyright Act preempts the Wisconsin computer crimes statute. In NBA v. Motorola, the court found that New York’s misappropriation laws were preempted by federal copyright law because the state laws applied to works that fell under the subject matter of copyright and granted rights equivalent to those granted by copyright protection. The Wisconsin statute applies to computer programs and computer data. Computer programs are clearly within the subject matter of copyright. As Judge Easterbrook points out in ProCD v. Zeidenberg, this is true of uncopyrightable data as well: “’[S]ubject matter of copyright’ includes all works of a type covered by [the Copyright Act], even if federal law does not afford protection to them.”
So the question is whether the Wisconsin statute creates rights equivalent to those granted by the Copyright Act. Some parts of of the statute, notably � 943.70(2)(a)5, which forbids the copying of “data, computer programs or supporting documentation,” certainly appear to do so. When arguing that copyright law does not preempt contract law in the ProCD case, Judge Easterbrook contends that the party-specific rights created by contracts are not equivalent to the “rights against the world” created by the Copyright Act. The Wisconsin statute, by forbidding anyone “without authorization” to duplicate computer data or programs, creates an exclusive right, and thus meets Judge Easterbrook’s test of general scope.
But other parts of the statute, and in particular the part under which Corcoran was found guilty, are outside of the scope of copyright. � 943.70(2)(a)2, which forbids the unauthorized destruction of data, is concerned not with granting exclusive rights to the expression of ideas, but with ordinary property rights in material possessions. These computer crimes are considered to be specific kinds of crimes against property. Corcoran broke the law not because he violated any exclusive intellectual property rights granted to MCS, but because he destroyed material objects (magnetic patterns on a disk) which he did not own. This fact makes the issue of who had copyright in the destroyed data files irrelevant, because as 17 U.S.C. � 202 makes clear, “[o]wnership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.”
The only possible rejoinder to this argument is that somehow Corcoran owned the data files which were deleted. It has already been established that he could not have owned the copyright in the files; could he somehow claim material ownership of them? Clearly, the answer must be “no.” The files were created by MCS employees, on MCS computers, from data they collected. Corcoran’s programs were nothing more than tools used to create the files. The fact that he authored and owned those tools does not imply that he authored or owned the files, any more than the fact that Lotus Software authored Lotus 1-2-3 implies that Lotus owns his programs. To claim otherwise would lead to compiler programmers having absolute control over the free flow of information, an absurd conclusion with devastating socioeconomic consequences.
So by destroying files which he did not own, Corcoran violated a section of Wisconsin law which survives preemption by federal copyright law. The trial court was correct to convict him, the Wisconsin court of appeals was correct to uphold his conviction, and the Seventh Circuit was correct to deny his request for habeas corpus.
It is unfortunate that Corcoran waited until he faced criminal charges to educate himself about legal issues. Had he stopped at the deletion of the macros which he created, he likely could have escaped conviction by demonstrating his copyright and property rights in his programs. If he had had the foresight to negotiate a contract in which the right to “electronic self-help” was granted in the event that MCS refused to pay, he probably could have avoided the courts entirely. But his lack of knowledge about commercial law and intellectual property law led him to believe in fictions like the right to retaliate against database “trespassers,” and ultimately led to his conviction. The fantasy of revenge against unfair employers via hidden logic bombs is popular among hackers. The legal realities that Corcoran encountered show that this sort of revenge should remain a fantasy.
July 17th, 2007 at 8:24 pm
There is so much wrong with this analysis that I hardly know where to begin.
Brian P. Corcoran
July 18th, 2007 at 9:35 am
I’d be interested in hearing your own analysis, if indeed you are Brian Corcoran and not just a troll.
July 27th, 2007 at 5:44 pm
In 1994 programmer Brian Corcoran was convicted and sentenced under Wisconsin’s computer crimes law for the willful destruction of computer data. His conviction was upheld on appeal by both the Wisconsin Court of Appeals and the United States Court of Appeals for the Seventh Circuit. Both courts made correct decisions, although their failure to grasp many of the technical details of the case somewhat weakened their judgments and could have opened the door to clever formalist arguments in defense of Corcoran. (I’d like to know what they are.) Corcoran, however, chose to represent himself and failed to make such arguments. This is unfortunate, because he clearly in now way broke the law, and the law which he allegedly broke was constitutional. A careful reconstruction of what occurred, including details glossed over by the lower courts, will make this evident.
