September 2003 Archives

Excellent RIAA & File sharing summary

Tech Law Advisor has an excellent page which answers the question Where can I find good information about the RIAA's stance on file-sharing? This is as complete, comprehensive and coherent as any source that I've seen.

Do-Not-Call List in Limbo

Columbia professor and FindLaw columnist Michael Dorf: The Legal Status of the Don't-Call Registry.

First, a federal district judge in Oklahoma ruled that the FTC lacked authorization from Congress to establish the no-call registry. Reacting with dizzying speed, Congress overwhelmingly passed and President Bush signed new legislation clearly granting the FTC the necessary authority to maintain and enforce the list.

Before the ink was dry on the new law, however, another federal district judge, this one based in Colorado, ruled that the no-call list violates the First Amendment. If that ruling stands up on appeal, then the only remaining move for Congress would be to propose a constitutional amendment allowing the no-call list. And judging by the speed with which Congress reacted to the Oklahoma ruling, it might do just that.

But the drastic step of amending the Constitution probably won't be necessary. The district court in Colorado misread the First Amendment.

FTC chairman Timothy J. Muris testified before the Senate Committee on Commerce, Science and Transportation discussing the implications of the Denver court's ruling and the FTC's desire to implement the do-not-call list.

The FTC filed an Emergency Motion For A Stay Pending Appeal and Expedited Briefing and Argument with the Tenth Circuit.

Although the FTC list is not going into effect tomorrow, the FCC do-not-call provision remain in force and will go into effect on October 1.

Samuel Bourdin, the son of fashion photographer Guy Bourdin, has sued Madonna, claiming that sets for the video to her song "Hollywood" copied his late father's images.

The lawsuit, filed Friday in U.S. District Court in Manhattan, accuses Madonna of copyright infringement for her imitation of poses and images in at least 11 works of Bourdin, whose photos were published in French Vogue from the mid-1950s through the late 1980s.

GuyBourdain.org has stills from the video for "Hollywood" next to images from stills from Bourdin's work: Madonna Copy & Paste Guy Bourdin.

Dialing for Dollars

Yale law professor Ian Ayres contributed an Op-Ed to the NY Times: Dialing for Dollars, which proposes a market solution for the telemarketing problem.

This concept of "authorized intermediation" simplifies the government's regulatory burden. The trade commission doesn't have to decide what types of calls to connect; it can simply leave it to the marketplace to offer the kind of filters that families really want. Families would benefit by having greater control of a scarce resource: their privacy.
Ayres describes his proposal in greater detail in a 2003 article in the Yale Journal on Regulation, coauthored by Matthew Funk, Marketing Privacy: A Solution for the Blight of Telemarketing (and Spam and Junk Mail), 20 Yale J. on Reg. 77.

This Time It's Personal

Wired News: Spam: This Time It's Personal. Finding and fighting domain-stealing spammers is not easy.

Freedom of information around the world

Freedominfo.org released their 2003 Global Survey, Freedom of Information and Access to Government Records Around the World, which examines the freedom of information laws in the more than 50 countries that have enacted such laws.

P2P developments

The ACLU, along with five library associations, the Internet Archive and Project Gutenberg, filed an amicus brief in MGM v. Grokster, in support of the defendants-appellees. The ACLU argues four points:

  • Liability for contributory infringement must depend not only on actual knowledge but also on the ability to act upon such knowledge
  • liability cannot turn on an analysis of the percentage of current use that constitutes direct infringement
  • Software developers should not be required to modify their products to facilitate enforcement of copyright
  • Free speech and the public interest are served by rules that allow new and innovative mediums of communication to develop and flourish.

Washington Post: Use of Subpoenas to Name File Sharers Criticized

NY Times: A.C.L.U. Challenges Music Industry in Court

News.com: ACLU takes aim at record labels

Today, the Senate Committee on Governmental Affairs, Permanent Subcommittee on Investigations held a hearing on Privacy & Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry.

Internet.com reports: RIAA Settles 63 More Infringement Suits

Downhill Battle launches their P2P Legal Defense Fund

Moby on the RIAA:

personally i just can't see any good in coming from punishing people for being music fans and making the effort to hear new music.
i'm almost tempted to go onto kazaa and download some of my own music, just to see if the riaa would sue me for having mp3's of my own songs on my hard-drive.

Music, Sharers, Lawsuits, Yadda

Studios Moving to Block Piracy of Films Online. "If Hollywood executives have learned anything watching their peers in the music business grapple with online file sharing, it is how not to handle a technological revolution."

AP: Makers of Kazaa Are Suing Record Labels: "Sharman Networks Ltd., the company behind the Kazaa file-sharing software, filed a federal lawsuit Monday accusing the entertainment companies of using unauthorized versions of its software in their efforts to root out users. Entertainment companies have offered bogus versions of copyright works and sent online warning messages to users."

Wired News: RIAA Goes After the Wrong Gal: "In a possible case of mistaken identity, the recording industry has withdrawn a lawsuit against a 66-year-old sculptor who claims never to have even downloaded song-sharing software, let alone used it."

