October 2003 Archives

Wine E-Commerce and Interstate Commerce

House Spam Hearings

The FTC Howard Beales, Director of the FTC's Bureau of Consumer Protection, testified:

"Any solution to the problems caused by spam should contain the following elements: enhanced enforcement tools to combat fraud and deception; support for the development and deployment of technological tools to fight spam; enhanced business and consumer education; and the study of business methods to reduce the volume of spam."

FTC News release
FTC Testimony

Internetnews.com: FTC: Help Us Find and Prosecute Spammers

Comparing the legit download services

RIAA sues more sharers

AP: Music Group Files 80 Downloading Lawsuits

The recording industry filed 80 more federal lawsuits around the country Thursday against computer users it said were illegally sharing music files across the Internet.

Those 80 people were among 204 who had been threatened with lawsuits earlier this month by the Washington-based Recording Industry Association of America (news - web sites) unless they contacted the trade association to discuss a financial settlement.

The RIAA said the remaining 124 people had approached music industry lawyers about settling the claims.

Wired News: RIAA Sues 80 More Swappers: "The RIAA also revealed that 1,000 file sharers have signed "Clean Slate" affidavits."

What's a music war without music war profiteers? LexisNexis is offering Recording Industry Association of America Case Activity for only $45 per complaint.

SCO claims GPL is unconstitutional

In its copyright infringement lawsuit against IBM, the SCO Group is asserting that the GPL (General Public License), the license which forms the basis for open source software such as Linux, is unenforceable. News.com: SCO attacks open-source foundation

"The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws," SCO Group said in an answer filed late Friday to an IBM court filing. In addition, SCO asserted that the GPL is unenforceable.

FTC suggests improving patent law policy

The Federal Trade Commission released a report on How to Promote Innovation: The Proper Balance of Competition and Patent Law and Policy. Among the ten FTC recommendations:

  • Create a new administrative procedure that will make it easier for firms to challenge a patent’s validity at the U.S. Patent and Trademark Office (PTO), without having to raise an expensive and time-consuming federal court challenge
  • Allow courts to find patents invalid based on the preponderance of the evidence, without having to find that clear and convincing evidence compels that result
  • Limit the award of treble damages for willful patent infringement.

Hastert wants to can spam

internetnews.com: Speaker May Force House Anti-Spam Vote

U.S. Speaker of the House Dennis Hastert is considering bypassing House members bickering over competing anti-spam bills by introducing for a full floor vote the Can Spam Act passed by the Senate last week.
As I discussed last week, enacting this bill will have little effect on spam, since the CAN-SPAM Act can't stop spam.

Star-Ledger on Compulsory Licensing

Newark Star-Ledger: Prof to music labels: Lay off 'cyber-pirate' suits and try a tax

The music industry's war on file-swappers is a messy affair, with no easy answers. But a guy at Harvard has a modest proposal that is sure to stir some passions.

Are you ready for a music tax?

William Fisher's proposal, featured in an upcoming book, makes at least as much sense as music labels suing the pants off their customers/pirates.

Online music openings

NY Times: Online Music Business, Neither Quick Nor Sure

In a striking lack of originality, every new service above is in some way a designer imposter of iTunes, which sells songs for 99 cents each and albums for $9.99.

SJ Mercury News: A former outlaw, Napster goes legit

The Napster brand and kitty logo now adorn an online music service the record industry first envisioned as the anti-Napster.

I'm preparing a big post comparing the features and usage restrictions of the various legit download services for later today. Stay tuned.

Diebold, Diebolder, Dieboldest

Wired News: E-Vote Protest Gains Momentum

"My concern and I think the concern of the students is to focus attention on electoral fraud. The copyright stuff is a sideshow," he said. "If what the memos suggest is true, this makes hanging chads look like state-of-the-art (election technology)."

Ernest Miller is all over the Diebold/Swarthmore/Why War story.

The US Court of Appeals for the Ninth Circuit ruled today in Weber v. Jones that California's decision to certify the use of touchscreen electronic voting machines which lack a paper audit trail does not violate the US Constitutional, even though such machines produce unverifiable results.

Election Law Blog: Ninth Circuit Holds that Use of Touchscreen Voting System without paper trail does not violate United States Constitution.

TVs to tune digitally

The US Court of Appeals for the DC Circuit upheld an FCC rule, over a challenge by the Consumer Electronics Association, and held that the FCC has the authority to require that all television sets (and certain other devices, like VCR's) include a digital tuner and the capability to decode digital television broadcasts by the end of 2006.

