June 2004 Archives

Ashcroft v. ACLU link roundup

Justice Dept. Dir. of Public Affairs: Regarding the Supreme Court's Decision on the Child Online Protection Act:

Our society has reached a broad consensus that child obscenity is harmful to our youngest generation and must be stopped. Congress has repeatedly attempted to address this serious need and the Court yet again opposed these common-sense measures to protect America's children. The Department will continue to work to defend children from the dangerous predators who lurk in the dark shadows of the World Wide Web.

Ernest Miller: First Thoughts on Ashcroft v. ACLU: "The least restrictive means in this case are filters. Yea filters! Go filters! The opinion reads like a censorware author's dream marketing campaign."

Lawrence Solum: Ashcroft v. ACLU

Lyle Denniston: Sex, the Internet and congressional frustration

The Supreme Court, telling Congress for the third time that it has only limited power to try to censor sexually explicit material on the Internet, dropped a broad hint today that the lawmakers may be doomed to frustration if they try again. Because technology is advancing so rapidly, the Court said in blocking enforcement of the Child Online Protection Act, Congress may find that it has laid down rules based on a current state of technology only to see the rules become outdated through years of court review.

Eugene Volokh looks at the case and asks: "what does "prurient" mean here?"

Lawmeme: Ashcroft v. ACLU: Evaluation

Justice Breyer makes a very good point in dissent: The majority here that wholeheartedly endorses the effectiveness of filtering software is mostly the same as the dissenters who unhappily listed the faults of filtering software in the American Library Association case. Indeed, Justice Breyer seems to make a special effort to list the exact text of the dissenting opinion's criticisms in ALA.

NY Times: Justices Uphold Block of Web Porn Law but Send Case Back

The majority explicitly stopped short of deciding whether the law is constitutional. That is a question that can only be answered after a trial, the majority said, even as it acknowledged that the rapid advances in Internet and computer technology make it difficult to foresee what all the issues at a trial will be.

Washington Post: Justices Leave Online Porn Case Unresolved

One COPA supporter said that the court is exceeding its powers. "This is akin to judicial tyranny," said Patrick Trueman, senior legal adviser at the Family Research Council and former chief of the child exploitation unit at the Justice Department's Criminal Division. "The court is dismissing acts of Congress which reflect the will of the people... This decision says to pornographers that you have a green light to distribute material to children."

Ashcroft v. ACLU

The Supreme Court released its decision in Ashcroft v. ACLU, upholding the injunction on the Child Online Protection Act (COPA), because the statute likely violates the First Amendment.

The decision is 5-4. Justice Kennedy delivered the opinion, joined by Stevens, Souter, Thomas and Ginsburg. Stevens filed a concurring opinion, joined by Ginsburg.

Scalia dissented.

Breyer dissented, joined by Rehnquist and O'Connor.

Now, off to read the decision.

Investigating E-Vote Officials

Wired News: Digging for E-Voting Skulduggery: "The woman who launched the controversy over electronic voting machines has formed a nonprofit consumer group that plans to investigate election officials who may have conflicts of interest with voting companies."


Every Gator has its day in court

The 9th Circuit held oral arguments en banc on Wednesday in Gator.com v. L.L. Bean, 02-15035. The 9th Circuit panel decisions is Gator.com v. L.L. Bean, 341 F.3d 1072 (2003).

Here is a background at FindLaw: The Ninth Circuit to Look at Internet Jurisdiction: Does Business Conducted in Cyberspace Satisfy the Requirements of Continuous and Systematic Contact?

Law.com: 9th Circuit Snaps at Gator's Argument

The en banc arguments were lively, with nine of the 11 judges questioning lawyers about the benefits -- and dangers -- of allowing Gator.com to sue L.L. Bean Inc. over pop-up advertising that the latter says infringed on its intellectual property.

Joe Gratz: Gator.com v. L.L. Bean

The en banc panel focused more than I expected on the jurisdictional effect of the cease-and-desist letter. On one hand, L.L. Bean lobbed this potentially damaging document into California, and causing damage within the jurisdiction makes jurisdiction proper. On the other hand, all L.L. Bean was doing was enforcing their trademark rights, which they had a legal duty to do; the C&D wasn’t intended to cause any damage, only to ask Gator to stop infringing. Toward the end of the oral argument, L.L. Bean’s attorney (who was doing a great job with a hard case) made the point that they had no other way to tell Gator to stop, so if the court held that sending C&Ds caused personal jurisdiction to attach, every IP owner would be instantly amenable to suit anywhere someone infringed their IP rights, if they told the infringer to stop.