Boston Phoenix: The Empire strikes back. "Amid declining CD sales, weak releases, and the continued rise of online file-sharing, the five major labels are fighting to regain market share"

Nike, FIFA and "USA 2003"

Can FIFA have a trademark over soccer-related uses of "USA 2003?" Nike thinks not, and went to Federal court to get a declaratory judgment. The AP reports: Nike sues over trademark rights to soccer

Sports apparel giant Nike Inc. sued soccer's international governing body Wednesday, saying it was entitled to use the words ‘‘USA 2003" to promote the female U.S. soccer team despite claims by the association that those words violate its trademark rights.

In a lawsuit filed in U.S. District Court in Manhattan, Nike said that it wanted to take pre-emptive measures after the Federation Internationale de Football Association threatened its own legal action.

Air Travellers & Data Sharers

Wired News: Status Quo for Travel Privacy: Most airlines "are saying they do not plan to make any changes to their policies, even though they are weaker than JetBlue's stated policy."

JetBlue CEO David Neeleman discusses JetBlue's sharing of its releasing customer data with a defense contractor:

You may have recently read or heard that during the summer of 2002, in response to a special request from the Department of Defense, JetBlue provided certain customer data to Torch Concepts, a contractor for the Department of Defense, for a project concerning military base security. ... We were not paid for providing the information. It was a well-intentioned attempt to assist the Department of Defense in a national security matter.

JetBlue retained Deloitte & Touche to assist in "analysis and continued development of its privacy policy."

Happy Birthday, We'll Sue

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Snopes discusses the copyright status of "Happy Birthday". While the music is in the public domain, the words are copyrighted. Time Warner owns the publishing rights. The copyright on "Happy Birthday" will expire in 2030 at the earliest.

Oops

Boston Globe: Recording industry withdraws suit

he recording industry has withdrawn a lawsuit against a Newbury woman because it falsely accused her of illegally sharing music -- possibly the first case of mistaken identity in the battle against Internet file-traders.

Privacy advocates said the suit against Sarah Seabury Ward, a sculptor who said she has never downloaded or digitally shared a song, revealed flaws in the Recording Industry Association of America's legal strategy. Ward was caught up in a flood of 261 lawsuits filed two weeks ago that targeted people who, through software programs like Kazaa, make copyrighted songs available for others to download over the Internet.

Jury convicts man in DMCA case

News.com reports: Jury convicts man in DMCA case

A federal jury has convicted a Florida man of violating the Digital Millennium Copyright Act, in the first jury-trial conviction under the controversial law, according to a U.S. attorney's office.

The Los Angeles jury found 38-year-old Thomas Michael Whitehead guilty on Friday of selling hardware that could access DirecTV satellite broadcasts without paying for them, according to the U.S. attorney's office in Los Angeles.

Jury convicts man in DMCA case

News.com reports: Jury convicts man in DMCA case

A federal jury has convicted a Florida man of violating the Digital Millennium Copyright Act, in the first jury-trial conviction under the controversial law, according to a U.S. attorney's office.

The Los Angeles jury found 38-year-old Thomas Michael Whitehead guilty on Friday of selling hardware that could access DirecTV satellite broadcasts without paying for them, according to the U.S. attorney's office in Los Angeles.

UK passes anti-spam law

UK bans spam messages. "Under the new law, spammers could be fined £5,000 in a magistrates court or an unlimited penalty from a jury," but not land in jail. The law goes into effect December 11, but does not cover business e-mail addresses.

Critics charge that Anti-spam laws 'lack bite'

Unwanted communication from outside the UK is not covered, and it only targets private e-mail addresses and not business to business e-mails.

But the government has not defined the difference between business and personal addresses, which could give spammers a defence if they do end up in court, say campaigners.

Copyright, the Internet and... Hitler?

Simon Waldman, the director of digital publishing at Guardian Newspapers in Britain, obtained a 1938 article about Hitler's home from Better Homes & Gardens and posted scans of it on his personal website. The magazine asked him to take it down, for violation of copyright. Should Waldman's actions constitute copyright violation, or does it fall within a fair use?

Wired News: Old Hitler Article Stirs Debate 

American law recognizes a "fair use" exception to copyright, which permits limited reproduction for critical, satirical or educational use, where copying would not affect the market for the original work. U.K. copyright, however, recognizes a related concept called "fair dealing," which Jaszi said tends to be interpreted much more narrowly than its American cousin. He added that the "public interest" exception is more of a theory than a reality in current U.K. law, and probably would not apply to this case.

NY Times: Hitler at Home on the Internet

The episode is an object lesson in the topsy-turvy world of copyright and "fair use" — an area made far murkier by the distributive power of the Internet and the subsequent crisscrossing of international legal codes. In the United States, the posting would most likely be considered fair use, said Wendy Seltzer, a lawyer for the Electronic Frontier Foundation and a fellow at the Berkman Center for Internet and Society at Harvard Law School. "Reprinting the article now, 65 years after its original publication, strikes me as more like reporting or commenting on a news story, or fair use, than photocopying a current scientific article to save the cost of buying more magazines," she said.

Contract by typos unlikely

LawMeme's James Grimmelman looks at Verisign's terms of service for its "Site finder" service and asks: VeriSign Hijacks DNS Typos . . . And Creates Binding Contracts?

VeriSign hasn't been very popular lately. Its "SiteFinder" program, which basically redirects all failed .net and .com DNS lookups to its own site, has been drawing intense criticism. "Breaks the entire Internet" is at the milder end of the complaints.