AP: Court Upholds FCC Digital TV Ruling

Anti-circumvention exception

The Librarian of Congress determined that the following four classes of works are exempt from the DMCA prohibition against circumvention of technological measures that control access to copyrighted works:

(1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.

(2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.

(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

(4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook's read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

This rule will be in effect from October 28, 2003 until October 27, 2006.

Also: Statement of the Librarian of Congress on the Anticircumvention Rulemaking, Determination of the Librarian of Congress and Text of the Regulation, The Recommendation of the Register of Copyrights

Coverage and Analysis:
Ernest Miller has the motherlode of links.

Edward Felten: "It is abundantly clear by now that the DMCA has had a chilling effect on legitimate research related to access control technologies."

Derek Slater: "Not a whole lot of change."

bIPlog: Copyright Office Releases DMCA Exemption Hearing Ruling

EFF: Librarian of Congress Fails Public Interest in Copyright Regulation. "The Librarian of Congress today continued to disregard consumers' rights and denied exemptions to copyright law related to consumers' use of CDs and DVDs that they legally purchase."

Seth Finkelstein: DMCA censorware exemption win! How sweet it is!

IP Justice: US Copyright Office DMCA Ruling Issued Consumers Still Unable to Make Lawful Use of Digital Media.

Wired News: New Ways to Skirt DMCA … Legally!

Spam Multiplies

Politech: An insider's analysis of the Senate's anti-spam bill

NY Times: Big Companies Add to Spam

But the torrent of spam that is flowing into people's electronic mailboxes comes not only from the sewers but also from the office towers of the biggest and most well-known corporations.
. The CAN-SPAM Act which passed the Senate last week will not regulate or abate this "white collar" spam.

Wired News: Spam Pitches Are Mutating Faster

Black Box Voting Blues

Newsweek technology columnist Stephen Levy discusses the problems with Diebold and electronic voting: Black Box Voting Blues

The best minds in the computer-security world contend that the voting terminals can’t be trusted. Listen, for example, to Avi Rubin, a computer-security expert and professor at Johns Hopkins University who was slipped a copy of Diebold’s source code earlier this year. After he and his students examined it, he concluded that the protections against fraud and tampering were strictly amateur hour. “Anyone in my basic security classes would have done better,” he says. The cryptography was weak and poorly implemented, and the smart-card system that supposedly increased security actually created new vulnerabilities. Rubin’s paper concluded that the Diebold system was “far below even the most minimal security standards.” Naturally, Diebold disagrees with Rubin. “We’re very confident of accuracy and security in our system,” says director of Diebold Election Systems Mark Radke.

In the link above, there is a link to a Newsweek radio story which interviews Levy and Congressman Rush Holt (D-NJ) who introduced Voter Confidence and Increased Accessibility Act of 2003 (HR 2239). Holt says: I'm sorry to say that some people see this as a partisan matter. There is no partisan intentions about this [legislation]. "It is very urgent [that the voting process is modernized]. [Voting] is the central act of a democracy... The level of suspicion, skepticism, distrust is really high... that has to be addressed."

CDT "Setting the Record Straight"

The Center for Democracy and Technology has posted Setting the Record Straight: An Analysis of the Justice Department's PATRIOT Act Website in order to debunk some of the claims that the Justice Department lifeandliberty.gov site makes about the innocuousness of the PATRIOT Act.

BC Student Settles with RIAA

Boston Globe: Student at BC settles with music industry

The student reached an out-of-court settlement with a recording industry trade group and dropped her motion to quash a subpoena that had sought her name and address. She identified herself to the recording industry, but court papers still refer to her as Jane Doe.

The American Civil Liberties Union and a private lawyer represented the woman without charge, arguing that the subpoena violated her right to free speech and due process, after Boston College said it planned to reveal her identity.

But the student grew weary of the lawsuit and ended it by agreeing to pay a few thousand dollars without admitting or denying wrongdoing, said her lawyer, David Plotkin, an associate with the Boston firm of Prince, Lobel, Glovsky & Tye. He would not reveal the precise amount of the settlement, but said it was generally in line with previous file-sharing settlements of $5,000 or less.

Waving the Broadcast Flag

The FCC is expected to rule soon on the "Broadcast Flag" proposal, which would require all digital television-compatible devices (including televisions, tuners and multimedia computers) to include technology that would restrict uses of digital programming received over the air.

NY Times: Critics Press Case on TV Privacy Rules

Federal regulators plan as soon as this week to adopt rules meant to keep people from copying digital broadcasts of television shows and movies and distributing them on the Internet, government officials and industry lobbyists say.

Salon: Hollywood to the computer industry: We don't need no stinking Napsters!

