Inkwell: Authors and Artists

    

Our next guest is a very well-known character here in the WELL and out there
in the greater Internet community as well.  He's a frequent spokesman on
matters of law in cyberspace, and he's the author of CYBER RIGHTS: DEFENDING
FREE SPEECH IN THE DIGITAL AGE (Times Books).

Our "lead interviewer" is Stephanie Vardavas, a lawyer herself and a big fan
of baseball as well as freedom of speech, online and otherwise.
  

    

Hello everyone.

I'm very pleased to have this opportunity to interview my friend Mike
Godwin about his important book. _Cyber Rights_, which I'll refer to as
CR for the sake of brevity, was published by Times Books last year. Mike
has been thinking analytically about these issues since before most
people ever heard of the Internet. He is a fearless (and tireless)
advocate of free expression online.

For those of you reading this who don't know anything about me: as David
indicated in response 0, I too am an attorney and of course a member of
the Well, but my area of legal practice is very different from Mike's,
and I found that I learned a lot from CR, even though I followed some of
the events Mike describes, from a distance, while they were in progress.

As for my interviewee, I think I should begin by introducing Mike in a
somewhat more complete way:


For nine years, Mike Godwin served as counsel for the Electronic
Frontier Foundation, where he advised users of electronic networks about
their legal rights and responsibilities, instructed criminal lawyers and
law-enforcement personnel about computer civil-liberties issues, and
conducted seminars on civil liberties in electronic communication for a
variety of groups. Godwin has published articles for print and
electronic publications on topics such as electronic searches and
seizures, the First Amendment and electronic publications, and the
application of international law to computer communications.

In 1991-92, Mike chaired a committee of the Massachusetts Computer Crime
Commission, where he supervised the drafting of recommendations to
Governor Weld for the development of computer-crime statutes. In
1996-1997, he was one of the counsel of record for the plaintiffs in
Reno v. ACLU, the Supreme Court case that established the applicability
of First Amendment doctrine to the Internet. In 1997-1998, he was a
Fellow at the Media Studies Center, a project of the Freedom Forum.

Mike's articles about social and legal issues on the electronic frontier
have appeared in the Whole Earth Review, The Quill, Index on Censorship,
Internet World, WIRED, Playboy, and Time. He has lectured at the FBI
Academy and at the Federal Law Enforcement Training Center on the
constitutional and criminal law relating to computer crime and computer
communications.

Mike is a graduate of the University of Texas School of Law where he
served, while still a law student, as Editor-in-Chief of The Daily
Texan, the award-winning University of Texas student news-paper. Prior
to law school, he worked as a journalist and as a computer consultant.
He received a B.A. in liberal arts from the University of Texas at
Austin with highest honors, and was elected Phi Beta Kappa.



(whew)


Now, Mike, some general questions.

First. One of the stylistic surprises for me as I opened CR and
progressed through it was its first person style and very personal tone.
It worked, of course, but it was not what I was expecting. That was
obviously a deliberate choice on your part; please let us in on your
decision-making process as it related to the style of the prose.

As a corollary, please tell us about how you came to be so interested in
these issues.

Second. In CR, you go to great pains to explain the legal
underpinnings of free expression on the Net in a way that is relatively
free of legal jargon and accessible to literate people who care about
the subject. Was that a particular challenge for you? How do you think
the book would have been different if you had been writing for a legal
readership? (Other than much duller, and more footnotes, of course!) 
  

    

----------------


1) About the use of the first person and the choice of an informal tone:

There were a number of reasons I took this approach. First of all, when I
started work on the book my biggest worry was that I'd say all the right
things, intellectually and legally, but that I wouldn't reach anyone who
didn't already agree with me.  I wanted the book to be accessible to non-
lawyers, and in particular to ordinary people who were worried about the
Internet.