Attention so far has been focusing on the ethics of the move (positively satanic), its effects on DNS and non-Web applications (Considered Harmful), and on possible technical responses (Software Aimed at Blocking VeriSign's Search Program). On the legal side of the fence, though, we're not just talking about a can of worms. We're talking about an oil drum of Arcturan Flesh-Eating Tapeworms.

Dispatches from the Music Front

Since the RIAA lawsuits, the New York Times has covered digital copyright issues nearly every day. Here are some of the latest, plus some other articles.

NYT: Think Debate on Music Property Rights Began With Napster? Hardly. Sheet music, wax cylinders, records, radio and audio tape have all been in the forefront of the struggle for control over ownership, copyrights and distribution.

NYT: Music's Struggle With Technology

Long before girding against the Internet, for example, the entertainment industry objected to cassettes and videotapes because they would allow people to copy music and programming without making additional payments. Even FM radio was opposed by the record companies at the outset because the high fidelity broadcasts were free. The early defenders of the industry did not understand the ways that the power of the new communications tool would help them market their goods to a broader audience.

NYT: Students Shall Not Download. Yeah, Sure.

NYT: Turn On. Tune In. Download.

Pretty much from the moment that music ''file swapping'' made its way into the public consciousness by way of Napster, there has been a vaguely ''Reefer Madness'' quality to the discussion of what the practice has meant to its college-age-and-younger participants. We have heard again and again that this new generation is coming to believe that music is something you don't pay for but rather simply take. That idea is in the air again since the major recording labels recently started filing what they say will be thousands of lawsuits against people who have used file-sharing software like KaZaA to download songs they have not paid for.

Venture capitalist Tim Oren looks at different ways to create hits in the music industry, outside of the major label system.

Time: Playing in the DarkNet. Music swappers go back to the digital underground.

Electronic voting and election fraud

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Salon: An open invitation to election fraud

Not only is the country's leading touch-screen voting system so badly designed that votes can be easily changed, but its manufacturer is run by a die-hard GOP donor who vowed to deliver his state for Bush next year.

File under Trademark Infringement

The Online Computer Library Center filed a lawsuit in federal district court in Ohio against New York's Library Hotel for trademark infringement, because the hotel's room numbers are based on the Dewey Decimal system, for which OCLC owns the trademark.

The complaint (courtesy of beSpacific):

This is an action for trademark infringement under the Lanham Act, 15 U.S.C. §1051 et seq.; 15 U.S.C. §1114(a); unfair competition, passing off, false advertising and false designation of origin under the Lanham Act, 15 U.S.C. §1125(c), arising from Defendant's unauthorized use of OCLC's world-famous trademarks DEWEY DECIMAL CLASSIFICATION, DEWEY and DDC, as well as elements of the Dewey Decimal Classification System in its hotel concept, marketing and promotion.

NY Times: Where Did Dewey File Those Law Books?

"The Dewey Decimal System is a product, a trademark, a brand name," said Joseph R. Dreitler, a lawyer for the Online Computer Library Center, a nonprofit library cooperative that filed the suit last week in Federal District Court in Ohio. "The idea here isn't to put the Library Hotel out of business. The idea is to protect Dewey and the Dewey Decimal System trademark."

AP: Library catalog system owner sues book-based New York hotel

Perhaps the hotel should switch over to the Library of Congress Clasiffication system.

JetBlue and CAPPS II

The backlash begins against JetBlue for sharing its passenger data with TSA contractor Torch Concepts. EPIC filed a complaint with the FTC, and a group of passengers filed a class action suit

Reuters: JetBlue won't help test airline security program

"(JetBlue) decided against further participation unless federally mandated due to concerns for customer privacy and the uncertainty of the final structure of CAPPS II," the airline said in a written statement.

AP: JetBlue Sued For Disclosing Passenger Info

The class-action lawsuit, filed in Utah's 3rd District Court, alleges fraudulent misrepresentation, breach of contract and invasion of privacy.

EPIC: Complaint and Request for Injunction, Investigation and for Other Relief

As set forth in detail below, JetBlue Airways Corporation and Acxiom Corporation have engaged in deceptive trade practices affecting commerce by disclosing consumer personal information to Torch Concepts Inc., an information mining company with its principal place of business in Huntsville, Alabama, in violation of 15 U.S.C. § 45(a)(1). JetBlue Airways Corporation and Acxiom Corporation engaged in these activities without the knowledge or consent of the affected consumers, and in contravention of public assurances that the personal information it collects would not be disclosed to third parties.

House Bans Taxes on Internet Access

AP: House Bans Taxes on Internet Access. The ban permanently extends one, enacted in 1998, which ends in November. All types of Internet access, from dial-up to broadband, are exempt from the tax.

How file sharing works. Is it wrong?

Today's NY Times Circuits section includes two articles on file sharing.

Is It Wrong to Share Your Music? (Discuss)

"People don't know what they're getting into when they buy a computer," said Korbi in a conversation after Ms. Kriger's class. "I think Dell should send out a contract for parents to sign, saying you agree not to use it for illegal purposes. I don't know how else they're supposed to get people to stop."