Fearful of piracy, the studios want the federal government to legislate how computers are made. Critics say such interference signals the end of the line for digital innovation.

Wired News: A Case of Piracy Overkill? 

Critics of proposed Federal Communications Commission rules designed to prevent consumers from redistributing copies of digital television shows on the Internet say the move won't stop piracy but will curtail technological innovation and the "fair use" of content.

Reuters: Feds to Fight Digital TV Piracy 

Authors Guild Fears Amazon

Last week, Amazon.com . The Guild worries that: "A student could easily grab the relevant chapter or two out of a book without paying for it." Perhaps Barnes and Noble should not allow its patrons to sit around in stores and read entire relevant chapters. University libraries should not have reference books available on reserve, so that students can easily read the relevant chapter or two out of a book. NY Times: Amazon Offer Worries Authors

Ernest Miller wonders how the precedent of NY Times v. Tasini (publishers were not allowed to include in news databases articles written by freelancers without getting specific permission) would apply to existing publishing contracts.

Canadian Copyright, Eh?

Declan McCullagh speaks with University of Ottawa Law professor Michael Geist about Canadian copyright law applied to technology: Cyberpiracy north of the border.

Q: Can Canadians legally download copyrighted music from peer-to-peer networks? A: The short answer is: Nobody knows for sure. But the issue is far murkier than in other jurisdictions like the United States. The key provision in Canada's copyright legislation is a private copyright exemption that lets Canadians make private copies for noncommercial use. The way we justify the exemption is by way of a levy that applies to blank media such as blank CDs and blank audio cassettes.

California Wins Against Spammer

Attorney General Lockyer Wins First-Ever State Lawsuit Against Spammer. The state of California won a $2 million judgment against PW Marketing and its owners Paul Willis and Claudia Griffin. In addition to the monetary judgment, the state won injunctive relief, which it intends to use as a model for future anti-spam actions. The defendants are prohibited from:

  • Sending unsolicited commercial emails.

  • Disguising their identity by sending email that appears to originate from an email address that is neither the actual address nor the address where replies can be received.

  • Sending emails that contain false or misleading information about the country or Internet mail server from where the advertisement is sent.

  • Accessing and using the computers, computer systems or computer networks of other persons or businesses without their permission or in violation of their terms of service.

  • Using false or misleading information to register for an email address, Internet service or Internet domain name.

  • Using, transferring or otherwise making available to other persons email address lists compiled for the purpose of sending spam.

  • For 10 years, owning, managing or holding any economic interest in any company that advertises over the Internet, without first providing written notice to the Attorney General.

This judgment was based on California's existing anti-spam law, which will be strengthened on Jan. 1, 2004 from opt-out to opt-in and allow a private right of action for individuals.

CAN-SPAM Act Can't Stop Spam

The U.S. Senate realized that spam is not just a mere inconvenience, but a burden on interstate commerce and passed (97-0) S. 897, a bill to regulate spam . Unfortunately, if enacted into law, this bill would not only do little to effectively curtail spam, but could hamper state anti-spam actions.

My first problem with this bill is not unique to this bill, but is one shared by most modern legislation. This bill is titled the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003', or the 'CAN-SPAM Act of 2003.'" (§1). Please, make the unabated spread of awkward cutesy acronyms stop already.

The other shortcomings of this act are significant and substantive. The key problem is that in §2(b)(3), the Senate determines that it is sufficient protection only that consumers are given the ability to opt-out.:"recipients of unsolicited commercial electronic mail have a right to decline to receive additional unsolicited commercial electronic mail from the same source." In other words, companies are free to send unsolicited email, so long as they provide a functional, clear and conspicuous unsubscribe option. The burden for avoiding unwanted commercial email falls on the individual to unsubscribe, rather than providing effective constraints to prevent marketers from sending unwanted email. Users have to affirmatively execute their right to decline further unsolicited commercial email with each entity who sends spam.

Unsolicited commercial electronic mail and affirmative consent are defined too imprecisely to effectively regulate spam. In section §3(1), the bill defines affirmative consent:

(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative; and

(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient's electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.

Under this definition, it seems that a website or email list builder is not prevented from selling their lists of addresses, so long as the recipients were given "clear and conspicuous notice" that their addresses would be released to a third party. Although §9 of the bill recommends creating a "do-not-spam" list, its effectiveness will be undermined because the bill allows marketers to share email lists to other parties, with not constraints other than the requirement to provide "clear and conspicuous notice." Then, the affected individual email users will have to opt-out of email from every sender.

In §3(2), the bill defines "Commercial electronic mail message" as: "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)." However "inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service."