Secondly, I think that people remember information that's given to them in
the context of a story better than they remember stuff they learn from
nonnarrative exposition. So I made a deliberate effort to couch all the
legal issues in stories that involved real people and real-life concerns. I
didn't want these issues to come across as abstract. Usually but not always
I was part of that story because of my work for EFF -- those were the legal
stories I knew best. But I also knew that if the reader came away from the
book  with strong impressions about me yet with inadequate knowledge of how
the law works I'd have failed -- I wasn't interested in doing an
autobiography or My Life And Cases or anything like that. It was less
important to me that the reader know who I am than it was to know what it
was like for a guy like me to be in the thick of these issues and events.

The object was to demonstrate to general readers that the legal and
constitutional issues are not divorced from everyday concerns, but
intimately integrated with them. My experience in the Internet-regulation
debates has been that the pro-regulation side invariably says "It's all very
well for you to talk about the First Amendment, Mr. Godwin, but what about
the children?" Since this argument *invariably* sways some high percentage
of the general audience, I thought it was important to neutralize it
structurally, and to attempt to win readers over by putting them in my
position.

There are certainly other ways I could have structured the book, but after
lengthy consideration (five years ago, when I began work on it), the choice
I made strikes me as the best choice. Of course, whatever weaknesses I have
as a writer may have undermined this approach. If so, that's not a problem
unique to this book, but instead inheres to my writing generally.

Finally, over the course of my years with the EFF I have identified so
closely with my issues -- with the work of protecting freedom on the Net --
that I thought it was more honest to structure the book to reflect that
integration of my work and my life rather than adopt the pseudo-objective
stance of some law-related works.

2) About explaining legal issues in jargon-free language:

You're absolutely right that it's hard to do this, and the main reason it's
hard is that legal jargon is actually designed to enhance meaning and
precision rather than to obscure it. (Some critics of the legal profession
may disagree, and I certainly wouldn't dispute that some lawyers *do* misuse
legal language in order to obscure things, but what I'm saying here about
increased precision is true for the most part.) So, when one lawyer is
talking to another lawyer, the fact that both lawyers are trained to use this
very precise language when talking to each other can make their
communications very effective and efficient. (The thing I compare it to is
when the doctors on "E.R." talk to each other about medical matters -- they
use abbreviations and shorthand terms and sometimes Latin, and they
communicate things to each other very fast and very efficiently -- the
jargon speeds them up rather than slowing them down. Same with lawyers,
when legal jargon is used properly.)

But when you're talking to non-lawyers, you have to step back and talk about
this issues in non-technical language. And the thing that makes this hard is
that sometimes the non-technical language doesn't really convey the meaning
properly, either because it's less precise or for some other reason. Luckily
for me, my background as a journalist was helpful here -- I've done a lot of
writing, including science reporting, in which I explained relatively
complex stuff for newspaper or magazine audiences. So I think I had some
good habits.

When I wrote CR I set out to write a book that would be a) accessible to any
intelligent lay reader who wanted to know about free-speech and privacy
issues on the Net, b) sufficiently intellectually rigorous that a lawyer
could find it helpful in improving his or her understanding of the law (I
wanted the book to be "citable", in other words), and c) would be fun to
read. I figure that on any given page I managed to get at least two out
of three.
  

    

So, tell us, please, about the path that brought you to these issues and
concerns as your life's work.
  

    

A lot of people (usually law students who want to get a job just like mine)
have asked me how I got into this kind of work, and the short answer is
"dumb luck." A slightly longer answer is that I had the right set of
interests -- journalism, the First Amendment, computers, and criminal law --
in the right place and at the right time.

The longest answer has to do with the confluence of events that took place
back in 1989 and 1990 for me in my then-hometown, Austin, Texas. I was a law
student then, older than average for a law student. I'd just finished taking
a year off to edit the student newspaper, and was intent on finishing up my
last year of law school, getting in some experience as a law clerk, and
earning a little extra money in the process. (If I had graduated a year
earlier or a year later, I probably would have missed the events behind the
formation of EFF.)  So I didn't have loads of time on my hands, but when I
did have spare time I tended to spend it online on one or more of Austin's
BBSs (bulletin-board systems). BBSs had been a hobby of mine for some years,
but in 1989 I also began to explore Usenet, the distributed conferencing
system that you can access via an Internet connection.