His Beyonce, Her Beatles: A Primer on Trading

A file-sharing system basically works like this: you download and install a file-sharing program like KaZaA, which allows you to search the Internet for specific material that somebody else's computer may have. When you find it, you can get a copy of the file. In exchange, you make a folder of your own files to be shared with other users. Because all of this trading is done directly between individuals, it is commonly referred to as peer-to-peer, or P2P, networking.

Verisign breaks the Internet

Verisign, the company that manages the .com and .net domains, introduced a new system this week that redirects surfers who mistype domain names to a Verisign site called "Site Finder." The Verisign site includes a search engine from paid search company Overture and a way to buy unregistered domain names. By doing this, Verisign changes the way that the Internet has worked since its inception and breaks a wide variety of programs that depend on unregistered domain names not leading to a site.

NY Times: Disputes Erupt Over Service for Poor Internet Typists

Salon: Thanks, VeriSign, for breaking the Internet

And finally, the situation is summarized in a cartoon strip by User Friendly.

Apple sues Apple

BBC reports: Beatles sue Apple over iTunes

The Beatles' record label Apple Corps is suing Apple computers over the use of the Apple name and logo to promote music products.

The Apple Corps label says Apple computers' online music store iTunes - which charges people to download music from the internet - is in breach of a 1991 agreement between the two companies.

eBay: privacy for sale

Ha'aretz reports: Big Brother is watching you - and documenting

"I don't know another Web site that has a privacy policy as flexible as eBay's," says Joseph Sullivan. A little bit later, Sullivan explains what he means by the term "flexible." Sullivan is director of the "law enforcement and compliance" department at eBay.com, the largest retailer in the world.

Sullivan was speaking to senior representatives of numerous law-enforcement agencies in the United States on the occasion of "Cyber Crime 2003," a conference that was held last week in Connecticut. His lecture was closed to reporters, and for good reason. Haaretz has obtained a recording of the lecture, in which Sullivan tells the audience that eBay is willing to hand over everything it knows about visitors to its Web site that might be of interest to an investigator. All they have to do is ask. "There's no need for a court order," Sullivan said, and related how the company has half a dozen investigators under contract, who scrutinize "suspicious users" and "suspicious behavior."

Newsweek on the RIAA lawsuits

Newsweek has three articles about the RIAA lawsuits:

Courthouse Rock

Last week the recording industry sued 261 unlucky music lovers, who, like millions more, had used Internet file-sharing services to download tunes. Will the radical strategy work? And is it fair?

Out of Tune

Picking on little kids and old ladies? What were the record companies thinking? They say it’s life or death.

Non-Americans Aren't a Target, Yet

Why is the global music industry going after Americans only? Of the 261 people sued last week by the music giants of the United States (AOL Time Warner), Germany (Bertelsmann), France (Vivendi), Britain (EMI) and Japan (Sony) for pirating music, none lives outside the United States. Turns out the rage for swapping songs through file-sharing services like Kazaa and Grokster is a largely American phenomenon.

Senator introduces DRM legislation

Senator Sam Brownback (R-KS) introduced the Consumers, Schools, and Libraries Digital Rights Management Act of 2003 (S.1621), "A bill to provide for consumer, educational institution, and library awareness about digital rights management technologies included in the digital media products they purchase, and for other purposes."

See Congressional Record pages S11571-S11576, for Brownback's introduction of the bill.

The Consumers, Schools, and Libraries Digital Rights Management Awareness Act of 2003 will preclude the FCC from mandating that consumer electronics, computer hardware, telecommunications networks, and any other technology that facilitates the use of digital media products, such as movies, music, or software, be built to respond to particular digital rights management technologies.

The bill:

  • Prohibits technology mandates requiring specific DRM systems

  • Requires that consumers, educational institutions and libraries are aware of the effects of DRM and that they are informed "about the ways in which access control technology and redistribution control technology may affect consumer, educational institution, and library use of digital media products based on their legal and customary uses of such product"

  • Requires that DRM products be provided with conspicuous notice and labeling which indicate that such products contain digital access restrictions.

  • Provides for consumer privacy protection from DMCA subpoena power

This bill will introduce a check on the DMCA subpoena power currently being used against ISPs by the RIAA and other copyright owners. While introducing the bill, Sen. Brownback said:

The Consumers, Schools, and Libraries Digital Rights Management Awareness Act of 2003 requires the owners of digital media products to file an actual case in a court of law in order to obtain the identifying information of an ISP subscriber. This will provide immediate privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.

   In addition, the bill requires the Federal Trade Commission to study alternative means to this subpoena process, so that we may empower our Nation's intellectual property owners to defend their rights by pursuing those who are stealing from them, but to do so in a safe, private, confidential manner where consumers are concerned, and without burdening the courts. Transitioning to an FTC process will ensure that there can be speedy verification, due process, safety, and maximum protection for the innocent, while preserving maximum civil enforcement against pirates.

Wired News reports: Senator Takes a Swing at RIAA

"We like lots of things here," said Wendy Seltzer, an attorney with the Electronic Frontier Foundation. "It reaffirms Internet users' rights to privacy and anonymity and it reaffirms that we preserve traditional fair-use rights as we move to the online environment."

"The bill helps to ensure that the public is informed about capabilities and restrictions of media they purchase," Seltzer said, adding that the bill is "asserting that public rights of access to media and rights to innovate with technology persist in the digital age."

Senator Brownback is also chairing this week's Senate Commerce, Science and Transportation Committee hearings on Digital Rights Management.