Under this definition, a message whose primary purpose is to remind people that Daylight Savings Time ends this weekend can be sponsored by Besco clock and watch company (a merciless spammer) and include a link its website. I'm sure that the penis enlargement pill marketing industry could easily find a message whose primary purpose is non-commercial. This would exempt this sort of message, since it is "non-commercial," from the regulations.

This bill does not provude a private right of action. Instead, the FTC (§7), State Attorney Generals (§7(e)) and ISPs (§7(f)) are able to act against spammers.

This bill preempts state anti-spam statutes, except for those that prohibit falsity or deception. So, stronger specific anti-spam laws, like California's will be preempted by this weaker federal legislation. Regulation of spam under non-specific consumer protection laws, like New York;s, can continue.

Washington Post: Senate Votes 97-0 To Restrict E-Mail Ads

Internet.com: Senate Anti-Spam Bill Ups Ante for House Action

In related news, the Pew Internet & American Life Project released a new report: Spam: How it is hurting email and degrading life on the Internet

Wired News: Survey Confirms It: Spam Sucks

NY Times: A Change of Habits to Elude Spam's Pall

Follow the Money: License Music

Music Dish: Money In Music: The Cold-Cash Facts About Music Licensing

Music can be used in four broad categories under copyright law: Adaptation, Recording, Reproduction, and Public Performance. Depending on where and how someone is going to use a song, there are mechanical rights and synchronization rights that have to be negotiated, and the various parties involved may include the songwriter, publisher, and record company, usually holder of the master rights.

Students Stand Up to Diebold

Targeting Diebold with Electronic Civil Disobedience

Wired News: Students Fight E-Vote Firm

Diebold has been sending out cease-and-desist letters to force websites and ISPs to take down the memos [describing the company's awareness of the security flaws in its e-voting machines], which the company says were stolen from its server in violation of copyright law. It has been using the Digital Millennium Copyright Act, or DMCA, to force ISPs to take down sites hosting the memos or sites containing links to the memos.

Ernest Miller: Swarthmore Actively Opposes E-Civil Disobedience Campaign

Radio stations who stream over the Internet a simulcast of their broadcast signals must pay royalties for the Internet streaming, although they are exempt from paying those royalties for the terrestrial broadcasts. On Friday, the 3rd Circuit Court of Appeals decided Bonneville International Corp. v. Peters and denied to overturn the  Radio Stations Must Pay Royalties for Webcasting

Instead of seeing copyright holders receive a new stream of royalties, expect radio stations to merely stop streaming their live broadcasts over the Internet.

TV on DVD May Sound Different

Reuters: TV on DVD: What's the Difference? Some studios are too cheap to pay to relicense music for the DVD release.

Spam Laws

Spam Laws has information about pending and enacted Spam legislation in the US, EU and other countries, as well as selected judicial opinions. This is a great resource.

Metropolitan News-Enterprise reports on the California Court of Appeal for the First Appellate District ruling inBarrett v. Rosenthal: Web Poster Who Republishes Defamation May Be Liable:

A recent federal law that immunizes users of interactive computer services from liability for content authored by others does not abrogate traditional liability for republication of material that one knows or reasonably should know to be false and defamatory, the First District Court of Appeal has ruled.

(via How Appealing)

Identity Theft Made Easy

Sensitive personal financial information belonging to Massachusetts Governor Mitt Romney recently ended up on sale online for $125, exposing the inner workings of a credit reporting network that operates largely on an honor system and is rarely policed. As part of a story on the vulnerability of personal financial data, The Boston Globe purchased Romney's TransUnion credit report -- listing his credit card accounts, credit card numbers, credit limits, and payment history -- from a Colorado company calling itself Goldshield Inc.

RIAA Warns, then Sues

NY Times: Record Industry Warns 204 Before Suing on Swapping

A sample of the letter provided by the industry association tells recipients that record companies "intend to file a lawsuit against you shortly for copyright infringement" because "we have gathered substantial evidence" of illegal activity. The letter encourage the recipient to "preserve evidence that relates to the claims against you," including all music downloads. But it goes on to warn recipients that "the evidence necessary for the record companies to prevail in this action has already been secured."

Reuters: RIAA Croons a New Warning Tune

Sen. Norm Coleman (R-MN) discusses The RIAA and the Music Piracy Debate with Washington Post readers.

Senators Want JetBlue Probe

Wired News: Senators Want JetBlue Probe after JetBlue violated its own privacy policy and released passenger data, without notifying those passengers, to Pentagon contractor Torch Concepts for a security study.

