Wednesday, December 14, 2005

DMCA screws a doc

David Egilman is a genuine expert in occupational medicine. And he doesn't mince words when it comes to murdering asbestos companies and their like. He also had a password-protected website that was hacked into by two blue chip law firms, Jones Day and Keller & Heckman of Washington. They used the results to claim to the judge Egilman had violated a gag order.

Dr. Egilman, bless him, sued the arrogant bastards under the Digital Millennium Copyright Act (DMCA), the very statute record and movie industries are using to go after teenagers and grandmothers for trading songs. I guess DMCA covers these little guys. It doesn't seem to cover Dr. Egilman, at least according a District of Columbia federal judge who dismissed the suit.

Specifically, in his suit Egilman accused the Keller firm of stealing his password and sharing it with Jones Day lawyers during a 2001 trial in Colorado.
Egilman had testified on behalf of the first four of 50 workers at Rocky Flats nuclear weapons plant who unsuccessfully claimed that the federal government colluded with the world's largest beryllium maker, Brush Wellman Inc., to hide the health dangers of the metallic element.

Despite a broad gag order by a Colorado state court judge, Frank Plaut, in Ballinger v. Brush Wellman Inc., No. 96-CV-2532, Egilman had posted critical material about Jones Day and Brush Wellman on his password-protected Web site in what Plaut ruled was a violation of the gag order.

Plaut ordered jurors to disregard Egilman's testimony as a sanction after learning from Jones Day that the posting included accusations of potential illegal conduct by Jones Day, and allegations that a Brush Wellman medical doctor was educated in Nazi Germany, according to press accounts at the time.

Plaut called the information "scurrilous and inflammatory" at the time.

Egilman, who has testified in dozens of toxics trials and was the expert in the recent Texas Vioxx trial that resulted in a $253 million verdict, limited Web site access to his staff and his Brown University students. He posted uncensored information on occupational illness and related litigation, including previously confidential corporate internal documents related to many toxic torts.

Jurors ultimately sided with Brush Wellman and, without Egilman's testimony, rejected the workers' claims that lung damage from exposure to radioactive beryllium could have been avoided. (National Law Journal)
So the workers were hurt by the judge's ruling which was a result of the acts of the Keller & Heckman and Jones Day firms. Egilman sued them on the grounds his private website was copyrighted material, stolen by the law firms for their personal gain and this violated the DMCA. But federal judge Henry Kennedy Jr. ruled that hacking into a private computer, stealing the password, and then giving it to someone else doesn't "circumvent" a technology used to control access.


So now we know the underlying principle of the DMCA, according to a federal judge: If it looks like you are screwing the Big Guys, even a teensy weentsy bit, it is a violation of the DMCA. If the big guys are screwing you, that's tough.