Volokh and Solum on IP Rights

Here's an interesting blog-dialogue (blogalogue?) between law professors Euguene Volokh and Lawrence Solum concerning the nature of the intellectual property rights and trying to find an appropriate analogy in the world of tangible property.

Volokh: The Conceptual Plausability of Intellectual Property

Solum: Volokh's defense of Intellectual Property

Volokh: Larry Solum on IP

Finally, the most thoughtful and well-researched (in other words, long) piece, Solum: Water Wells and MP3 Files: The Economics of Intellectual Property

Ranking Privacy at Work

Wired reports on the best and worst corporate attitudes towards privacy. Best includes IBM, HP, Ford, Baxter Healthcare and Sears. The worst are Eli Lilly, Wal-Mart, NYTimes Co., Burlington Northern Santa Fe and Hilton Hotels.

Verizon challenges RIAA subpoenas

The DC Circuit heard oral arguments from Verizon and the RIAA about the music industry association's use of DMCA subpoena powers.

In the NY Times, Amy Harmon reports: In Court, Verizon Challenges Music Industry's Subpoenas

As Congress intensifies its scrutiny of the special subpoenas that the recording industry is using to track down and sue people who share music over the Internet, a federal appeals court panel questioned today whether legislators had intended the subpoenas to be used in such a way.

For News.com, Declan McCullagh reports: Court scrutinizes P2P subpoena process

The three-judge panel gave little indication of whether it would continue to permit the Recording Industry Association of America (RIAA) to exploit the law's turbocharged subpoena procedures in its campaign against file-trading networks. But the judges did seem to lend more credence to Verizon Communications' arguments than did U.S. District Judge John Bates, who ruled in January that the RIAA's use of the law was valid.

Update: The AP reports: RIAA Tactics Under Scrutiny 

Judge John Roberts of the U.S. Court of Appeals for the District of Columbia challenged Recording Industry Association of America lawyer Donald Verrilli Jr. on whether computer users downloading music were any different from people who maintain libraries in their homes.

Senate overturns FCC ownership rules

The Washington Post reports: Senate Approves Measure to Undo FCC Rules

The Senate voted 55 to 40 today to wipe out all of the Federal Communication Commission's controversial new media rules, employing a little used legislative tool for overturning agency regulations.

Music Industry and P2P Day at the NYT

The NY Times examines various aspects of the P2P and music industry situation with 4 articles and a series of letters to the editor in today's paper:

Fighting Song Piracy the Willie Wonka Way

Some musicians try to halt online piracy by turning to lawyers. Others have turned to hackers. The rapper Obie Trice, a protégé of Eminem's, is turning to Willie Wonka. To entice fans to buy his new album "Cheers,'' scheduled for release Sept. 23, Mr. Trice and his label, Shady Records, are hiding "golden tickets'' inside 3 of the first 500,000 copies released.

Some Advise 'Everywhere Internet Audio'

nstead of clinging to late-20th-century distribution technologies, like the digital disk and the downloaded file, the music business should move into the 21st century with a revamped business model using innovative technology, several industry experts say. They want the music industry to do unto the file-swapping services what the services did unto the music companies - eclipse them with better technology and superior customer convenience.

Hollywood Faces Online Piracy, but It Looks Like an Inside Job

According to a new study published by AT&T Labs, the prime source of unauthorized copies of new movies on file-sharing networks appears to be movie industry insiders, not consumers. The study is "the first publicly available assessment of the source of leaks of popular movies," according to its authors.

Crackdown May Send Music Traders Into Software Underground

Hundreds of software developers are racing to create new systems, or modify existing ones, to let people continue to swap music — hidden from the prying eyes of the Recording Industry Association of America, or from any other investigators.

Letters to the Editor: Music Thieves? Or Music Revels?

Privacy and Human Rights

US-based Electronic Privacy Information Center (EPIC) and UK-based Privacy International released Privacy and Human Rights 2003: An International Survey of Privacy Laws and Developments.

Among the themes addressed in the comprehensive report:

  • Increased data sharing activities among, law enforcement, and national security and intelligence agencies

  • Function creep in action: several new laws, originally passed for anti-terrorism purposes, have extended their scope

  • The growing use of new technologies of surveillance

  • Successful opposition and advocacy by civil liberties groups and NGOs

  • Developments in genetic, medical privacy and workplace privacy

  • New data protection laws and data protection authorities

  • Action of international governmental organizations

Executive summary

The study goes in to detail about specific threats to privacy.

The study includes profiles of privacy laws in 56 countries, including the United States, Canada and the United Kingdom

No Truce in the Spam Wars

Wired News reports No Truce in the Spam Wars. In April, EmarketersAmerica.org filed a lawsuit against anti-spam activists. The complaint included counts of libel, invasion of privacy, business interference among other charges. After the defendants filed a motion for summary judgment, EmarketersAmerica.org filed a notice of voluntary dismissal.

rather than welcoming the seeming surrender by EMarketersAmerica.org (EMA), the defendants' attorney Pete Wellborn said the case should go on. According to Wellborn, he wants to send a message to junk e-mailers who launch legal attacks: Don't start what you can't finish.

"We still want the court to decide this suit on its merits," Wellborn said on Monday. "This is just a desperate attempt by the plaintiffs to escape a frivolous lawsuit without paying the defendants' legal fees, as justice demands," he said.