Future of P2P in the Senate

Earlier this week, the Senate Committee on Commerce, Science & Transportation held hearings on The Future of Peer-to-Peer (P2P) Technology

The Act formerly known as Induce

Ernest Miller: The Obsessively Annotated Introduction to the INDUCE Act

News roundup at FurdLog: IICA (née INDUCE) Act Coverage

Chirs Rush Cohen: INDUCE Act inducing me to do lots of research

EFF lawyers drafted a fake complaint which could be filed if the Induce Act passes: Prelude to a Fake Complaint

When the lawyers at EFF first sat down and asked "Whom could we sue under the Induce Act if we were an abusive copyright holder?" the answer was clear: pretty much everybody. Playing the devil's advocates, we knew we could draft a legal complaint against any number of the major computer or electronics manufacturers for selling everyday devices we all know and love—CD burners, MP3 players, cell phones—and that with that complaint, we could file a lawsuit that would survive any attempt to dismiss it before trial, costing the targeted company up to $1,000,000 per month in legal fees alone. The Induce Act is a nasty, brutish stick in the hands of the wrong plaintiff.

Utah Anti-Spyware Law Enjoined

News.com: Utah judge freezes anti-spyware law

A Utah judge has granted an injunction to adware maker WhenU.com to temporarily halt the state's new anti-spyware law from going into effect.

Boucher on tech legislation

News.com's Declan McCullagh interviews Rep. Rick Boucher (D-Va) about copy protection, the DMCA and Digital Media Consumers' Rights Act and regulating VOIP: The Hill's property rights showdown:

Our intellectual-property laws have always been intentionally porous, and the porous nature of those laws, accommodating, for example, the Fair Use Doctrine, has enabled the society to have a right to use intellectual property in certain circumstances without having to obtain the permission in advance of the owner of the copyright.

BusinessWeek intro to adware

BusinessWeek is running a feature about adware in its June 28 issue: Guess What -- You Asked For Those Pop-Up Ads

Once adware recipients find out what's going on, many want out. Half of all people that receive Claria's adware product, for example, uninstall the software within the first month, the company says. This continual attrition forces adware companies to step up the battle for footholds in more computers. Robert Kadar, a former executive director of sales at WhenU, still defends adware as an effective marketing tool, but notes that the adware companies "have internal tension between wanting to be a good corporate citizen and battling high customer turnover." The latter, he says, "always wins out." As it now stands, Claria's Gator program is on 43 million machines, WhenU is on 25 million PCs, and 180solutions reaches 30 million, according to the companies.
Graphics: Adware: Who's Who and Avoiding Adware

Interviews: Avi Nadler (WhenU CEO) and Ben Edelman (anti-spyware activist)

Induce Act Roundup

Fred von Lohmann broke the news that song writing Senator Orrin Hatch plans to introduce the awkwardly-named INDUCE Act ("Inducement Devolves into Unlawful Child Exploitation Act of 2004"), which amend §501 of the Copyright Act to add inducement to copyright infringement as another ground for copyright infringement. von Lohmann:

Even a moment's reflection should make the danger to innovators clear -- you now have to worry not just about contributory and vicarious liability, but an entirely new form of liability for building tools that might be misused. It will be interesting to see whether the bill expressly precludes any Betamax-type defense

Susan Crawford: Here's something to worry about:

'Induce' means intentionally aids, abets, counsels, or procures.  So you can't even hire a lawyer if you're doing something risky.

This is amazing.  Now we're waaaaaay beyond contributory and vicarious theories of liability, which are court-created and pretty darn broad on their own.  See Napster 9th Circuit, Aimster 7th Circuit.  It's not even clear what the limit to this is -- "aids" could mean that even something that would have been fair use under the Sony Betamax decision is now an illegal inducement. 

Under current copyright law, decentralized P2P networks like Gnutella or Kaaza, which have significant, non-infringing uses, do not themselves infringe upon copyrights. However, they might be considered to induce uploaders to infringe copyrights by making it so easy to copy files.

