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Shofar FTP Archive File: miscellany/censorship/cybersitter/response-to-demand-ltr.19970505


Date: Tue, 6 May 1997 14:49:59 -0400
From: Declan McCullagh 
Subject: Jim Tyre responds to CyberSitter's Brian Milburn

Jim Tyre's response to Brian Milburn's letter is attached below.

Milburn's "demand letter" sent on April 24 is at:
  http://www.peacefire.org/archives/SOS.letters/bm.2.bh.4.24.97.txt

One of my articles about Milburn's earlier threats is at:
  http://cgi.pathfinder.com/netly/editorial/0,1012,453,00.html

Netly's Censorware Search Engine is at:
  http://cgi.pathfinder.com/netly/spoofcentral/censored/

- -Declan

**************

May 5, 1997


Mr. Brian Milburn
President,                              BY FAX TO
Solid Oak Software, Inc.                (805) 967-1614
P.O. Box 6826                           AND BY CERTIFIED MAIL
Santa Barbara, CA 93160                 RETURN RECEIPT REQUESTED


        Re:     April 24, 1997 Demand Letter to Bennett Haselton


Dear Mr. Milburn:

This law firm represents Bennett Haselton with respect to your April 24,
1997 demand letter to him, received on April 29, 1997.  Any further
communications concerning this matter should be directed to me, not to
Mr. Haselton.

It is not my custom to engage in lengthy discussions of the law with
non-lawyers, and I shall not vary from that custom here.  I would
suggest that you have Solid Oak's attorneys contact me if there is
reason to discuss this matter further.  However, I will make the
following remarks.


                      ALLEGED COPYRIGHT INFRINGEMENT

You write that:

"You have posted a program on your web site called 'CYBERsitter filter
file codebreaker'.  This program illegally modifies and decodes data and
source code protected by U.S. and International intellectual property
laws.

"This program performs this action without permission of the copyright
owner. We demand that this program be removed immediately."

You should be perfectly well aware that your assertion that Mr.
Haselton's program modifies or decodes CYBERsitter source code is
factually incorrect.  Further, as you know, Mr. Haselton's program is
not in any way a work-around of CYBERsitter, nor did Mr. Haselton hack
into Solid Oak's computers in order to create the program.

Mr. Haselton's program does indeed decode data from the CYBERsitter
filter file.  However, there is no basis in the law for your assertion
that Mr. Haselton's program does so unlawfully.  If Solid Oak's
attorneys believe otherwise, I would be interested in their thoughts.
In that regard, my personal observation is one of surprise at how basic
was the encryption algorithm used for the CYBERsitter filter file.
XORing each byte with a constant byte, such as Ox94, is a methodology
which has been well known for many years, and which is detectable with
great ease.

Applied Cryptography (2nd edition) by Bruce Schneier is a standard
reference.  Mr. Schneier writes:

"The simple-XOR algorithm is really an embarrassment; its nothing more
than a Vigenere polyalphabetic cipher. Its here only because of its
prevalence in commercial software packages, at least those in the MS-DOS
and Macintosh worlds."

He continues, commenting on a slightly more sophisticated variant than
simple Ox94:

"There's no real security here. This kind of encryption is trivial to
break, even without computers. It will only take a few seconds with a
computer."

He concludes the discussion as follows:

"An XOR might keep your kid sister from reading your files, but it won't
stop a cryptanalyst for more than a few minutes."

With XOR (Ox94)  being the extent of the filter file encryption, it
certainly should have been foreseeable to Solid Oak that the filter file
would be decrypted into plaintext, and I am surprised that the algorithm
was not publicized by people examining the program far earlier than was
the case.

Far more important, however, is that Mr. Haselton's program simply is
not a violation of any copyright law or of any copyright which Solid Oak
allegedly may have in the filter file.  I suggest that Solid Oak's
attorneys review and explain to you the following cases, among others:
Vault Corp. v. Quaid Software Ltd., 847 F.2d 255 (5th Cir. 1988); Lewis
Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965 (9th Cir.
1992); and Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th
Cir. 1992).

I would also commend that your attorneys explain to you the copyright
doctrine of fair use, as set forth in 17 United States Code ("U.S.C.") '
107.  One of the (nonexclusive) factors in determining whether the use
of copyrighted material is fair concerns  "the purpose and character of
the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes."