Governmental Affairs Committee chairwoman Susan Collins (R-Maine), ranking member Joe Lieberman (D-Connecticut) and Armed Services Committee ranking member Carl Levin (D-Michigan) wrote Defense Secretary Donald Rumsfeld, asking whether the Pentagon complied with the Privacy Act, which requires that government agencies and their contractors notify the public when a system of records is created.

Governmental Affairs Committee chairwoman Susan Collins (R-Maine), ranking member Joe Lieberman (D-Connecticut) and Armed Services Committee ranking member Carl Levin (D-Michigan) wrote Defense Secretary Donald Rumsfeld, asking whether the Pentagon complied with the Privacy Act, which requires that government agencies and their contractors notify the public when a system of records is created.

Wired News: Fighting to Preserve Old Programs 

[Brewster] Kahle and his nonprofit Internet Archive have petitioned the U.S. Copyright Office about the Digital Millennium Copyright Act, or DMCA, which governs the circumvention of anti-piracy measures. Kahle's organization is seeking exemptions from DMCA provisions that prohibit the archiving of software titles. If the Copyright Office says no, Kahle fears millions of programs eventually will be lost forever.

The Internet Archive filed a DMCA

Confusing Search

News.com: Are search engines confusing surfers?

Last year, the FTC notified Web operators--including Yahoo-owned AltaVista and America Online--that they must clearly mark advertisements that appear within their search results. Though some reform trickled through the industry, questions still linger about how well companies label the commercial listings that appear when Web surfers delve into their indices.
Do commercial search engines have a public responsibility to separate sponsored advertising links from other search results? Should the FTC regulate search engines?

Social file sharing

Clay Shirky: File-sharing Goes Social. Shirky expects file sharing to become more like traditional sharing of physical media, between smaller groups of people in trust networks.

Want Privacy? Go to the EU

The Wall Street Journal reports on how EU privacy laws are more protective than in other countries: Europe's New High-Tech Role: Playing Privacy Cop to World

Fundamental philosophical differences separate the U.S. and European approaches. Europe has defined privacy as a human right, while in the U.S. data-protection laws can quickly run afoul of free-speech protections enshrined in the Constitution. The dichotomy is most apparent in direct marketing. Europe's privacy laws essentially force businesses to get permission before they make telemarketing calls to their customers. In the U.S., a federal court in Denver recently blocked a national do-not-call registry from taking full effect this month, saying it violates a company's First Amendment rights. An appeals court put that ruling on temporary hold Tuesday, letting the registry proceed until the court makes a final ruling

The Guardian: Murdoch chief threatens to sue BBC

"We don't believe the BBC has the right to provide an unencrypted signal with our programming," said Peter Chernin, who is chief operating officer of News Corp.

"We are not happy and we are also sort of shocked. The BBC is not some renegade company. It's a public trust in a society that does have copyright laws and one top of that it is one of the great content producers. We think that what they are doing is wrong," he added.

With an encrypted satellite signal, where only subscribers in the UK who subscribe to receive the signal could view the BBC channels, because the BBC would only sell subscriptions to satellite customers in the UK. When the signal is unencrypted, any satellite television viewer in Europe could pick up the BBC feed, subscriber or not. Shifting to unencrypted distribution would save the BBC some of the £85m it pays to BskyB, which is partially owned by News Corp., for encrypted satellite distribution.

Cameraphones vs. Privacy

In the NY Times, Amy Harmon writes: Smile, You're on Candid Cellphone Camera

"The technology is really testing the traditional understanding of the zone of privacy," said David Sobel, a lawyer with the Electronic Privacy Information Center. "At some point, courts might be inclined to say there are limits to the concept of waiving your privacy rights when you're in public."

Patriot Act Slows E-Commerce?

Some online retailers fear that provisions of the USA Patriot Act will make consumers less likely to shop online and, as a result, are changing their privacy policies in order to retain less customer data. NY Times: Patriot Act Curbing Data Retention

At the core of his concerns is Section 215 of the Patriot Act. Under that section, businesses, organizations or citizens can be compelled by the Federal Bureau of Investigation, if it has a federal judge's order, to hand over any records the F.B.I. deems relevant to an investigation of terrorism or espionage, as long as the investigation is not based solely on actions already protected by the Constitution's free speech provisions.