In News.com, Declan McCullagh writes: Antipiracy bill targets technology

forthcoming bill in the U.S. Senate would, if passed, dramatically reshape copyright law by prohibiting file-trading networks and some consumer electronics devices on the grounds that they could be used for unlawful purposes.

Inducement already exists in patent law. See 35 U.S.C. 271(b): "whoever actively induces infringement of a patent shall be liable as an infringer." Of course, patent law provides for much stricter protection against infringement for a shorter time period than copyright law. Copyright law offers longer protection, but with limitations such as fair use. Copyright law may also have more significant First Amendment implications.

Ernest Miller: INDUCE Act is Free Speech Killer

It also seems to me that this statute as applied to speech is a content-based restriction, which means that it is subject to what is known as "strict scrutiny." In order to pass the strict scrutiny standard, the law must be "narrowly tailored" to meet a "compelling government interest." I'll grant that preventing copyright infringement is a "compelling government interest" but I'll be damned if the law is narrowly tailored to achieve it for a number of reasons. For example, much speech that induces infringement also induces fair use. You can't really stop one without stopping the other.

In June 2003, Oracle made an unsolicited tender offer to buy PeopleSoft, a competitor in the enterprise software market. If the hostile takeover was successful, a combined Oracle-PeopleSoft would dominate certain markets. The US Department of Justice filed a civil anti-trust suit to prevent that acquisition from proceeding.

PeopleSoft is not a party in the lawsuit, but one of PeopleSoft's lawyers, Gary Reback, is sitting in on the trial and blogging daily notes

(via Ernie the Attorney)

Those wacky libertarians

Yesterday, the Cato Institute held a conference on Law and Economics of File Sharing & P2P Networks. According to Digital Music News, this was "one of the best [conferences] in digital music this year," so it might be worthwhile checking out the webcast.

Cato's Adam Thierer suggests forgoing copyright legislation for judicial resolution of copyright claims:On Drawing Lines in Copyright Law

But how we call in the cops and who the IP cops are makes a big difference. In particular, we shouldn't expect Congress or regulatory agencies to legislate on every problem that creeps up or ban or mandate specific technological solutions in an attempt to solve IP debates. But when certain parties are egregiously violating the rights of copyright holders, they are certainly justified in seeking redress in the courts. Common law resolution to copyright disputes has the advantage of avoiding a hasty, ham-handed legislative quick fix. As has been the case throughout most of copyright's history, courts can sort through rival claims to determine where the creators' concerns have merit and where the rights of consumers should instead carry the day
(via Joe Gratz)

Inspiration or Infringement?

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Last year, the son of photographer Guy Bourdain sued Madonna claiming that the video for the song "Hollywood" infringed on Bourdain's copyrighted photography, because the video adopted a similar style to Bourdain's noir photos. They settled earlier this month.

Now, lets look at some robots. Low Culture suggests, Twentieth Century Fox, meet award-winning director Chris Cunningham and notes that the visual style of the upcoming film I, Robot (based on the Isaac Asimov book) is visually similar to the video for Bjork's song All is Full of Love.


Should this kind of visual homage be considered a type of copyright infringement? If so, how much style comprises an expression, rather than an idea?

(via Gothamist)

As part of the music industry price-fixing class action settlement, the music industry agreed to donate CDs to schools and libraries, at an estimated cost of $76 million. What are some of the CDs that the libraries are receiving?

One 10-library system received 1325 CDs. 482 of those CDs are:

57 copies "three mo' tenors" (2001)
48 copies Mark Willis "loving every minute" 2001 (country)
47 copies "corridos de primera plana" by "Los Tucanes di Tijuana" (2000)
39 copies of "Christmas with Yolanda Adams"
37 copies of Michael Crawford's "A Christmas Album" (Phantom of the Opera Broadway guy)
34 copies of the Bee Gees'  "This Is Where I Came In " (2001)
34 copies "The Collector's Series, Vol. 1" by Celine Dion
27 copies of a recording of Puccini's Madam Butterfly
24 George Winston's December (1982) (solo piano, jazz or new age)
23 copies of Aerosmith's "Just Push play" (2001)
23 copies "A smooth Jazz Christmas" by Dave Koz and friends
21 copies of Son by four's "Purest of Pain" (Latino pop band)
20 copies "symbols of Light" by Greg Osby (jazz)
20 copies "My kind of Christmas" by christina Aguilera
18 copies of Thalia's "grandes exitos" (Latina artist, means "greatest hits")
10 copies "A New day has Come" by Celine Dion
Nothing but the best.