Mueller Consulting Services (MCS) hired Corcoran in the spring of 1987, thus initiating what would prove to be a short and contentious relationship. The lower court opinions do little to illuminate the nature of this relationship. According to State v. Corcoran, Corcoran was hired “to write specialized application programs to manage data for MCS in time to prepare a report on May 15th.” There is no record of what sort of business MCS engaged in, (They were kind of “mystery shopper” business that sent people into Ponderosa Steak House restaurants so they could critique the service, cleanliness and quality of service. Their “shoppers” would be reimbursed for their meal there. Basically they got a free dinner for the critique) what Corcoran’s programs were intended to do, what the contents of the planned report were, or if the report was ever created. (The report that I printed out for them on the 15th of May was a big hit with Ponderosa. MCS did not have a contract with them at the time of my contracting. Two weeks after they sent my first compiled print out they signed a contract with MCS to pay them $3,800 or so a month for a 24 month period to generate similar quarterly reports. Do the math. I put nearly $100,000 bucks in their pocket with my programming.) But one can make some educated guesses about the purpose of Corcoran’s programs based on what little is known.
The programs were implemented as macros for Lotus 1-2-3, a very popular spreadsheet program at the time. A macro is an abbreviation for a longer set of program commands, which can be run when a data file is opened or at a specific time. Since the Lotus 1-2-3 program commands included things like moving the cursor, showing lists of options, and taking input from the user, they were often used to create interfaces for data entry. It appears that the macros which Corcoran created for MCS were used in this way, since there are several references to MCS inputting data into Corcoran’s programs. (The program basically prompted the user to input the data in an organized fashion by asking questions of the user. Questions like what was the quality of this and what was the quality of that on a scale of 1-10.) It is important to understand, however, that the purpose of such a macro is to automate the process of creating, in a uniform way, Lotus 1-2-3 spreadsheet files from data entered by users. The data are not “inside” the macro, any more than name, address, and credit card data one types into a Web form are “inside” that form after it is submitted. The form, like the macro, is simply an interface. The data was not “inside” the macro but it was on the same spreadsheet as the data
Corcoran’s macros may also have been used to process the MCS spreadsheet files into reports. (it did indeed. It added up the quality values for the various restaurants and arranged them in descending order the best rated restaurants on top and worst at the bottom. There were some 600 or so restaurants total. The program also divided the bunch into four geographic categories based on the physical location of the restaurants.) Lotus 1-2-3 came with a program for creating graphs and charts, and was often used for creating reports from spreadsheet data. (Never had to use this feature) The fact that Corcoran was asked to finish his programs in time to prepare a report due May 15th would seem to support this. Again, however, it is important to distinguish Corcoran’s programs for processing spreadsheet files into reports from the spreadsheet files and reports themselves. The latter would have been the inputs and outputs of Corcoran’s separate programs.