Austin had more than its share of BBSs. On March 1, 1990, one of those BBSs
was seized by the United States Secret Service, which claimed at the time
that the system, run by the Austin-based role-playing game company Steve
Jackson Games. Although neither Jackson nor his company turned out to be the
targets of the Secret Service's criminal investigation, Jackson was told
that the manual for a role-playing game they were about to publish (called
GURPS Cyberpunk and stored on the hard disk of the company's BBS computer)
was a "handbook for computer crime."

 Austin's BBS community was startled, then outraged, by the seizure, which
had the potential of putting Jackson, an innocent third party, out of
business. On a BBS called "Flight" there was a hot debate about the media's
failure to pick up on Jackson's story. A third-year law student and former
journalist and Flight user, I theorized on Flight that the media hadn't
covered the story because they didn't know about it. Or, at least, they
didn't understand the issues.

 So, to test my theory, I gathered together several postings from local BBSs
and from Usenet, the distributed BBS that runs on the Internet and connected
computers, and trekked down to the Austin American-Statesman office to talk
to a friend of mine, Kyle Pope, who covered computer-related stories. I also
took him photocopies of the statutes that give the Secret Service
jurisdiction over computer crime and lots of phone numbers of potential
sources. At the same time, I called and modemed materials to John Schwartz,
a friend and former colleague who was now an editor at Newsweek.

 Pope's lengthy, copyrighted story on the Secret Service seizure appeared in
the American-Statesman the following weekend. John Schwartz's story, which
covered the Steve Jackson Games incident as well as the Secret Service's
involvement in a nationwide computer-crime "dragnet," appeared in Newsweek's
April 30 issue. The heavy-handed tactics and overbroad seizure at Steve
Jackson Games became a symbol of the law-enforcement community's
misconceptions and fears about young computer hackers, and provided a
context for Barlow's and Kapor's discussions about creating the EFF.

 Once they agreed on what needed to be done, Kapor and Barlow went back to
the WELL and drew upon the collective wisdom of that community for input
into the tactics and strategy of the newly formed foundation. The same week
they announced the EFF's formation in Washington, D.C. (D.C. was where the
announcement was, although the organization was originally based in
Cambridge, Mass.), they started the EFF conference on the WELL.

Kapor and Marc Rotenberg of CPSR had been reading my contributions to Usenet
and thought I might be a good person to hire to do what they anticipated
would be groundbreaking legal work having to do with the Internet. Marc flew
me to D.C. for a job interview, where I met Kapor, Barlow, and many other
folks who became players in the cyberspace arena.  Kapor liked me enough to
recruit me before Marc could decide whether to hire me, and so I became
EFF's first employee. Kapor airlifted me from Austin to Cambridge at about
the time President Bush was airlifting marines to the Middle East.

I don't know that this qualifies as my life's work, now that I'm no longer
with EFF. I'm considering all sorts of things, only a few of which have to
do with civil liberties work. I'd say that free speech in cyberspace was my
life's work from 1990 to 1999, but I may ultimately be doing something else
in the next phase of my life. That said, I don't think I'll ever be too far
away from free-speech issues, the constitution, or criminal law.
  

    

Well, OK, your most recent life's work, anyway.    ;>

I think that most of the people who are reading this are inclined to be
sympathetic to the cause of free expression, whether online or in "the
real world." But how does a thoughtful, reasonable person draw the line
(or lines) where property rights are at stake? Or people's reputations?
  

    

Well, the approach I've always taken has been to look at what the rules
about property and libel were before the advent of the Internet and let them
provide guidance as to what the rules should be now.