Barely two days after Princeton grad student J. Alex Haldermann released a report on SunnComm's CD copy-protection scheme, SunnComm is threatening to sue under the DMCA. SunnComm CEO Says Princeton Report Critical of its MediaMax CD Copy Management Technology Contains Erroneous Assumptions and Conclusions

SunnComm believes that Halderman has violated the Digital Millennium Copyright Act (DMCA) by disclosing unpublished MediaMax management files placed on a user's computer after user approval is granted. Once the file is found and deleted according to the instructions given in the Princeton grad student's report, the MediaMax copy management system can be bypassed resulting in the copyright protected music being converted or misappropriated for potentially unauthorized and/or illegal use. SunnComm intends to refer this possible felony to authorities having jurisdiction over these matters because: 1. The author admits that he disabled the driver in order to make an unprotected copy of the disc's contents, and 2. SunnComm believes that the author's report was "disseminated in a manner which facilitates infringement" in violation of the DMCA or other applicable law.

EFF senior staff attorney Fred von Lohmann reacts: "What more proof do you need that the DMCA is chilling legitimate research? In America today, scientists shouldn't have to fear legal action for publishing the truth. Based on the apparent weakness of its technology, perhaps SunnComm should be hiring more Princeton computer scientists, instead of threatening to sue them."

More at Copyfight

NY Times: Record Companies Sue New Jersey Flea Market

a group of record companies is suing the owners of the market, where, they say, more than 15,000 counterfeit CD's have been seized during raids over the past three years. The industry group says the Columbus market and other flea markets knowingly act as havens for thousands of illegal discs and cassettes each year and deprive record companies of millions in sales.

VoIP is not a Phone Company

A Federal District Judge in Minnesota ruled that VoIP (Voice over Internet Protocol) provider Vonage is not a telephone company and does not need be regulated like a conventional telephone provider. The decision reverses a ruling by Minnesota's Public Utilities Commission which criticized Vonage for failing to file a detailed 911 service plan. Should VoIP services be regulated like standard telephone services?

NY Times: Judge Gives Leg Up to Internet Calls

Parents Sue To Stop School Wi-Fi

Parents in Oak Park, Illinois filed a class-action lawsuit against the local school district in order to prevent the district from using Wi-Fi wireless networking in the schools. The complaint alleges that the district "failed to adequately examine and assess the potential health risks that wireless LANs pose to humans, particularly children who are still growing," "breached the duty of care they owe to the children" and "exposed the children to unreasonably dangerous health risks caused by constant exposure to high frequency electromagnetic radiation." The plaintiffs "have collected more than 400 scientiic articles, commentaries and references outlining health risks from low intensity RF exposure."

20 Questions with Judge Birch

Howard Bashman posted 20 Questions for Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit. As with all of Bashman's previous interviewees, Birch's answers are interesting and well worth reading, particularly this section on copyright law:

To quote my good friend, Professor L. Ray Patterson: "There is no legal concept so important to so many that is understood by so few as copyright." To that I say AMEN! Copyright affects core activities of a democratic republic -- learning and communication. Copyright places limits on what, where and when citizens may read, see and hear. But those limits are carefully circumscribed. Copyright was born out of censorship in England and the response to that censorship, the statute of Anne, was incorporated into our Constitution (Article I, Section 8, Clause 8). That clause together with the complementary free speech clause of the First Amendment stand as a bulwark in protecting the free flow of ideas in a free society. In our society of free men (and women) and free markets, the necessity for informed citizens and consumers is essential. Uninhibited access to information and the ability to process it, critically, is central to our way of life -- politically and economically. But therein lies the problem, the marketing monopoly that inheres in copyright represents a conflict between two fundamental tenets of American society: free speech (and the concomitant right to hear it) and free enterprise. With the advent of the transmission copyright and the technological age of communication and learning, we are called upon to reconcile, balance and harmonize these forces in a manner true to our history and enriching to our future. From a legal standpoint I cannot think of a more challenging and exciting place to be -- that is why copyright holds such interest for me. To some degree, the same may be said of trademark, trade secret, and unfair competition law as well. As I tell my clerks -- in the law this is "where the action is"! That is why I find the law of copyright so fascinating and why I attempt to stay "current" in that body of law.

Also interesting is Judge Birch's take on the Supreme Court's decision in Eldred v. Ashcroft:

The result with Eldred is that it provides a windfall profit for a few monopolists (usually publishers, not creators) that results in a seismic fault in the structure for learning that is the framework for a free society. One can only hope that the Court will realize the error of its ways and correct a fundamental faux pas. Again, my criticism is made with great respect for the Court.

Reuters reports that a federal jury awarded $20 million in damages to market analyst Lowry's Reports Inc for copyright infringement by broker Legg Mason. Legg Mason paid for a single $700 per year newsletter subscription, but placed that newsletter on its corporate intranet, where 1300 employees could access the newsletter. The jury award included more than $800,000 in contract damages and about $19 million in copyright damages.