Corcoran’s contract specified that he would not be paid for his work unless he produced fully functional programs. (Contract was verbal, mistake number one.) It seems that his programs were not fully functional, (This was a bold faced lie that Mary Mueller actually got up on the stand and stated to the jury. You should have seen the look on her face as she avoided eye contact with me sitting in the defendants chair spouting these lies. It was a wonderful piece of software that I went to great lengths to make “idiot proof” for them. When her husband got on the stand he lied about the quality of the software too but the strain of deliberately lying was much more obvious on him than his totally amoral wife. I believe to this day that he divorced her some years later because he could not live with what he did to me for her.) although the nature of the programs’ problems, like their functions, is unknown. Corcoran v. Sullivan says only that “his work was full of errors.” Rather than risk not being paid, he decided to resort to extortion. (a rather harsh characterization) Sometime between August 1 and August 10, 1987, he modified six of his macros so that they would execute the necessary commands to delete themselves at 12AM on August 11, (August 10th actually, my birthday) 1987. He also created another macro that when run would delete two 1-2-3 spreadsheet files, PONQTR2.WK1 and PAYROLL1.WK1, containing restaurant reviews and restaurant reviewer payroll data respectively. This macro was inserted in another 1-2-3 file, PONQTR1.WK1. It is not clear whether Corcoran made these modifications before or after he demanded his full payment plus an additional $1500 from MCS, (This is incorrect and was one of the other lies promugated by the Muellers. The $1,500 include the original $600 plus more that they owed me for writing programs for 3 other clients they were courting for business. They also stated that I demanded “cash in my mailbox” which was an outright lie. Extortion, hardly. I merely sent them a bill and stated I would not finish the other programs until I was paid what they owed me for the first one that had done so well for them.) but in any event the modifications were intended to enforce his threat to destroy the programs and their associated data in the event that MCS did not pay.(I never ever threatened them with the destruction of their programs if they did not pay. I just took it upon myself to so do without warning.) MCS refused to pay, and so Corcoran delivered on his threat. (like I say, no treat was ever delivered.) The macros deleted themselves as scheduled, and the data-deleting macro achieved its purpose when it was run by Mary Mueller while following Corcoran’s written instructions. Although the exact course of ensuing events has not been recorded, it seems that after realizing what had happened MCS called the police, who arrested Corcoran. (Get this. The Brookfield Police department plotted a sting against me. The wanted to give the Muellers $1,500 in marked cash and have them call me in to restore the programs with my copies. Then, as I left the Mueller’s place of business, which was the basement of their house they would swoop down and bust me with my extortion booty. The Muellers would not go along with it for some reason or other. I found this out talking to one of the witnesses at my trial who was called in by the Muellers to try to restore my programs.) (Also, no arrest warrant was issued until November of 1988 some 15 months later. The DA of that county had just been appointed to a federal position and the new DA, appointed by Tommy Thompson, now running for president, wanted to make a name for himself by being the first to prosecute a “computer criminal”. At that time I had graduated from engineering school and was working for Northern Telecom in the Research Triangle Park in Raleigh/Durham North Carolina.
The lower court opinions demonstrate that information technology in general, and spreadsheet programming in particular, lay outside the judges’ areas of expertise. (better now than then) The opinion of the first appeals court calls Corcoran’s macros “specialized application programs.” But Corcoran’s programs were not really standalone applications: they were interfaces for the Lotus 1-2-3 application, created to automate repetitive tasks. His logic bombs were incorrectly characterized by the judges and counsel as “Trojan horses.” More worryingly, the court is distracted by the details of how the “delete” command is implemented in DOS. One wishes that they had paid as much attention to the details of Corcoran’s programs. (well said) Their inability to distinguish among the various layers involved in software programming leads them to take at face value Corcoran’s claims that his programs “reduced the ‘raw data’ into electronic signals” and “positioned the data in memory.” These tasks are handled at the physical layer and OS layer of a computer—not by spreadsheet macros. The opinion of the federal court avoids such obvious blunders, but still shows a lack of clear thinking about how computer programs operate by claiming that Corcoran “embedded” MCS data in his programs. ( I don’ really think this using the term “embedded” is a mischaracterization. The data was contained on the same spreadsheet which one could regard as a program file. My own characterization is to refer to the spreadsheet which contained the program and data as an “automated database”. The federal court opinion also ?conflates? (there is no such word in the English language) the two separate logic bombs Corcoran created, and generally seems uninterested in the details of the relevant events.
While these sorts of mistakes may be understandable, they could have had serious consequences. For instance, a judge lacking fundamental knowledge of how an operating system works might be fooled into thinking that Corcoran purposefully engineered his logic bombs so that they would only “hide” data files, by removing their names from the file allocation table and declaring that the disk space they occupied to be free. This judge might then conclude that Corcoran didn’t actually intend to destroy the files, and that the destruction was the really the result of subsequent data entry by MCS employees. Such an interpretation of the events is laughable to someone who knows that this is the standard way that operating systems delete data. Corcoran’s logic bombs worked this way not because he skillfully engineered them to do so, but because he most likely didn’t have any other way to do it: he was limited to the macro commands offered by Lotus, and Lotus was limited to the DOS APIs exposed by Microsoft. (You got me dead to rights here. I knew full well the dangers of deleting the files but I really did expect MCS to accede to my payment demands immediately before the opportunity to overwrite the files would present itself.)
