California Senate passes anti-Gmail bill

Reuters: Tightening the Reins on Gmail: “California’s state Senate approved the first-of-its-kind bill by a vote of 24-8 to restrict how Mountain View, California-based Google’s upcoming free “Gmail” service could work once it is available in wide distribution.”
SB 1822 (amended):

This bill would allow a provider of
e-mail or instant messaging services to review, examine, or evaluate
the content of a customer’s e-mail or instant messages only if the
review is for the automated and contemporaneous display of an
advertisement to the user and other specified conditions are
satisfied. The bill would provide that its provisions do not prevent
a provider of e-mail or instant messaging services from evaluating
the contents of e-mail or instant messages for specified purposes,
including the removal of malicious programs. The bill would specify
that its provisions do not imply consent to the examination of e-mail
or instant messages if consent is otherwise required

Previously: Gmail privacy kerfuffle

Ante Up

Mark A. Lemley: Ex Ante Versus Ex Post Justifications for Intellectual Property

In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored

Counterfeit Clubs Raids in Shanghai shopping area turn up millions in counterfeit clubs

Chinese anti-counterfeiting enforcement authorities on May 21 conducted a series of simultaneous raids of retail shops and distributors of counterfeit golf clubs and equipment in Shanghai….
The government raids took place after six American golf equipment manufacturers filed complaints with Chinese anti-counterfeiting enforcement authorities.

(via The Trademark Blog)

Adware special report

Over the next week, in place of regular blogging, while my brain eases out of vacation mode back into info-aggregating mode, I will be posting a series of posts about adware, focusing on legislation and litigation, abridged and adapted from a seminar paper.
Prelude: Pop-ups trigger more lawsuits (5/19)
Part 1: Defining Adware (5/20)
Part 2: Litigation summary
Part 3: Regulatory goals
Part 4: Legislation

Defining adware

Adware is software, installed with some minimal level of user consent, which monitors Internet usage in order to display ads from third parties. These may be distinguished from more malicious programs, “spyware,” which are installed exclusively without user consent, either by drive-by downloads or browser hijacking. However, some third-party developers and distributors may bundle adware in drive-by download packages.
This series will focus on the two companies which are the most prominent in developing adware: Claria Corp. (“Claria”) and (“WhenU”). Claria, formerly known as The Gator Corp., distributes an adware program called GAIN and sells advertising on the GAIN Network. WhenU’s adware program is SaveNow. WhenU and Claria have been the most successful at attracting litigation from web site publishers and trademark owners.1
Claria and WhenU distribute adware by offering Internet users a quid pro quo. In exchange for occasionally viewing pop-up ads, consumers get free software that would otherwise cost about $30. Claria offers utilities which allow users to securely store passwords, search the web from a desktop toolbar, receive weather forecasts, manage a calendar and sync a personal computer clock with an atomic clock. WhenU offers a similar array of utilities. In addition, Claria and WhenU will pay third-party software companies for distributing GAIN or SaveNow bundled with other free software. Many internet users find adware installed on their systems as a result of installing peer-to-peer programs. Claria relies heavily on its bundling agreement with Shaman Networks’ KaZaA Media Desktop in order to attract new users.
Users can install GAIN and SaveNow much more easily than they can remove these programs. When installed as a component as other programs, neither GAIN nor SaveNow appear in the Windows “Add/Remove Program” feature. Instead, the ad server is installed as a component of its host application. In order to be able to remove these programs users must be aware of which application is sponsored by the adware. The adware programs are intentionally difficult to uninstall. In order to fully remove its software from a computer, Claria requires affirmative consent, so as to protect users from “unintentional, unauthorized or automated uninstallation of your GAIN Publishing software.”


Not to gloat, but…

In early April, I predicted that NBC might pick up the NHL broadcast deal on the cheap.
In the NY Times, Richard Sandomir reports: N.H.L. Games Go to NBC Next Season

NBC will carry a regionalized package of regular-season games on six or seven Saturday afternoons, followed by playoff games every Saturday until the Stanley Cup finals, when the network will pick up coverage with Game 3 and continue through Game 7, if necessary.
The league will not receive the kind of upfront fees that are common in most network television contracts….In this deal, which is structured like the one NBC has with the Arena Football League, the network and the N.H.L. will share revenue. NBC will take the first chunk to cover its production and distribution costs, and the cost of pre-empting other programming during the Stanley Cup finals. The league will then get the major part of the next set of revenue, and then an even split of what remains.