Why only music?

LawMeme's Ernest Miller continues to analyze the ideas and assumptions behind proposals for compulsory licensing for P2P with Compulsory Licensing - More What is Music and Compulsory Licensing - Why Only Music? What types of music should get compensated? If holders of music copyrights should have to grant compulsory licenses to internet sharers, why not holders of book or software copyrights?

"Second generation" CD copy protection debuted last month on R&B singer Anthony Hamilton's latest Arista release, "Comin' From Where I'm From." The copy protection technology does not necessarily protect CDs from being copied. In addition to the CD audio tracks, the disc includes two data "layers" with Windows Media versions of the tracks (one for Windows systems, the other for Mac OS X systems). After a listener has agreed to the disc's EULA, the listener's computer will only load the DRM-protected data layers and not the unprotected audio layer. However, Princeton grad student John Halderman has found that MediaMax CD3 Copy-Prevention System offers minimally effective copy protection, since it can be defeated by refusing to accept the EULA, by "holding the shift key every time they insert the CD," or by using an "unsupported" system, such as those running Mac OS 9 or Linux.

John Halderman: Analysis of the MediaMax CD3 Copy-Prevention System

Boston Globe: Technology that limits CD copies easily bypassed

LawMeme: New Audio CD DRM Defeated by Use of ''SHIFT'' Key

Protecting artistic vision

Do artists have sole control over how their art may be modified and moved, if their art is in a public space? Artist David Phillips, who created a sculpture park in Boston outside the offices of a company owned by Fidelity Investments, is suing Fidelity Investments in order to "keep his artistic vision intact." Phillips argues that his work is protected from change under both Federal and Massachusetts law. The Federal law is the Visual Artists Rights Act of 1990, which is codified as 17 U.S.C. 106A. The state law is the Massachusetts Art Preservation Act.

Can Phillips prevail?

Scott Hodes, the Chicago lawyer who handled the Jan Martin case, said there are two keys to the Phillips lawsuit: First, Epstein must show that Phillips is an artist of note with a reputation that could be damaged by the destruction or removal of his work. (Court filings include a list of Phillips commissions dating to 1983.) Second, Epstein must show, through the contract with Fidelity, that he owns the copyright on his work and didn't do it as a "work for hire," a term that, Hodes said, grants Fidelity the authority to do what it wants with the art. (Epstein said that Phillips does retain the rights.)

Verisign's Tangled Net

After Verisign broke the internet, ICANN president Paul Twomey sent an open letter to Verisign:

please consider this a formal demand to return the operation of the .com and .net domains to their state before the 15 September changes, pending further technical, operational and legal evaluation. A failure to comply with this demand will require ICANN to take the steps necessary under those agreements to compel compliance with them.

In response, VeriSign Freezes Search Service.

ICANN Watch wonders if Verisign acted in violation of the NASA Act

Comparative IP and Cyberlaw Symposium

The University of Ottawa Law & Technology Journal is holding a Comparative IP and Cyberlaw Symposium on October 3 & 4. For those of us not in Ottawa, the program is being webcast.

Microsoft Sued For Virii

Reuters: Microsoft Faces Class Action Over Virus Crashes

Microsoft Corp. faces a proposed class-action lawsuit in California based on the claim that its market-dominant software is vulnerable to viruses capable of triggering "massive, cascading failures" in global computer networks.

The lawsuit, filed on Tuesday in Los Angeles Superior Court, also claims that Microsoft's security warnings are too complex to be understood by the general public and serve instead to tip off "fast-moving" hackers on how to exploit flaws in its operating system.

The lawsuit claims unfair competition and the violation of two California consumer rights laws, one of which took effect earlier this year and is intended to protect the privacy of personal information in computer databases.

Trusted Computing

The EFF presents two pieces discussing trusted computing, an idea which is largely unfamiliar to me.

Fred Von Lohmann: Meditations on Trusted Computing

In 1641, in his Meditations on First Philosophy, mathematician and philosopher Rene Descartes asked how it is that we can trust our senses. What if, he asked, everything we experience is actually part of a delusion created by an omnipotent demon bent on deceiving us?

It turns out that a similar question has been weighing on the minds of Microsoft, Intel, and a number of other computer companies. How do you know that your computer is actually what it seems? After all, hackers could have broken into your computer and replaced the software on it with software that imitates, in every particular, the software that was on your computer before. To you, things would appear unchanged.

Trusted Computing: Promise and Risk
A straightforward change to the plans of trusted computing vendors could leave the security benefits intact while ensuring that a PC owner's will always trumps the wishes of those who've loaded software or data onto the PC.

