Protecting state secrets as intellectual property: a strategy for prosecuting WikiLeaks.

AuthorFreedman, James

INTRODUCTION I. The Shortcomings of Traditional Approaches A. Statutory Scope B. Jurisdictional Reach C. Extradition D. Constitutional Limitations II.COPYRIGHT INFRINGEMENT ANALYSIS A. Ownership of U.S. Government Works B. Copyrightable Subject Matter C. Rights, Remedies, and Enforcement 1. Location of infringing acts 2. Grounds for protection 3. Choice of law 4. Minimum standards of protection: basic rights and remedies 5. National (and most-favored nation) treatment D. Criminal Copyright Infringement III LEGAL BARRIERS TO SUCCESS A. Fair Use and Fair Dealing B. The Idea-Expression Dichotomy C. De Minimis Use D. Constitutional Issues and the Purpose of Copyright IV. ADDITIONAL OBSTACLES A. The Decentralization Problem B. Outlier Nations CONCLUSION: THE TRIUMPH OF COPYRIGHT INTRODUCTION

In late November of 2010, an organization headquartered in Sweden and founded by an Australian national released approximately 250,000 United States government diplomatic cables--many or all classified as state secrets (1)--onto the World Wide Web. (2) Warning that the cables' release could put the lives of American diplomatic sources at risk and "deeply impact ... U.S. foreign policy interests," the White House strongly condemned this "unauthorized disclosure of classified documents and sensitive national security information." (3)

This wasn't the first time WikiLeaks (4) had distributed U.S. classified material over the Internet, (5) and it wouldn't be the last. (6) In Washington, government attorneys scrambled to find a legal hook that would enable them to shut down the site for good. (7) In the meantime, U.S. prosecutors turned their attention to the low-hanging fruit: the alleged source of the leak, a U.S. citizen and Army intelligence analyst, Bradley Manning.

This Note will not dwell on the normative--should the United States seek to shut down WikiLeaks and similar organizations? Is sunshine truly the best disinfectant? (9) Is WikiLeaks even a threat to national security, (10) or a beneficial counter to excessive government secrecy? (11) Instead, the Note starts from the straightforward assumption that the government desires to keep certain information secret, a supposition supported by the existence of today's classification system and the costly complexities involved in maintaining it. With this in mind, what tools can the government employ to achieve those ends, preventing the exposure of its classified documents? Many are already in place, in the form of physical security, access restrictions, deterrence through discovery and prosecution of initial leakers, and the like. (12) Those methods, like the above normative question, are also beyond the scope of this Note.

What this Note will address are potential lawsuits the United States can bring against distributors of purloined state secret documents. Particularly, it will focus on a somewhat unusual and largely disregarded or derided approach: utilizing intellectual property laws--namely, copyright--to prevent and punish the distribution of U.S. government documents classified as state secrets. (13)

At least based on press reports, it appears federal prosecutors have had a hard time formulating a strong case against WikiLeaks. (14) While accused leaker Bradley Manning's alleged actions more clearly constitute violations of various U.S. statutes--most notably the Espionage Act of 1917--prosecuting third-party recipients of classified information who later redistribute it is far more difficult, both because of the language of the applicable statutes and due to First Amendment protections. (15) As a result, attempts have been made to find evidence of a conspiracy between WikiLeaks and Manning, (16) which could then render the organization or its members liable alongside Manning for any illegal acts he committed in furtherance thereof, or to stretch the application of various U.S. laws to cover the activities WikiLeaks is known to have undertaken--namely, the publication of thousands of classified documents online.