MSNBC: Librarians: Free CDs too much of a good thing

Is DRM bad business?

Cory Doctorow tells Microsoft why DRM is bad business:

Here's what I'm here to convince you of:

1. That DRM systems don't work

2. That DRM systems are bad for society

3. That DRM systems are bad for business

4. That DRM systems are bad for artists

5. That DRM is a bad business-move for MSFT

DRM frustrates the average consumer while failing to prevent outright piracy. DRM precludes innovative uses of technology. Anti-circumvention laws are anticompetitive.

Patent Rules

FTC: Do-Not-Spam Registry is No-Go

FTC: New System to Verify Origins of E-Mail Must Emerge Before “Do Not Spam” List Can Be Implemented, FTC Tells Congress

The Federal Trade Commission today told Congress that, at the present time, a National Do Not Email Registry would fail to reduce the amount of spam consumers receive, might increase it, and could not be enforced effectively. In a report filed in response to a statutory mandate, the FTC also said that anti-spam efforts should focus on creating a robust e-mail authentication system that would prevent spammers from hiding their tracks and thereby evading Internet service providers’ anti-spam filters and law enforcement.
Full Report: The CAN-SPAM Act of 2003: National Do Not Email Registy: A Federal Trade Commission Report to Congress (June 2004)

MSNBC: Do Not Spam list won't work, FTC says

With a recent uptick in the volume of spam, technical means will be needed to control the deluge, because normative and legal means alone are currently insufficient. If spammers can not be convinced to play by the rules, then the physics of the ecosystem need to be changed.

Both Microsoft and Yahoo are developing technical measures to stem the tide of spam. Wired News: Net Rivals Embrace to Fight Spam. Microsoft's approach, known as Sender ID, would "require organizations to set up e-mail servers so that they automatically verify the domain from which e-mails were sent." Yahoo's DomainKeys system will verify that the "from" address in an e-mail is not faked by using cryptography.

Yahoo: DomainKeys: Proving and Protecting Email Sender Identity

DomainKeys is a technology proposal that can bring black and white back to this decision process by giving email providers a mechanism for verifying both the domain of each email sender and the integrity of the messages sent (i.e,. that they were not altered during transit). And, once the domain can be verified, it can be compared to the domain used by the sender in the From: field of the message to detect forgeries. If it's a forgery, then it's spam or fraud, and it can be dropped without impact to the user.
Yahoo hopes that the concept will become an Internet standard.

From Microsoft, Microsoft Is Committed to Help End the Spam Epidemic and a Q&A: Microsoft's Anti-Spam Technology Roadmap.

Soft Patents

In a Federal Reserve Bank of Philadelphia working paper, James Bessen (Research on Innovation and Boston University) and Robert M. Hunt (Federal Reserve Bank of Philadelphia) find that software patents do not lead to an increase in software inventions: An Empirical Look at Software Patents

The authors found that during the 1990s, all else equal, firms who increased their focus on software patents tended to reduce their R&D intensity relative to their peers. This suggests that in the 1990s, software patents substituted for R&D. This negative relationship was found only in certain industries, specifically those industries noted strategic patenting.
Full Text (pdf): An Empirical Look at Software Patents (Mar. 2004). See also the less technical The Software Patent Experiment from the same authors.

AP: New 'Hiccup' for Florida Voters

The [voting[ machines, made by Election Systems & Software of Omaha, fail to provide a consistent electronic "event log" of voting activity when asked to reproduce what happened during the election, state officials said.
It's a good thing that elections in Florida are uncontroversial and never close...

Wired News: Legal Threats Stalk Adult Sites

The landmark federal prosecution of an infamous porn producer is putting the fear of John Ashcroft into the owners of countless adult websites, even those whose content is far milder than the material under attack.

Experts told an audience of porn webmasters last weekend that they indeed have reason to worry. A variety of X-rated photos and videos could become illegal nationwide if the Bush administration scores an important victory in its war on obscenity. But the online adult industry is divided over exactly what to do about the threat from Attorney General Ashcroft and his crew.