Inconsistent privacy standards

NY Times: Your Own Affair, More (VCR) or Less (MP3)

"Consumers are almost totally unaware that different modes of communication carry with them different expectations of privacy and have different rules," said Paul Glist, a communications lawyer with Cole, Raywid & Braverman in Washington who has represented major cable-television companies. "Every line of business has a different set of regulations, and it really is a maze. There are many times when a company comes to me and they just want to do the right thing and they can't figure it out. You might have one law saying you have to disclose certain information to law enforcement and another law saying you can't disclose the information unless other conditions are met."

Online payment patent suit

AP: PayPal Files Patent Lawsuit Vs. Bank One

In the latest complaint filed Monday, PayPal says it informed Bank One in February of its patent on a process that allowed Internet users to make secure payments and authenticated transactions over a computer network, but the Chicago-based bank's online bill paying system still violates its patents.

E-mail is broken

Salon.com: E-mail is broken: "Four Internet pioneers discuss the sorry state of online communication today. The consensus: It's a real mess."

Redskins Win Trademark Case

Washington Post: Redskins Can Keep Trademark, Judge Rules

U .S. District Judge Colleen Kollar-Kotelly threw out a federal board's 1999 decision to cancel six highly lucrative Redskins trademarks. She said she was not opining on whether the word "redskin" was insulting or not but concluded that the U.S. Patent and Trademark Office's board had relied upon partial, dated and irrelevant evidence submitted by the activists.

DC District Judge Kollar-Kotelly: Opinion in Pro-Football, Inc. v. Suzan Shown Harjo, et al.

NY Settles with Yahoo!

New York State Attorney General Eliot Spitzer announced a settlement with Yahoo! that will "protect consumers from unwanted email and telemarketing campaigns and ensure that they understand and control marketing solicitations."

In the Matter of Yahoo! Inc.

Trademark Dispute Documents Online

ResearchBuzz: USPTO Puts Trademark Dispute Documents Online: "The Trademark Trial and Appeal Board of the US Patent and Trademark Office has put up a Web site containing images of documents available in trademark disputes. It's available at http://ttabvue.uspto.gov."  

FindLaw columnist Julie Hilden discusses Anonymity Versus Law Enforcement: The Fight Over Subpoenaing Alleged Downloaders' Names From Internet Service Providers. Hilden discusses the extent of the DMCA subpoena power, whether the scope of that power conflicts with the First Amendment right to speak anonymously and the importance of the rights to anonymous speech.

Sunroofs and Free Speech

The Trademark Blog: CrownPontiacNissan.com - Free speech domain name case:

This decision is somewhat in contrast to those such as the Jews for Jesus, Planned Parenthood and Peta.org decisions, in which use of the per se version of a trademark tends to be actionable.  However, as Thomas Ballock has correctly pointed out to me, in Jews for Jesus and Planned Parenthood, the courts strained to find some form of commercial activity on the part of defendant, usually focusing on defendant's own agenda.  Here, Ballock's actions in venting his dispute was seen as non-commercial. 

Talk before suing and more

Today's developments in the music industry's battle against file sharers:

Washington Post: Music Industry Will Talk Before Suing

The music industry, criticized for its recent wave of lawsuits aimed at stopping song swapping on the Internet, agreed yesterday to contact future defendants before they are sued and give them a chance to pay a cash settlement or argue that they have been mistakenly accused of copyright infringement.

Wired News: Rappers in Disharmony on P2P

Recording Industry Association of America keeps a united front, but LL Cool J and Chuck D candidly shared their opposing views on file sharing and its effect on the industry. The musicians were invited to testify before the U.S. Senate Committee on Governmental Affairs, which is investigating the effect of peer-to-peer file sharing on the entertainment industry.

SF Chronicle: 52 piracy suits settled

The Recording Industry Association of America said on Monday it has reached out-of-court settlements with 52 people who were sued for sharing online music illegally and 12 others who were targeted for possible legal action.

Mi2N: RIAA Finds Few Takers For Shamnesty: "The Recording Industry Association of America today announced that 838 of the 60 million Americans who file-share have accepted its "Clean Slate" offer."

Reuters: Lawsuits Damp Down P2P Audience: "Nielsen//NetRatings, which tracks Internet usage, said on Tuesday it found a 41 percent drop over the last three months in the audience for Kazaa, the leading music file-sharing service."

Yet another legit music download service will follow in the footsteps of eMusic and iTunes. Mercora will launch next month, inspired "in equal parts by iTunes, Friendster and eBay."