RIAA Strikes Back

On Monday, the RIAA filed lawsuits against 261 alleged file sharers in federal courts around the country. Here's a long, but ugly and incomplete, collection of articles and analysis:

AP: Record Industry Sues Music File Swappers

BBC: Music industry starts legal fight

IDG: RIAA sues 261 music uploaders

WSJ: Music Industry Presses 'Play'
On Plan to Save Its Business

TechTV: Song Swappers Sued

Scott Rosenberg: The music industry's pie rats strike back

NY Times: 261 Lawsuits Filed on Internet Music Sharing

LA Times:
Piracy Gets Mixed Reviews in Industry File sharing is seen as a burden and a boon

Legal Effort May Slow but Not Stop Music Revolution

Surprise Is a Common Reaction of Those Sued. Some say they didn't know sharing music via PC was illegal. Others claim tech ingorance.

Sympathy for the Sharer
Perhaps the RIAA attorneys should have gone through the subpoenas a bit more thoroughly to avoid suing sympathetic defendants:

Elderly man, schoolgirl, professor among file-swapping defendants

Music lawsuits snare 18 in Bay Area

20 Colorado Residents Sued Over Internet Music Downloads

Boston Globe: Group sues 261 over music-sharing 46 are accused in Boston area

News.com: RIAA settles with 12-year-old girl for "only" $2,000.

Wired News: Schoolgirl Settles With RIAA

Good Morning Silicon Valley: Music industry to recoup alleged file-sharing losses one 12-year-old at a time

Amnesty
Clean Slate program description and affadavit.

Slate: An Offer You Can Refuse. The RIAA's amnesty deal may not keep you from being sued.

Salon: We don't need your stinkin' amnesty!

Senator Norm Coleman responds to amnesty proposal by recording industry

As I have stated before, the recording industry has legitimate copyright interests to protect. The process they use to protect those interests remains a concern of mine. I will be announcing hearings soon to closely scrutinize the tactics, technology and laws used not only in the 262 lawsuits filed today, but also those that were used to target the more than 1,600 people subpoenaed to date by the RIAA.

A lawsuit was filed against the RIAA on behalf of the general public of the state of California which seeks injunctive relief to "put an end to [RIAA's] unlawful, unfair and deceptive 'Amnesty' or 'Clean Slate Program'-- which consists of deceptive and misleading representations by the RIAA."

USA Today: Fight over free music on Web coming to Congres

(via many sources, but beSpacific and FurdLog were particularly useful)

A Guide to the Patriot Act

In Slate, Dahlia Lithwick and Julia Turner have written a handy guide to the USA Patriot Act.

Although it passed in Congress almost without dissent in the aftermath of Sept. 11, it's suddenly being revisited, and this time around some of the folks holding opinions have actually read the thing. Among its detractors are 152 communities, including several major cities and three states, that have now passed resolutions denouncing the Patriot Act as an assault on civil liberties. More than one member of Congress has introduced legislation taking the teeth out of its most invasive provisions.

Part 1: Should you be scared of the Patriot Act?
Part 2: FISA: It's everywhere you don't want to be
Part 3: Can I borrow a pen register?
Part 4:

Impractical

Apple finally reveals that a sale of iTunes Music Service songs from one user to another is legal, though impractical.

"Apple's position is that it is impractical, though perhaps within someone's rights, to sell music purchased online," Peter Lowe, Apple's director of marketing for applications and services, told CNET News.com in an interview.

Apple appears to have no intention of assisting users in transferring ownership of files from one user to another.

"They would have to somehow give their account info to the person they were selling to in order to get their Mac authorized to play the music being sold," he said...

"Economically, I don't believe there is going to be much of a market for resold music...We just don't see it as that much of an issue"

So, users would have to sell their entire iTunes user account, not merely sell some single songs. Or, users would have to find a way to change the ownership of individual files. That action would circumvent the DRM and violate the DMCA.

There won't be much of a market for resold digital music if it there is no way to resell part of the music purchased digitally. Although legal in theory, Apple appears to make it impractical to resell legally purchased music. A digital music file then retains no value when purchased. If one buys some scarce item, but is unable to transfer ownership in that item, does one really own it?

This follows up on my previous post, Dollars, Cents and Downloads.

Update: Hotelling sold the song by transferring the entire account. It's not easy.

What is Noncommercial Use?

One thread of discussion surrounding the copyright law is the idea of creating a compulsory license for online/p2p distribution, similar to the existing compulsories for broadcasting. Before determining how to collect license fees and distribute, Lawmeme's Ernest Miller notes the need to determine what constitutes non-commercial use.

Virtually all compulsory license schemes restrict themselves to noncommercial use. They are put forward as a solution to the P2P issue, of file sharing between consumers. No serious compulsory licensing scheme that I am aware of advocates that commercial vendors should be allowed free rein under the compulsory license. Unfortunately, I think that the distinction between commercial and noncommercial use in the P2P realm is not so easy to make. After all, previous compulsory licenses were essentially in the commercial realm. The commercial realm is, in many ways, much easier to regulate than the public or P2P realms (isn't that why people advocate compulsory licensing schemes in the first place?).

Reuters: Databases--the next copyright battle?