Going International

A quick one

SCO, The Beatles, NeimanCarcass and more in Denise Howell's latest contribution to IP Memes: Not SCO Fast — And More. Subscribe at Technolawyer.

Fun with licensing

Permissions on Digital Media Drive Scholars to Lawbooks

Many scholars, librarians and legal experts see rich promise for the use of multimedia materials in research and education. But the possibility of litigation over file-sharing and confusion over digital copyright protections have scholars feeling threatened about venturing beyond the more familiar world of printed texts.

Photographers and N.F.L. Collide Over Licensing Plan for Archives

On one side is the National Football League, which wants to send its archive of approximately three million images of players and games to a third-party photo agency to license; Getty Images and WireImage are the two most likely partners. The archive includes images ranging from iconic N.F.L. players to Super Bowl highlights.

Opposing the move are 75 of the several hundred photographers who created much of the archive in the last 40 years and still hold the copyrights to the images. Without their permission, the photographers say, the N.F.L. has no right to license the archive to anyone.

See New York Times Co., Inc. v. Tasini (Articles written by freelancers could not be included in a computerized database without permission.)

Broadcast This

In the Observer (UK), John Naughton criticizes the WIPO broadcast treaty proposals: A law unto themselves

The [WIPO] meeting was assembled to discuss a draft treaty to 'protect' broadcasters and broadcasting signals.

For 'protect' read 'unprecedented, restrictive and anti-social powers'. If enacted, this treaty would require countries to change their laws to grant broadcasters astonishing freedoms. These include: 'the exclusive right to authorise or prohibit the fixation [copying/recording] of their broadcasts'; 'the exclusive right to authorise or prohibit the direct or indirect reproduction, in any manner or form, of fixations of their broadcasts'; 'the exclusive right to authorise or prohibit the retransmission, by wire or wireless means, whether simultaneous or based on fixations, of their broadcasts'; and other rights, including control of exhibition and distribution of recordings of broadcasts.

Previously: WIPO considers broadcast flag

iTunes Takes Europe

iTunes is available in the UK, France and Germany. Prices are £0.79/£7.99 in the UK ($1.44/$14.61) and €0.99/€9.99 ($1.20/$12.14) in France and Germany. iTunes now has 700,000 tracks.

BBC News: Europe launch for Apple's iTunes: "ITunes will be in direct competition with Napster in the UK and OD2's European services. ITunes music store for other European countries will launch October."

Calculating statutory damanges

In Venegas Hernandez v. Sonolux Records, the First Circuit examined the calculation of statutory damages in the Copyright Act and decides how to calculate the number of infringements for purposes of assessing statutory damages available in §504(c):

Under § 504(c) the total number of "awards" of statutory damages that a plaintiff may recover in any given action against a single defendant depends on the number of works that are infringed and the number of individually liable infringers and is unaffected by the number of infringements of those works.
The Disctrict Court has discretion in setting the amount of statutory damages assessed per work and can take into account the number of infringements of each work when calculating the value of damages per work.

(via Copyfight)

The IFPI is bringing litigation against its consumers as a business strategy to Europe. Already, the IFPI has brought a number of cases across the continent. In Denmark, 17 individuals agreeing to pay compensation averaging "several thousand euros." In Germany, one file-sharer will pay 8,000 euros. Thirty Italian individuals have been charged with criminal copyright infringement.

IFPI is extending the litigation to other countries in Europe, starting with 24 more lawsuits in Denmark. France, Sweden and the UK have "launched high-profile warning campaigns" and "will prosecute file sharers if necessary."

Recording industry shows first results of international campaign against illegal file-sharing

IFPI Chairman and CEO Jay Berman said: "Today's results show that litigation, combined with the rollout of new legal online music services, is having a real impact on people's attitudes to illegal file-sharing, and this in turn is affecting levels of file-sharing activity. We are not claiming victory yet, but we are encouraged by the way the market is developing, and by the shift we see in public opinion.

Reuters reports: Music Industry Preps More Lawsuits

Mi2N: IFPI Playing [dangerously] With P2P Figures...