With regard to property, the primary issues raised in cyberspace have had to
do with intellectual property -- particularly copyright and trademark law.

Copyright is the major battleground right now in this country because
we have a major set of industries in the United States (publishing,
television, music, the movies, plus the software industry) whose existence
is dependent on copyright law. And every one of them has evinced some
panic about the Internet, which they view (not wholly incorrectly) as
essentially a global network of free copying machines.

As a result of this panic, they've lobbied for, and in some cases won,
changes in the copyright-law framework that affect our rights as
individuals. Partly they've done this by making it more difficult to
exercise your rights to engage in Fair Use (unlicensed but nevertheless
legal, limited use of someone else's copyrighted material). And they've
also labored to expand the criminal prohibitions against copyright
infringement. It's not for nothing that the DOJ's computer-crime unit
has been renamed "the Computer Crime and Intellectual Property Section."

My response in CR was to try and give some background to the copyright
fight, to explain what public-policy interests lie behind the law of
copyright, and to argue that these interests, rather than the panic of the
copyright-holder industries, should be our guide if we're going to change
the copyright law. I also discussed how some entities -- notably the
Church of Scientology and the Software Publishers Association -- have
misused their prerogatives under the copyright law to suppress dissent or
to advance their own agendas. And, of course, despite all the panic about
the Internet, the Net has not put any copyright-based company out of
business. (Older folks will recall that there were similar panics about
photocopiers and VCRs, neither of which seems to have undermined the
copyright industries, which have only grown stronger over the years.)

The trademark-law aspect of this tends to come up with domain-name
disputes. Big companies acquire domain names from previous holders by
threatening to sue them for trademark infringement. These threats often
lack legal merit, but that's not not helpful to the would-be defendants,
since they usually can't afford to go to court, regardless of how
strong their defense is. What I always advise folks to do in this context
is accept the first settlement offer -- that's often the only way a
potential defendant can walk away from one of these disputes without being
hurt.  In the meantime, Congress has been persuaded to attempt to outlaw
"cybersquatting" -- the "crime" of registering a domain name in order to
sell it to a trademark-holding company. As if the legal framework already
in existence didn't already give the trademark holders incredible clout.
(But now they'll be able to call in the FBI to put even more pressure on
the domain-name holders.)

As far as libel law goes, I address that subject pretty extensively in CR.
Rather than write another long essay here, let me just note that the
policy behind libel law was to make it possible for p[eople whose
reputations are damaged by mass media to correct the record and to
discourage mass media from being irresponsible. I discuss at length the
extent to which the Internet has levelled the playing field between
traditional mass media and the rest of us, and how the ability to correct
the record on the Net tends to undercut the impulse to sue people for
Net-based libel.

If I had to sum my approach up -- and I guess I do here -- it's that we
should wait for problems to actually materialize before we set out to
alter the nuanced balances of the existing legal framework. My focus has
been less to call for legal change than to point out that the existing law
often already has addressed the problems that people are panicking about.
  

    


Fair enough.

But let's get down to a case or two.

Matt Drudge -- a compensated provider of content to America Online --
published an unsubstantiated assertion about White House staff member
Sidney Blumenthal, in which it was alleged that Blumenthal had a record
of spousal abuse that had been "covered up." It appears that Drudge made
no meaningful effort to ascertain the truth or falsity of the allegation
before publishing it (his well-known modus operandi as a purveyor of
gossip).

Blumenthal sued Drudge and AOL for libel. The case against AOL as a
defendant was dismissed. But ...

AOL had to know about Drudge's MO when it signed him on as a content
provider. Even if it didn't, didn't it have some kind of duty to
inform itself? It is reasonable to take the position that AOL can't
possibly be held responsible for the postings of its members. But if AOL
is paying someone (or otherwise compensating that person) to provide
content for AOL's service, why is it that AOL can escape liability for
publishing that person's words? Even if libel law as currently
constituted supports this result, shouldn't we be concerned as a matter
of public policy?
  