In addition to these nearly insurmountable impediments, limits on the extraterritorial reach of U.S. criminal law--with the practical difficulties imposed by the necessity of extraditing WikiLeaks' leaders from foreign nations--go a long way toward explaining why such a criminal prosecution has yet to occur. In light of these obstacles, it might be worthwhile to consider an unlikely source of protection for government secrets: copyright law. For centuries, international norms and treaties have generally led to strengthened protection worldwide for intellectual property, including copyrighted works. (17) Minimum standards of protection and reciprocity in the form of national treatment or most-favored-nation provisions of intellectual property treaties provide significant protection to U.S. copyright holders in many foreign courts. Copyright protection is also extraordinarily broad in scope, providing remedies not only against initial transgressors--like many of the U.S. statutes previously employed against state secret leakers, like Bradley Manning- -but also against parties who subsequently reproduce or distribute a protected work, such as WikiLeaks. Using copyright to protect state secrets, particularly if done directly in a foreign court, escapes a number of the impediments to a WikiLeaks prosecution previously discussed, such as the limited scope of more narrowly tailored statutes or the need to apply U.S. law extraterritorially and extradite defendants. Admittedly, however, using copyright law for these purposes presents its own set of problems, perhaps most intractable under U.S. law, but still significant in the case of suits brought in a foreign court under foreign law. This Note will explore these difficulties, eventually reaching the conclusion that prosecuting WikiLeaks internationally for copyright violations is potentially more viable from a purely legal standpoint than any of the methods of criminal prosecution heretofore explored.

In part relating to some of the hurdles to be discussed below, a number of law professors have indicated that prosecuting WikiLeaks or a similar organization for copyright violations goes against longstanding justifications for copyright protection. For instance, Michael Fraser, Professor of Law at Sydney's University of Technology, was quoted as saying such a suit would be a "grotesque misuse of legitimate copyright laws, which are not meant to shut down whistle-blowers." (18) And Duke law professor James Boyle said: "The reason people are upset about this is not about commercial theft or misusing the fabulous original expressions of U.S. diplomats. I think it is the wrong tool. You go after Al Capone for tax evasion rather than bootlegging--fine. But this is a bridge too far." (19) Indeed, jurists have long expressed a justifiable concern regarding the use of copyright to promote secrecy. (20)

These arguments may have particular legal force in countries, such as the United States, where the copyright law itself is potentially limited by such principles. (21) Related justifications often shape a nation's copyright law, such as in the case of fair use or fair dealing provisions. But aside from these legal implications, those arguments constitute a normative judgment of how copyright should be used, but do not necessarily provide an answer to the practical question of how it can be used. This Note will consider the latter question, and leave it to government actors and the political process to determine whether those negative policy implications outweigh the potential benefit of utilizing copyright to shut down or impair WikiLeaks or similar organizations, even if the law itself, in either U.S. or foreign jurisdictions, would allow for such a result.

Non-governmental actors can probably secure injunction or damages against WikiLeaks through the use of an intellectual property cause of action more easily than the U.S. government can. For instance, trade secret law--protecting commercially valuable business information--can provide companies with injunctive relief in the face of a public disclosure, or subsequent damages to deter future leaks. And issues of a statutory copyright carve out, to be discussed in Part II.A as pertaining to U.S. government works, will not apply. Perhaps considering the limitations on copyright discussed below, however, private WikiLeaks "victims" that chose to sue often pursued other claims, such as Bank Julius Baer's filing alleging unlawful and unfair business practices related to the leaking of its bank documents on the site. (22) One might ask, if copyright provides a ready means to prevent leaks, why more of WikiLeaks' corporate targets are not turning to lawsuits based on those rights? This may be due, in part, to more appropriate causes of action available to corporations but not governments, such as unfair competition laws or trade secret protection. Other possibilities include the type of material at issue (the corporate leaks, often representing banking records, may be even less creative than, say, U.S. diplomatic cables, and consequently even less likely to obtain copyright protection), or the unwillingness of some companies to risk drawing further negative attention in the form of claims that they are "perverting" copyright law to prevent fair disclosure of their suspect activities, or their fear that by bringing any suit against WikiLeaks, they might become the target of future exposes. The benefit of suing and obtaining an injunction or even shutting down WikiLeaks entirely through a significant monetary award may also be less appealing to any given company, since their damaging information has already been widely distributed and the corporation may not consider itself a likely target of a future leak.

Unlike these corporate entities, the United States is a repeat player, having already been the target of numerous leaks, and being likely to continue to suffer damage...

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