Fortunately Corcoran was unable to exploit the lower courts’ lack of information technology expertise to get himself off the hook. He presented a grab bag of arguments intended to show that the Wisconsin computer crimes statute was unsound and unconstitutional, and that his conviction was therefore illegal. Most of these arguments, such as his claims that the Wisconsin statute is vague and that it violates constitutional equal protection provisions, are entirely specious. Some of his arguments, however, deserve closer examination. Corcoran claimed copyright in both his spreadsheet macros and the data input to and output from those macros. He further claimed that the rights thus granted to him under the federal Copyright Act preempted enforcement of the Wisconsin computer crimes statute, and that the statute deprived him of his right to repossess his property.
Corcoran’s claims of copyright in his programs were sound. He was not an employee of MCS, and MCS did not specify in his contract that his macros would be considered “work for hire.” Although the details of Corcoran’s contract with MCS are unknown, the fact that the State of Wisconsin was willing to concede that Corcoran held the copyright for the programs seems to indicate that this is the case (Community for Creative Nonviolence V Reed would have been a better case law reference here since it was the first one to address this issue. CCNV v Reed incidentally was a 1989 case that was settled during the first round of litigation that settled my case in my favor. CCNV v Reed actually got me off the hook for a while. I will send you a copy of this court order in which the charges against me were actually dismissed based on CCNV v Reed) . Thus, as in Aymes v. Bonelli, the programmer retains copyright in his programs. But Corcoran’s rights to his programs go beyond copyright. Corcoran is also the rightful owner of his programs. MCS declined to purchase the programs from Corcoran, as they were not fully functional. Contrast this situation with Aymes v. Bonelli, in which Judge Altimari determined that although Aymes held the copyright to the program which he wrote for Bonelli, Bonelli was the rightful owner of the program because he bought it from Aymes. Corcoran, on the other hand, failed to sell his programs to MCS and thus retained rightful ownership.
Judge Posner, in the federal court opinion, ignores this fact completely (Your damned right that stupid bastard ignores it. He is supposed to be a highly regarded jurist? I think he is a total dimwit. ) with his analogy of the author who claims the right to tear up copies of his book, even if they have been purchased by a reader. A more suitable analogy would be an author who is allowed to use a reader’s office to write a book claiming the right to tear up his manuscript if the reader declines to purchase the book when it is finished. The reader could not claim ownership of the manuscript solely on the basis of the fact that his typewriter was used to produce it. Likewise, MCS cannot claim ownership of Corcoran’s programs just because their computer was used to create them. (Kudos to you here my friend. Pat Riley saw this too and was critical of it.)
But Corcoran still may have strayed outside his rights when he modified his programs to destroy themselves. (I don’t think so.) The right of repossession, while generally accepted for material goods like automobiles, is still quite controversial when it comes to software products. Even the Uniform Computer Information Transactions Act (UCITA), a uniform law strongly biased in favor of software creators, permits the sort of “electronic self-help” attempted by Corcoran only if both parties explicitly agree to permit it (see ? 816(c)). Again, the details of Corcoran’s contract with MCS are not known, but it seems unlikely that MCS would have agreed to such a provision. (Let’s not talk about repossesion rights here that are recognized under the Uniform Commercial Code, which I invoked in my pleadings, or similar rights under the UCITA which I have not looked at until yesterday. Let’s talk about the right to control the distribution of a copyrighted work under 17 USC section 106, 1, which grants to a copyright holder the exclusive right to control the distribution. Now, could not my destruction of these copyrighted works off the computer of MCS be construed as the exercise of my right to control the distribution of those works. If not, why not? My arguments were based on copyright law not common law rights of repossesion.)