Lawmakers in the U.S. House of Representatives are circulating a proposed bill that would prevent wholesale copying of school guides, news archives and other databases that do not enjoy copyright protection.

The proposed bill would provide a legal umbrella for publishers of factual information such as courtroom decisions and professional directories. The measures would be similar to the copyright laws that protect music, novels and other creative works.

File-sharer amnesty for sale

Record Labels to Offer Amnesty to File Sharers, With Conditions

To be eligible, sources said, people would have to cleanse their computers of all the tunes they downloaded without permission and destroy any CDs they burned with those songs. They'd also have to submit a notarized form to the RIAA, possibly with some official identification, pledging not to run afoul of copyright laws again.

This raises many questions. What type of verification will the program impose on participants? How intrusive will the program be? What privacy rights will participants lose to remain in compliance? What penalties will the program offer? What will the the association consider "running afoul of copyright again"?

AP: Music Industry to Unveil Amnesty Offer

Dollars, Cents and Downloads

Can you resell a downloaded file purchased from iTunes? George Hotelling hopes to find out if the right of first sale still exists, by auctioning a single song, "Double Dutch Bus," on eBay. The auction violates eBay's terms of use. I also think it pointless to (attempt to) resell something that can be purchased new for $0.99 when eBay charges at least $0.32 for the transaction. Not only is eBay an expensive market to resell an item valued at a dollar or less, but its Terms of Service explicitly forbid auctioning downloadable items on the service.

The question raised, however, is very interesting. Does the doctrine of first sale apply to digital files? In a Duke Law & Technology Review iBrief, The First Sale Doctrine and Digital Phonoreecords (2001 Duke L. & Tech. Rev. 0018), Bob Hyde argues that the doctrine of first sale should not apply to digital media files. Unlike with traditional analog and digital recording media (records, tapes, CDs), the downloaded digital file is ephemeral. The mere action of electronically transferring the file from one owner to another creates a copy. Unlike with a record or CD, no physical media is attached to ownership of a digital file. The iTunes license recognizes this and allows a single user to keep as many copies of the file as the user wants, but restricts playing the file on 3 authorized computers and any number of iPods.

A user can not copy iTunes files to an unlimited number of computers and still expect those files to play. The key purchase with iTunes is not the file itself, but a license to use the file.

The iTunes Terms of Service and Terms of Sale are essentially mute on the topic of first sale. The most relevant clause in the Terms of sale may be: "The delivery of a Product does not transfer to you any commercial or promotional use rights in the Product." Is selling my own copy of something that I own a commercial use? Assuming that a personal sale is a commercial use, then resale is obviously prohibited. However, when contemplated in terms of "commercial or promotional," it sounds more like the warning which opens most DVDs and video tapes: "for personal, non-commercial use." While I can not charge admission to a public showing of The Simpsons Season 3, I can sell the DVD to another individual.

The first clause in the Terms of Service reads:

1. Definition of the iTunes Music Store Service. Apple is the provider of the iTunes Music Store (the “Service”) that permits you to purchase downloads of digital content—such as sound recordings—under certain terms and conditions as set forth in this Agreement.
Under one reading of this clause, users are purchasing the right to one download from Apple, not purchasing one file. This is like buying a NY subway token (or a single-ride Metrocard now), which grants the right to enter the subway system once. After entering the subway system, I can choose to exit without getting on a train and am not entitled to a refund. But, when unveiling the iTunes music store, Steve Jobs said when you download a song from iTunes, "you own it." Music files are treated like products in a store, and it certainly feels to the users like we have purchased something. That song is occupying space on an iTunes user's computer. The subway token analogy is closer to eMusic's approach, where $9.99 a month grants access to as much or as little unrestricted music as the user wants.

The m4p files from iTunes act more like scarce objects than the unrestricted mp3 files from eMusic. Only one person (and the other people that person would trust with his credit card) can access the protected AAC files. I could distribute an unlimited number of copies of The Bad Plus's "What Love is This" as I want after I've downloaded it. But only up to three of those copies are in any way useful and only to someone with access to the license to use the song. If I decided that I didn't want the Soulive CD I bought, I could sell it and no longer have access to it. If I transfered my license to listen to the Soulive AAC files to someone else, I would no longer have access to it. In this way, protected AAC albums resemble scarce CDs more than they resemble unlimitedly re-distributable MP3 files.

Although a seller could theoretically sell his entire iTunes account to a buyer, that would require the seller not want to keep any previously purchased music. That also assumes that the iTunes account can be severed from the other related services that a customer might use from Apple, such as .mac email or stored information at the Apple store. It also assumes that the purchaser not have his own iTunes account, since it would require the purchaser to have change identity within the iTunes application to play certain songs. It seems much easier to allow users to transfer licenses.

If it is not possible to transfer ownership of a license to an iTunes m4p album from one person to another, buying a $9.99 download from Apple makes far less economic sense than buying a $12.99 album from Tower. Once downloaded, the iTunes album retains absolutely no monetary value, while the CD can still be sold or traded. Furthermore, one could never use iTunes to buy a gift. If I wanted to buy an album to give to someone, I would have to have access to their account. I might as well just buy some gift wrap for that CD.

