Are The Forgeries A Crime? (II)

We have a fascinating suggestion from a law professor who will be unnamed until I get his permission. However, his e-mail is as follows:

If CBS is correct that Killian created these memos for his private file, then he has copyright protection, presumably passed to his heirs. Since the family appears to have denied their authenticity it is unlikely CBS obtained their permission. An infringement suit will permit discovery. The claim of fair use will be raised, but cannot be decided without discovery. Of course, if the memos are forgeries then the family has no copyright. Perhaps some lawyers could volunteer their services.

The documents were allegedly created before the 1976 Act, but are covered by it nonetheless. Section 303 of the 1976 Act provides that documents created prior to the act but unpublished have the term of protection provided by Section 302. 17 USCA 303.

I am not a lawyer, but I am keen to see feedback from those who are. My guess is that an heir of Killian (presumably a family member) would need to be the plaintiff; presumably, the legal talent would be donated, or paid for by a shadowy 527. File suit against CBS, go through discovery, and see what happens.

This approach suggests a more obvious avenue - one of Killian's heir could assert that, per CBS, these documents are Killian's personal effects, and should have passed to his heirs. They have only come in to the possession of CBS because of theft. Whodunnit? And who would investigate?

Hmm. CBS might argue that, because these documents were created by Killian in his official capacity, they are the property of the State of Texas, or the TANG. But, if the documents are authentic, isn't there still a theft question - did anyone offer these to the proper authorities, or get permission to pass them to CBS?

And some commenters in this post suggested that forgery of a government document is a crime; if CBS can persuade the proper authority that these documents ought properly to belong to Texas, CBS may have a whole new problem if they are forgeries.

We will hope to vex Eugene Volokh with this.

DEVELOPING...

Comments

[Tom]

Copyright violation is an untenable accusation. First of all, it would be a civil violation only, not a criminal offense. More importantly, if the documents are real, they were created by a government employee in his official capacity and therefore they are public domain. If they are forgeries, the copyright is vested in the forger, who presumably approves of their use by CBS.

[Tom]

Copyright violation is an untenable accusation. First of all, it would be a civil violation only, not a criminal offense. More importantly, if the documents are real, they were created by a government employee in his official capacity and therefore they are public domain. If they are forgeries, the copyright is vested in the forger, who presumably approves of their use by CBS.

[Russ]

Just spitballin' here... but it occurs to me that forging a document over the signature (real or otherwise) of a TANG LtCol might be construed as "impersonating an officer," which is almost certainly a crime.

Any doubt I have about that is due to my imperfect (read, "scant") knowledge of Texas law. Impersonating a "regular components" officer, however, would certainly appear to be a crime.

18 U.S.C. Sec. 912 says:

Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both

Maybe there's room for interpretation there. I dunno: IANAL.

[Antonious]

Wouldnt it just be easier to apply 'election fraud' or 'forgery of government document' charges? I would also think that you could concievable apply 'slander' as well (from Killian's family POV).

[Carridine]

Breaking the tyrannical grip on CBS and other entrenched orthodoxies is my sincere hope! If a small lawsuit will do it, HOW CAN I HELP?

Because I still want to see charges filed against John Kerry, for either 1) providing aid and comfort to the enemy during a time of declared war; OR 2) lying under oath before the US Senate. Either/OR, but damned if he can have it both ways.

How can we (I, an American citizen) pursue filing papers against JFKerry?

[Andrew X]

What about libel? Don't these memos show Killian to be acting in a manner that is less than honorable, possibly outside of regulations, ouside of his character, and show him willingly complicit in the accused behaviour?

Were the Killian's to sue CBS for doing this maliciously, the case might be borderline, specifically in terms of libel, and there's a good chance they would lose. But "winning the case" would not be the issue here. Discovery and subsequent vindication would be. Would this not be an option?

[Pink Pig]

There are plenty of ways that a criminal case could be made here. For example, if the documents were ever sent through the mail, then that could constitute mail fraud. I'm also pretty confident that it could be prosecuted under RICO; all that is required is proof of a pattern of fraud, which in regard to 60 Minutes is pretty much a slam dunk.

[JM Hanes]

The question I keep waiting for someone to address is what "personal" file are we talking about here in the first place?

BTW, did you catch this item from RatherBiased noting that:

"Over at the liberal grassroots site IndyMedia, Pablo Kristophoros says that the disputed memos cited by CBS are in author Kitty Kelley's upcoming book The Family : The Real Story of the Bush Dynasty.

For some reason my hotlink html didn't work. Find quote above at:
http://ratherbiased.com/news/content/view/231/2/

[Alex]

You're arguing contradictory theories here. If the memos were created by Mr Killiam as part of his duties as a TANG officer, they are almost certainly work product, and the property of either the Texas of federal government, not the Killiam family. I really question whether the law professor you quoted thought his statement out.

It they are forgeries as you claim, then of course they are the property of neither the Killiam family nor the TANG.

I don't see the Killiam family having any sort of a credible claim against CBS.

There isn't a libel claim either. THe memoes don't place Gilliam in a bad enough light that they could reasonably be said to libel him. Others have confirmed that the basic story they convey is authentic, whether or not the docs are. And the dead can't sue for libel anyway.

Since the source isn't coming forward, it's likely that it's somebody else who had access to TANG files and removed the docs without authorization or, possibly, forged them. If they forged the materials and took money from CBS, then they (but not CBS) are guilty of criminal fraud. But CBS as a rule doesn't pay sources, so this is unlikely. If the stuff is genuine, there may be other statutes which can be used to prosecute the removal, but those who claim to support the rights of individuals against the overweening power of big government really should think about whether that is a prosecution they should support.

[J_Crater]

Looking at the DOD site, the most like criminal offenses committed are mail fraud, wire fraud, false impersonation with intent to defraud, or false official statement.
I doubt any of these would apply to CBS, but rather the source of the documents. Although CBS could have exposure with Accessory after the fact or Conspiracy.