Corcoran made a more serious error by trying to claim copyright in the data which he destroyed. (Now we get down to the nitty-gritty and where I hope to show you the statues and case law that support my preemption claims.) Two types of data were destroyed: restaurant reviews and payroll records. The latter were facts and thus uncopyrightable, (you are overreaching a little bit here. Factual compilations are copyrightable provided they show sufficient origionality) as the Supreme Court made quite clear in Feist v. Rural. Corcoran may have been able to claim copyright in the arrangement and compilation of the payroll data, but this seems unlikely. A listing of employees and how much they were paid is too common and obvious to deserve copyright protection. (Are are correct here.) Like Rural’s white pages, it lacks originality, the key element required to trigger copyright. (Kudos to you here. You really know your stuff. I applied for copyright for both databases. The copyright for the Payroll database was denied for precisely the reason you cite. The Ponqtr database was however deemed to be of sufficient arrangement and coordination to warrant copyright which I was granted. But before your head gets too big, I will show you later on why preemption claims are unaffected by the subsistance of copyright.)
The restaurant reviews, on the other hand, were original content and thus their copyright is held by either the individual reviewers or by MCS, if the reviewers were employees of MCS. The precise nature of the restaurant reviews is unknown, but even if they were just numbered ratings, (For the most part they were precisely this. You would make a great detective.) they still deserve copyright protection as original products of professional judgment and expertise, regardless of the fact that they were expressed as numbers (see the discussion of Red Book valuations in CCC v. Maclean). So Corcoran cannot claim copyright in either of the files he destroyed, because in the first case there is no copyright to be had (you are right here, but the point is moot as I shall explain furthur down) and in the second case the copyright belongs to someone else. (You are dead wrong here!!!!. Let me provide you a little case law.)
The precise issue over this idea/expression dichotomy was addressed in Apple Barrel Productions Inc. v Beard53 in which the 5th Circuit held that:
“Copyright protection may extend to a compilation even if material of which it is composed is not copyrightable itself. ….Mere fact that component parts of a collective work are neither original to plaintiff nor copyrightable by plaintiff does not preclude a determination that combination of such component parts as a separate entity is both original and copyrightable.”54
Thus it should be apparent that I am entitled to hold a valid copyright to the compilations of data that I created under contract to MCS regardless of the fact that the information from which it was composed was not original to me and irrespective of the copyrightablity or non copyrightablility of the factual information upon which the database was composed. Now I do not have this case law at my fingertips but I do know of the existence of case law that I have seen in my legal meanderings and which I should have no difficulty refinding that affirms the copyrightablilty of compilations that are composed of materials that are themselves independently copyrightable. Anthologies of poems and prose fall into this category.
The fact that Corcoran’s programs processed the files is irrelevant (it is not irrelevant provided that the processing involved a process of coordinating and arranging the data so as to comprise an origonal work of authorship. It could, and does in fact accord under those circumstance to the programmer, a copyright in the database that results from it.) ; as the GPL FAQ tells programmers, “copyright law does not give you any say in the use of the output people make from their data using your program (This assumes of course that they are licensed users of the program. This was not the case with MCS once they refused to pay the license fee.).”
Corcoran may have been partially correct that the Copyright Act preempts the Wisconsin computer crimes statute. In NBA v. Motorola, the court found that New York’s misappropriation laws were preempted by federal copyright law because the state laws applied to works that fell under the subject matter of copyright and granted rights equivalent to those granted by copyright protection. (I like Crow v Wainright as cleaner and more obvious. Crow was a real crook who got of the hook using preemption. I don’t like Crow but I like the ruling. It made great sense.) The Wisconsin statute applies to computer programs and computer data. Computer programs are clearly within the subject matter of copyright. As Judge Easterbrook points out in ProCD v. Zeidenberg, this is true of uncopyrightable data as well: “’[S]ubject matter of copyright’ includes all works of a type covered by [the Copyright Act], even if federal law does not afford protection to them.” ProCD v Zeidenberg is probably the best case law out there regarding these issues. My case was referenced in ProCD v Zeidenberg in a manner that I would have to take some issue with.)