    

I don't really accept all the premises of your question (for example, AOL
also compensates ABC News for the use of its content, but we don't normally
assume that any libel claim against ABC News should therefore apply against
AOL as well), but it turns out there's a really easy answer that has nothing
to do with the Internet and nothing to do with AOL's relationship with
Drudge.

To wit: For the last 35 years, the law in the United States has been
that no libel defendant can be held liable for the defamation of a public
official without a showing of fault, and that fault has to be greater than
mere negligence.

So, even if AOL arguably had a duty to review Drudge's content, or not to
hire Drudge, failure to do that duty is going to count as mere negligence.
Conclusion: no liability, period.

If you don't like that answer, your problem is with American libel law in
general, and not with libel law as it applies on the Net. Lots of reasonably
thoughtful people have criticized American libel law on these and other
grounds, but I personally think the balances struck in New York Times v.
Sullivan (1964) and subsequent Supreme Court cases dealing with libel are
good ones.

A very good discussion of how our libel law got the way it is can be found
in Anthony Lewis's lucid and accessible book about New York Times v.
Sullivan: MAKE NO LAW.

Having said all that, I should add that I think it would be next to
impossible to prove that AOL had somehow been negligent in contracting with
Drudge (it's important to note here that he's a contractor and not an
employee, just as ABC News is -- this puts some liability distance between
him and AOL). Consider: the Blumenthal case is the first instance of
anyone's suing Drudge for libel. Since that's the factual background, how
could it be argued that AOL knew or should have known that Drudge was going
to engage in defamation? Answer: it really couldn't be argued, given the
facts as we have them.

I write about the Drudge case in some detail in CR. You can also read my
Salon article about Drudge's case at
<http://www.salon.com/21st/feature/1998/02/02feature.html>. I think I was
the first political liberal to state that Drudge will win his case and should
win it, based on established constitutional-law principles. (Although some
people dispute that I am a liberal.)
  

    

I understand that. I was under the impression, which may have been
incorrect, that AOL managed to get itself dismissed as a defendant before
Drudge did, and that's the distinction that drove the question. Sorry if
it was unclear to you.

What about some of the new technologies and their implications for
intellectual property owners? There's a company called "Third Voice" that
makes a browser plug-in that allows any user who has it to annotate any
web site with commentary that will overlay the site owner's content, which
annotations are visible to anyone else browsing with the same plug-in. Is
this kind of product a threat to copyright rights, in your view?
  

    
Please excuse the interruption.

May I suggest that you title your next book _Godwin's Law_?  Of course
it's a no-brainer.

Do carry on.
  

    

Right, vard, AOL managed to get itself dismissed as a defendant, whereas
Drudge did not do so. This was due to Sec. 230 of the Communications Decency
Act, which basically provides a safe harbor for distributors of content
for content they did not originate.

But my point was, even without such a statutory protection in place, AOL
should not be held liable for any defamation of Sidney Blumenthal, partly
because of the mere-negligence-is-not-enough principle of Times v. Sullivan,
and partly because it would be hard on the facts we've got to show any
breach of a duty of due care by AOL.

I sort of got off on the duty-of-AOL tangent because of the part of your
question that dealt with whether AOL had any responsibility for Drudge's
content.

It was Sec. 230 that enabled AOL to prevail on a motion dismiss because it
set a rule that didn't require any further factfinding. Drudge will win his
side of the case, I believe, because further factfinding won't establish a
basis for liability.

silly, I'll forward your suggestion to my editors. I kind of like it, but
I'm not how much currency "Godwin's Law" has in the book marketplace.

vard, I'll address your other question in another posting.
  

    

Third Voice is certainly an interesting product, vard, and to be frank it
kind of gives me the creeps (one way to understand it is as a collective
conspiracy to graffiti-ize other people's Web sites).