Solid Oak cannot seriously assert that Mr. Haselton's program is of a
commercial nature.  On the other hand, Mr. Haselton can and will assert
that his program is for a nonprofit educational purpose.  Specifically,
Solid Oak's stated blocking policy, at
http://www.solidoak.com/cybpol.htm is as follows:

CYBERsitter Site Filtering Policies

CYBERsitter may filter web sites and/or news groups that contain
information that meets any of the following criteria not deemed suitable
for pre-teen aged children by a general consensus of reports and
comments received from our registered users:


     - Adult and Mature subject matter of a sexual nature.
     - Homosexuality / Transgender sites.
     - Pornography or adult oriented graphics.
     - Drugs, Tobacco or alcohol.
     - Illegal activities.
     - Gross depictions or mayhem.
     - Violence or anarchy.
     - Hate groups.
     - Racist groups.
     - Anti-Semitic groups.
     - Sites advocating intolerance.
     - Computer hacking.
     - Advocating violation of copyright laws.
     - Displaying information in violation of intellectual property
laws.
     - Information that may interfere with the legal rights and
obligations of a parent or our customers.
     - Any site maintaining links to other sites containing any of the
above content.
     - Any domain hosting more than one site containing any of the above
content.
     - Any domain whose general policies allow any of the above content.

      The above criteria is subject to change without notice.


Mr. Haselton has the right to test whether what CYBERsitter actually
blocks comports with Solid Oak's stated criteria, particularly given
some of the seemingly arbitrary decisions incorporated into
CYBERsitter.  Mr. Haselton has the First Amendment right to be critical
of what CYBERsitter does and how it does it.  Since the only way to
fully test what CYBERsitter blocks and to comment critically on the
functionality of CYBERsitter is to decrypt the filter file, Mr.
Haselton's program falls squarely within the fair use doctrine of 17
U.S.C. ' 107.

Additional copyright arguments can be made, and, if necessary, will be
made.  However, I hope that this is enough to convince Solid Oak's
attorneys that Solid Oak cannot prevail in an infringement action
against Mr. Haselton.


                      ALLEGED IMPERMISSIBLE LINKING

You state that Mr. Haselton has placed links to various Solid Oak sites
on the www.peacefire.org site.  Of course you are correct, but your
assertion that Mr. Haselton needed permission to do this is nonsense.  A
URL (the "U", of course, standing for "universal") is merely a machine
readable encoding of a label identifying the work in the form
how://where/what:  It is no different than providing the card catalog
number for a book already in the library.  Solid Oak already is on the
internet, where, by definition, its presence is public, regardless of
whether Solid Oak is a public corporation or a private corporation.  Mr.
Haselton simply has told people where to find Solid Oak and given them
the means to get there without having to type in a URL.  Would you
contend that Mr. Haselton needs your permission to write on the
Peacefire site that "The URL for Solid Oak Software, Inc. is
http://www.solidoak.com"?  Would you contend that Mr. Haselton needs
your permission to state that Solid Oak's address is P.O. Box 6826,
Santa Barbara, CA 93160?  That Solid Oak's telephone number is (805)
962-9853, or that its fax number is (805) 967-1614?

Since you are in the business of making internet software products, no
doubt you should appreciate that linking one web site to another, or to
hundreds of others, which in turn could be linked to thousands of
others, is the raison d'etre of the World Wide Web.  If linking required
permission (which it does not) or was unlawful (which it is not) then,
as a practical matter, the web would die.  Since Solid Oak's business
depends on the web flourishing, I doubt that you would want to see that
happen.

However, regardless of what you might want, there is no law and there is
no policy which prevents Mr. Haselton from including links to Solid Oak
on the Peacefire site.  The same is true for Solid Oak's email
addresses, many of which are listed on Solid Oak's own web pages.  Solid
Oak's URLs are pure information, not protected under any intellectual
property law of which I am aware.  Disclosing and/or linking to them is
neither trespass nor any other offense.

Finally, although I consider the matter legally irrelevant, I note that
Solid Oak's site includes links to each of:

Parent Time http://pathfinder.com/ParentTime/Welcome/;
Microsoft http://www.microsoft.com/;
Quarterdeck http://www.quarterdeck.com/;
Windows95.com http://www.windows95.com/;
Berit's Best Sites for Children
http://db.cochran.com/db_HTML:theopage.db;
Discovery Channel http://www.discovery.com/; and
Family.Com http://www.family.com/.

If, prior to the date of your demand letter, you obtained written
permission from each of these sites to link to them, I would be
interested in seeing those writings.  If, however, Solid Oak has not
obtained written permission for those links, one might wonder as to your
motivation in making your assertion that the links provided by Mr.
Haselton are in any way improper.


Perhaps I can understand your being upset with how easy it was for Mr.
Haselton to lawfully decrypt the weakly encrypted CYBERsitter filter
file.  But being upset is one thing: accusing Mr. Haselton of criminal
conduct and threatening him with legal action (as you have done publicly
both recently and last December) is quite another.  Mr. Haselton has no
desire to institute legal proceedings against you or Solid Oak if this
goes no further.  Therefore, if you were just venting your frustration,
say so now and we will be done with this.  Otherwise, I am confident
that Solid Oak's attorneys know where the proper court is, as do I.



                                      BIGELOW, MOORE & TYRE, LLP




                                      By:
                                              JAMES S. TYRE

JST:hs

cc:     Mr. Bennett Haselton



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