So the question is whether the Wisconsin statute creates rights equivalent to those granted by the Copyright Act. Some parts of of the statute, notably ? 943.70(2)(a)5, which forbids the copying of “data, computer programs or supporting documentation,” certainly appear to do so. When arguing that copyright law does not preempt contract law in the ProCD case, Judge Easterbrook contends that the party-specific rights created by contracts are not equivalent to the “rights against the world” created by the Copyright Act. The Wisconsin statute, by forbidding anyone “without authorization” to duplicate computer data or programs, creates an exclusive right, and thus meets Judge Easterbrook’s test of general scope.
But other parts of the statute, and in particular the part under which Corcoran was found guilty, are outside of the scope of copyright. ? 943.70(2)(a)2, which forbids the unauthorized destruction of data, is concerned not with granting exclusive rights to the expression of ideas, but with ordinary property rights in material possessions. (Mind you now that MCS never paid for these programs or databases. What material rights are you advocating for them on their behalf). These computer crimes are considered to be specific kinds of crimes against property. Corcoran broke the law not because he violated any exclusive intellectual property rights granted to MCS (no exclusive property rights were ever granted to MCS by me in my programs or databases) because he destroyed material objects (magnetic patterns on a disk) (Now you are really going overboard with this one. Patterns on a disk are “material”? I can see how patterns on a disk might consitute a specific arrangement of material, but this is to be distinquished from the material itself upon which the pattern has been arranged. This should be more than intuitively obvious. One might even consider the magnetic domains on a disk to be “material” although they are really nothing more than distributions of magnetic energy on the disk. If anything those “patterns” on their disk owed their origin to me. By what standard do you construe that those patterns belonged to MCS and that any material was destroyed by my rearrangement of them?) which he did not own. This fact makes the issue of who had copyright in the destroyed data files irrelevant, because as 17 U.S.C. ? 202 makes clear, “[o]wnership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.”
The only possible rejoinder to this argument is that somehow Corcoran owned the data files which were deleted. It has already been established that he could not have owned the copyright in the files; could he somehow claim material ownership of them? Clearly, the answer must be “no.” The files were created by MCS employees, on MCS computers, from data they collected. Corcoran’s programs were nothing more than tools used to create the files. (That tool coordinated and arranged the files into a copyrightable database. That entitles me to the exclusive rights to those databases under the Copyright law..) The fact that he authored and owned those tools does not imply that he authored or owned the files, any more than the fact that Lotus Software authored Lotus 1-2-3 implies that Lotus owns his programs. (Lotus would indeed own my programs, or would at least be able to prohibit my use of them, had I been an unlicensed user of their program and Macros. Without a license to use Lotus 1 2 3, I believe they could indeed claim ownership of my programs.) To claim otherwise would lead to compiler programmers having absolute control over the free flow of information (I doubt this conclusion very much), an absurd conclusion with devastating socioeconomic consequences. (Compiler programmers do have complete control over the free flow of information. They always have and always will. God bless them for what they have given us and have shared with us.)
So by destroying files which he did not own, Corcoran violated a section of Wisconsin law which survives preemption by federal copyright law. The trial court was correct to convict him, the Wisconsin court of appeals was correct to uphold his conviction, and the Seventh Circuit was correct to deny his request for habeas corpus. (NOT)
It is unfortunate that Corcoran waited until he faced criminal charges to educate himself about legal issues. (School of hard knocks is always the best. The year and one half that I spent in prison over this certainly allowed me to catch up on my reading.) Had he stopped at the deletion of the macros which he created, he likely could have escaped conviction by demonstrating his copyright and property rights in his programs. If he had had the foresight to negotiate a contract in which the right to “electronic self-help” was granted in the event that MCS refused to pay, he probably could have avoided the courts entirely. But his lack of knowledge about commercial law and intellectual property law led him to believe in fictions like the right to retaliate against database “trespassers (If you recognize that they are trespassers, why side with them legally),” and ultimately led to his conviction. The fantasy of revenge against unfair employers via hidden logic bombs is popular among hackers (I would think that it would be popular among everyone. Next time I’ll use an ANFO bomb. Those make the point in a manner more appropriate to the likes of lying, cheating bastards) The legal realities (those realities have been entirely ignored by the Courts.) that Corcoran encountered show that this sort of revenge should remain a fantasy. (The fantasy here is that we have a system of “justice”. )
Now all of this discussion about copyright is well and fine. I have a copyright from the Copyright Office for the Ponqtr file and was turned down for the payroll file. My defense however was not based on copyright. It was based on preemption. Preemption does not turn on copyright, strange as this may seem. The applicable standard for review of preemption claims may be found in ProCD v Zeidenberg47 in which the Seventh Circuit stated:
“Statute preempting state law claims48 that conflict with federal copyright policies imbedded in the Copyright Act comes into play only if two conditions are satisfied: work in which state law right is asserted comes within ‘subject matter of copyright’; and state law right asserted is equivalent to any of the rights specified under statute listing exclusive right of copyright holders49.