From a legal standpoint, what we have are two competing interests -- the
copyright holder's right to control the use of his or her copyrighted
material, and the Fair Use right to quote other people's material when
you comment on it or criticize it.

This hasn't really been settled in the courts yet, so the question remains
open whether Third Voice's integration of a commentary layer into your
browser is creating a derivative work (in which case the copyright
holder presumptively has some right of control over your use of his or her
material) or creating something analytically distinct (which may mean that
the copyright holder just has to lump it) or "quoting" the copyrighted
content (in which case we get to ask all the standard Fair Use questions if
Third Voice leads to a litigated dispute).

I really can't predict which way this will go. It seems to me that this is
one of the rare instances in which a new technologiy has given rise to a
genuinely new problem instead of a variation on an old one. Most of the time
I'm pretty good at predicting from existing, pre-Internet rules what the
outcome will be, but Third Voice is a conundrum.

Of course, the product may never catch on, which may make the whole debate
moot.

One of the reasons I think the Web has been so successful (at least insofar
as inspiring businesses to invest in it) is that it's really just the
instantiation in a new medium (the Internet) of an old paradigm (print
publishing). Unlike a many-to-many medium like Usenet or the WELL, the Web
functions much the way a newspaper does, by having someone assemble material
at a central point (or points) and then enabling its distribution to a
largely passive (rather than interactive) audience. The major difference is
not in the mode of communication -- it's just that the Web is a whole lot
cheaper. You don't have to change your thinking that much, if you're an old-
media guy, to figure out the Web.

That's why Third Voice is so interesting -- it's a paradigm shaker, and it
reminds us that the Web is not just cheaper than print (or broadcast) but
may be qualitatively different as well.

In short, I don't know that I have a real answer to your question about
Third Voice, vard. I'm still thinking hard about it.
  

    
This might be a stretch, but isn't 3rd Voice sort of like putting a
marked-up, sticky-noted newspaper article up on the company bulletin
board (a physical, not electronic one). Does the technology actually
put the added or altered content on the same server as the original?

Got any urls to point us to on this? That way I can let you continue
talking about the law ;-)
  

    
Ah-ha! < http://www.thirdvoice.com/demo/index.htm>
  

    

"Does the technology actually
 put the added or altered content on the same server as the original?"

Nope.
  

    
One way of looking at Third Voice is as a separate publication
that offers commentary and criticism, like a film magazine sold in
kiosks strategically stationed in front of movie theaters.

Suppose someone set themselves up as an entertainment service, selling
headphone access to private-frequency broadcasts tuned
to a tourist's location in a city.   So a patron of the headphone service
walks by the Virgin Megastore.  The location is tracked electronically and
a voice booms out "That place is sucky -- there's a much better music store
down the street."

Is that illegal?

Another way to look at Third Voice is as a pirate radio station,
jamming the registered frequency/domain of a licensed station with
cross-talk.
  

    

I think it's closer to the "separate publication" model, Lenny, because
the Third Voice content doesn't reside on the same servers as the original
content. Also, I don't think the pirate-radio-station model holds, since
you have to subscribe to Third Voice in order to get the interference
(which otherwise you'll never "hear").

Your headphone-service analogy looks pretty good, and offhand I don't
see anything illegal about it.
  

    
What about the argument that a web address is like a
registered trademark (or brand name) and Third Voice abuses it by
providing content that could be falsely perceived as
originating with the licensed owner?
  
Or (this is pretty far-fetched), someone sells virtual
reality goggles that superimpose a Sluggo Cola logo
("slimiest drink in the galaxy") whenever someone looks
at a can of Coke?
  

    
I'm eager to hear the responses to <jroe>'s questions, but have to
say, 3rd Voice sounds almost Talmudic and potentially represents a
utility we all might want to have on the web (to be able to annotate,
share and attribute annotations). 

What am I missing here, except the desire of authors of any kind to
have nobody publicly comment on their work?

