The First Amendment was outdated, anyway

Pax Arcana

First it was the mayor of Boston restricting freedom of speech at the site of its own birth. Now two more Boston-based assaults against the First Amendment have us wondering if we’ve been looking at the wrong Constitution this whole time.

First, a food blogger from California was threatened by the PR firm of Brookline-based Cook’s Country magazine, sister publication of the venerable Cook’s Illustrated and cousin of public television staple America’s Test Kitchen. Her crime? Publishing a modified version of a potato salad recipe from Cook’s Country.

The key word, of course, is modified:

Though not well versed in the specifics of the law, I always thought this was an acceptable practice, regardless of where you found the individual recipe. So imagine my surprise when I received this email from their publicity company, Deborah Broide Publicity, the following morning.

Deborah: Hi. Please remove the recipe from Cook’s Country. Permission was not giving to use this recipe (as I’m the one who gives permission). In the future, if you’d like to use a recipe simply email me first. Also, we do not allow our recipes to be modified (in print). Many thanks!

That last line is awesome. “We do not allow our recipes to be modified (in print).”

The assumption is that those who would modify their recipes for publication are merely piggy-backing on the hard work of the Cook’s Country editors, who apparently invented fucking potato salad. Every recipe in the history of mankind, including every single one in every single issue of Cook’s Illustrated and Cook’s Country, has been modified from a prior recipe. The U.S. Copyright Office even says lists of ingredients in themselves cannot be copyrighted, and that instructions for compiling those ingredients must contain “substantial literary expression in the form of an explanation or directions” in order to be protected by law.

Meanwhile, a federal judge this weekend wiped his ass with the Bill of Rights and issued a prior restraint order against a trio of dorks from MIT who were scheduled to appear at a hacker conference this week and describe how one could — theoretically, of course — hack a Charlie Card to get free rides on the T.

Obviously not every form of speech is protected in the U.S. For instance, you’re not allowed to incite people to violence. Or to shout fire in a crowded theater. Or to threaten the life of the president.

You are, however, allowed to describe how one could go about breaking into a safe, or a house, or any other kind of security system. The judge in the case, Douglas Woodlock, apparently bought the MBTA’s flimsy argument that telling people how to hack something is the same as actually hacking it:

Opsahl said the judge, in making his decision, misinterpreted a part of the federal Computer Fraud and Abuse Act that refers to computer intruders or hackers. Such a person is described in part in the statute as someone who “knowingly causes the transmission of a program, information, code, or command to a computer or computer system.”

Opsahl says the judge, during the hearing, likened the students’ conference presentation to transmitting code to a computer.

“The statute on its face appears to be discussing sending code or similar types of information to a computer,” Opsahl said. “It does not appear to contemplate somebody who is giving a talk to humans. Nevertheless, the court . . . believed that the act of giving a presentation to a group of humans was covered by the computer fraud, computer intrusion statute. We believe this is wrong.”

When I started this blog post, I agreed with this Opsahl guy. But now that I’ve had a chance to think about it, I find myself siding with the judge. What kind of nation would we be if we allowed our citizens to disseminate all manner of information in the public realm? The only way to ensure permanent happiness, comrade, is through a permanent revolution that purges the minds of the proletariat of all maliciousness against the state. Now if you’ll excuse me, I have an appointment to be fitted for my brown shirt.

One Hot Potato Salad [Grinder]
Court blocks MIT students from showing subway hack [Globe]

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