Lets look at both database files that I was convicted of destroying. Applying the subject matter test to the factual circumstances of this case one would find that the database compilations that Corcoran created under contract to MCS and was convicted of destroying were indeed proper subject matter materials. As the ProCD court observed:
“Factual compilations are included within the subject matter of copyright by 17 U.S.C. § 103 and are defined elsewhere in the Act as a collection of data or materials arranged in such a way as to constitute an original work of authorship. …. The law in this circuit (7th) is that the “subject matter of copyright” includes works that fit within the general subject matter of §§ 102 and 103, whether or not the works qualify for actual protection.50”
Accordingly, there can be no question but that the compilations created by Corcoran under contract to MCS were proper subject matter materials. Similarly, in Rand McNally v. Fleet Management Systems the Court held:”
“With respect to this latter prong, the court has held that a factual compilation falls within the subject matter of copyright. It is irrelevant that the collected facts in question here may turn out not to be in fact copyrightable, as long as their compilation falls within the subject
matter51.”
Now lets examine the eqivalency portion of the two pronged test. With regard to the equivalency test one must determine what state-created rights are being asserted under the criminal cause of action, and whether those rights bear a substantial equivalence to any of the exclusive rights secured for authors of original works under Title17 § 106. Quoting directly from State v Corcoran:
“Mueller testified that MCS incurred expenses of almost $4,000 to recover from Corcoran’s attempts to write useable programs and activation of the two ‘Trojan Horses’ (technological measures). ……., MCS lost one major customer because it was not able to deliver timely reports and a second customer refused to expand MCS’s contract.”64
In this statement there appear to be here-involved three state-created rights equivalent to the § 106 copyrights. In claiming as a criminal damage that MCS “lost one major customer because it was not able to deliver timely reports” the State is using the WCCA to create a right for MCS so as to permit them to control the distribution of the compilations by sale. Since a copy of the computerized compilations cannot be distributed without being reproduced in print, this copyright is also inextricably involved. And, since the purpose of reproducing and distributing the compilations to MCS’s customer was to display the work for their review, this equivalent right is additionally asserted.
The Copyright Act is explicit as to who may lawfully exercise the right to reproduce, distribute and display a copyrighted work:
“ ……. the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
To reproduce the copyrighted work in copies or phonorecords;…..
3. To distribute the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;…..
5. …….. to display the copyright work publicly65.
The “owner of copyright” in this case is Corcoran, who, as an independent contractor, created the compilations for MCS. No instrument assigning to MCS the copyrights to those materials was ever executed by Corcoran. No payment for them was ever made to Corcoran. The state-created rights being asserted here for MCS under the WCCA are identically equivalent to three of the exclusive copyrights of § 106. Therefore the equivalency prong is satisfied, and preemption of the WCCA under § 301(a) of the Copyright Act is established. Just for grins I will quote the preemption stature for you
.17. U.S.C., Sec 301(a) : PREEMPTION WITH RESPECT TO OTHER LAWS :
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by Sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
So, MCS would have had to turn to the federal law for any relief that they sought and a state law could not be used to prosecute me as it was preempted. Unfortunately for MCS the federal law invests all the rights to me. So I was therefore convicted of something without jurisdiction by the State Court.
Now I will anxiously await your rejoinder. Remember, be honest, don’t get defensive. I am not your enemy, just another intellectual crusader for justice.
Yours truly,
Brian Patrick Corcoran