Ok... time to shud'up and listen!
  

    <scribbled by silly>
  

    

'What about the argument that a web address is like a
 registered trademark (or brand name) and Third Voice abuses it by
 providing content that could be falsely perceived as
 originating with the licensed owner?'

Well, "like a trademark" doesn't make it a trademark, so that really doesn't
fly, legally.

Moreover, I don't think there are any facts to support a claim that anyone
is confusing Third Voice commentary with content originating on Web site
that's the subject of that commentary.

As to whether we "need" Third Voice, well, the market will tell us the
answer to this over time. But I haven't detected any rush to install it.

I don't believe the resistance to Third Voice is about authors' not
wanting any criticism. I think it's about authors wanting you to read
their work without having commentary scribbled all over it. 
Two different things, really.
 
  

    

The copyright implications of Third Voice interest me -- isn't the annotated web page  
a kind of derivative work, under US copyright law at least?
  

    
The thing that isn't clear is whether the annotations might be
be considered to reside on the same page.  I'm not a lawyer,
so I don't know how far the law is willing to go in bending
traditional definitions to describe new situations.  To the
user of the service, the annotations appear to be on the same
page as the source work, even though they don't reside physically
on the same server.   Mike says there aren't any facts to support
the idea that a user might confuse Third Voice content with source
material.  I haven't used it, so I don't know how easy it would be
to hack something that *did* look like it was part of the source
page.

The point I was trying to make about a web address being like
a trademark is to ask whether someone might file a suit calling
for an expanded interpretation of current intellectual property
rights.  Haven't there been a number of suits about the 
connection between brand names and registered domain names?
Playboy.com, "Big Blue," etc?  Web browsers are rapidly advancing
to the point where the user can enter a trademark or brandname on
the URL line and  connect to a page authored by the
product vendor.
  
I'm not saying that I buy this argument, but what if someone claimed
that their brand name had been compromised because one Third Voice
user entered it on the URL line and got a corporate page "altered"
by another Third Voice user?   User 1 was trying to order a "Coke"
and User 2 caused User 1's browser to display the Sluggo Cola logo
superimposed over the place on the page where the original had the
Coke logo.
  
Does Third Voice try to protect itself from suits like this
with some kind of waiver of responsibility for what users
do with the product?  Does it make any difference?  Could
someone convince a court that the owner of a source page
suffered economic damage or compromise of reputation because
of concatenation of their work with Third Voice content?
I have no idea.  That's why I'm asking.
  

    

As I suggested before, vard, the question of whether the annotated Web page
is a derivative work is an unsettled one. I can imagine a court's ruling it
a derivative work, but I can just as easily imagine a court's ruling that
the Third Voice content is something analytically separate.

Lenny, I don't think the courts will ever rule that the Third Voice
content "resides on the same page."

As to the trademark issue -- I don't see Third Voice as raising any
trademark issues whatsoever. It's really all about copyright. While it's
true that domain-name disputes can implicate trademark issues, Third Voice
doesn't raise any domain-name issues.

I think that if you take a look at Third Voice you will find your
hypothetical questions mostly answered. I'd prefer not to get into
speculations about factual scenarios that the Third Voice product does
not in fact give rise to.

At this point, Third Voice doesn't have to worry about its strategies
to protect itself from trademark lawsuits because nobody's bringing
such lawsuits, or even threatening to bring them.

'Could
 someone convince a court that the owner of a source page
 suffered economic damage or compromise of reputation because
 of concatenation of their work with Third Voice content?'

Sure. There's such a thing as "business libel."

'User 1 was trying to order a "Coke"
 and User 2 caused User 1's browser to display the Sluggo Cola logo
 superimposed over the place on the page where the original had the
 Coke logo.'

Can't happen, with current versions of the product.
  

    

I should add that I can talk more authoritatively about cases that have
actually happened, or that are about to happen.