If licenses to access DRM'ed files are not transferable, then buying protected downloads makes no sense for consumers if unprotected CD's are still available. Even at a 50% price premium, the CD is a much better value. Someone who would buy hundreds of dollars of music through iTunes would have no assets, while someone who bought the same music on CD would still have some value. If Apple wants its digital distribution service to be viable, the licenses to use DRM-protected digital downloads should be transferrable. If not, consumers have no economic reason to prefer downloads.

Elsewhere:
News.com: iTunes auction treads murky legal ground

Slashdot: Testing the Right to Resell Downloaded Music

Tech Law Advisor: Does the Right of First Sale Still Exist?

Ernie the Attorney: Testing the legality of Apple's iTunes Music Store using eBay? Bad idea.

News.com: eBay mutes iTunes song auction

At Lawmeme, James Grimmelman discusses how Abusive E-Mail Subpoenas Are Actionable Under Federal Law

There's legal hardball, and then there's legal lunacy, and Alvin Farey-Jones just got an expensive lesson in the difference. In the course of a lawsuit against a company named ICA, he sent a subpoena to ICA's ISP, asking for all of ICA's email. The ISP complied.

The Ninth Circuit has just ruled that Farey-Jones's actions could constitute a violation of both the Computer Fraud and Abuse Act, which prohibitions "unauthorized access" to computer systems, and the Stored Communications Act, which does the same for electronic communications.

Colleges plan for coping with P2P on campus

The AP reports Colleges Move to Stop File - Swapping

Students arriving for fall classes at colleges across the country are facing new restrictions and stern warnings to discourage the swapping of pirated music and movies over high-speed campus Internet connections.

Some schools are even using software to choke the amount of data that can flow in or out of a computer when students use Kazaa and other file-sharing programs.

And in a new approach disclosed Tuesday, at least a dozen universities are exploring ways to offer students a fee-based music service whose fees could be bundled with room and board costs.

Joint Higher Education and Entertainment Group Issues Review Of Year-Long Efforts To Curb Illegal File Sharing On College Campuses

A joint committee of leaders from the higher education and entertainment communities, formed to develop collaborative solutions to address illegal file sharing on college campuses, today released a review of its efforts and the progress accomplished during the past year, as well as projects still on the agenda.

Amazon attacks spam spoofers

On Monday, Amazon.com filed 11 lawsuits in 6 states and in Ontario against spammers who send forged email which claims to originate from Amazon.com.

Today, NY Attorney General announced an agreement with one of these companies (Brooklyn-based Cyebye.com):

"Consumers are continuing to be overwhelmed with fraudulent or unsolicited commercial email," Spitzer said. "My office is committed to protecting consumers and cleaning up the email marketing industry. This agreement sends the message that fraudulent email will not be tolerated."

The settlement agreement prohibits Cyebye.com from using third parties' names to market, unless the company obtains authority to do so. The company is also required to keep records of all commercial emails during the next two years and provide the Attorney General's office with regular updates of its compliance with the settlement. Cyebye.com must pay $10,000 in penalties to the State of New York.

The complaints all allege the following claims:

  • Trademark Infringement Under the Lanham Act (15 USC §1114)
  • False designation of origin under the Lanham Act (15 USC §1125(a))
  • Cyberpiracy Prevention under the Lanham Act (15 USC §1125(d))
  • Unfair Competition under the Lanham Act (15 USC §1125(a))
  • Trespass to Chattels (The spammers know that a high number of their messages would bounce, so by forging the domain name burdened Amazon's servers with the innumerable bounced messages rather than their own servers.)
  • Unfair Competition (state law)
along with these additional claims under the various states' laws:
  • False Advertising (CA)
  • Consumer Fraud (AZ)
  • Unfair Business Practice (NY)
  • Unfair Business Practice (WA)
  • Fraudulent Representations (WI)
  • Common Law Trademark Infringement and Unfair Competition (WI)
In Ontario, Amazon claims:
  • Trade-mark Infringement, Passing-off and Unfair Commpetition
  • Trespass to Property
  • Interference with Economic Relations
One of the Florida complaints includes Magistrate Judge Barry Poretz's report and recommendation in America Online, Inc. v. Web Communications et. al., a similar case of spoofed spam, which found for AOL and recommended granting permanent injunctive relief, damages under the Lanham Act, punitive damages for the common law claims and attorney's fees.

AP: Amazon.com Sues E-Mail Marketers

NY Times: Amazon Files Suits Against Online Spoofers

News.com: Amazon goes after spammers

Reuters: Amazon sues online marketers for forging e-mail

BBC News: Amazon sues over spoof e-mailers

The Globe and Mail: Amazon sues Toronto company over name use

eWeek: Amazon Ratchets Up Fight Against Spammers

InternetNews.com: Amazon Goes After the Flim-Flam Man

Miami Herald: Amazon.com sues over sexy e-mails and Amazon.com sues Palm Harbor man in spamming case

Financial Times: Amazon files suits against online spoofers

The Register: Amazon.com cracks down on spoofers

DM News: E-Mail Marketer Agrees To Change Header Practices; Amazon Files Lawsuits

I am very interested to see what happens in these cases, since I also was a victim of a similar spam spoofing attack. Unlike Amazon, however, my domain name is not a trademark, so any decisions in this case might not have precedental value if I wanted to sue. That would require, of course, that I find the company responsible.

(Updated Aug. 28 with links to more news articles)