The beginning of this week curiously matches IFPI's new leitmotiv "music piracy files falls 27%". Probably the analyst who invented such statistics did not realize the amount of computing power and bandwidth it would take to verify such a statement in such a short timeframe...


A Utah Court heard oral arguments this week in WhenU's challenge to Utah's Anti-Spyware Act. AP: New York Company Challenges Utah's Spyware Law

WhenU.com Inc. claims the law, which took effect last month, is "arbitrary and Draconian" and violates its free-speech rights.

WhenU lawyers told 3rd District Judge Joseph Fratto Jr. on Thursday that regulation of advertising on the Internet is a matter of interstate commerce subject to federal, not state, jurisdiction.

Courtesy of Ben Edelman, more documents in the WhenU v. Utah lawsuit.

Previously: WhenU Challenges Utah Anti-WhenU Law and complete adware coverage.

Claria countersues LL Bean

ClickZ: Claria Fires Back at L.L. Bean Suits Against Advertisers

Claria's lawsuit, filed in the Eastern District of Texas, claims that L.L. Bean intentionally interfered with existing and potential contractual relationships by suing Claria advertisers. It also accuses the retailer of disparaging its business and conspiring to intimidate Claria's customers and potential customers.

Previously: Pop-Ups Trigger More Lawsuits and All about adware

(via The Trademark Blog)

Set the phones free

The Foundation for Taxpayer and Consumer Rights filed a lawsuit against AT&T Wireless, T-Mobile USA and Cingular Wireless claiming that selling cell phones unnecessarily "locked" to a particular service violates California's unfair competition laws, (Bus. & Prof. Code §§17200 et seq. and §§17500 et. seq.).

GSM phones use SIM cards to store the phone's identity-- its phone number, association with a cell network, and contacts. The SIM card may be swapped out, so that a mobile phone owner can swap back and forth between different devices and still receive calls at the same number and use the same service. One can also swap a different SIM card into one's phone when traveling to a different country and using a different network or when switching carriers.

GSM carriers in the US all sell subsidized phones "locked" to that particular service-- so that subscribers can not use their phones on different services. Verizon and Sprint use CDMA technology, which does not offer the same kind of flexibility as the GSM standard-- CDMA phones do not use SIM chips.

In Europe, the EC ruled that handset locking would be hamrful to competition and warned manufacturers and network operators not to produce and/or sell locked phones in the EU.

The California law prohibits the use of lawful, unfair or fraudulent business acts or practices and unfair, deceptive, untrue or misleading advertising.

The complaint alleges that this is an unfair and anticompetitive way to tie consumers to a particular service in addition to multi-year contracts. Carriers argue that this is necessary in order to recover the subsidy of the phone. Locked phones encourage wasteful practices by not allowing consumers to continue using perfectly good phones on other services.

A blanket refusal to unlock phones is anti-competitive and, since the advent of number portability, merely another way to create friction to prevent customers from switching to other services. I have a cell phone locked to Cingular. When I called up Cingular customer service to cancel my service, after porting my number to another carrier, I asked to have my phone unlocked, and the representative said that she could not, because it was against the company's policy to do so.

(via Mobile Tracker)

Takedown and dirty

Do ISPs have the potential to step into the role of Internet censor or copyright police?

Christian Ahlert: How Liberty was lost on the internet

As part of a recent research project, I posted a section of Mill's On Liberty on the internet (which is clearly in the public domain), then issued unfounded copyright complaints against it (1). One internet service provider (ISP) removed the chapter almost immediately. This illustrates the problem with self-censorship procedures, which rely on hidden judgements being made by unaccountable bodies.

The authors found that the UK ISP shut down the site almost immediately after receiving the complaint, made on behalf of the chairman of the non-existent John Stuart Mill Heritage Foundation. In contrast, the US ISP follow up requesting answers to detailed questions in compliance with the DMCA notice and takedown provision.

Perhaps the DMCA does serve free speech interests. What role should ISPs play in controlling the distribution of copyrighted material? Do the DMCA notice and takedown provisions (17 U.S.C. §512) give too much power to copyright holders, ISPs, or copyright infringers?

The full study is supposedly available here (currently, the "file [is] not found" on the server.)

(via Joe Gratz)

Anti-Spam in the EU

BBC News: United front against spam urged

[EC's Information Society directorate Philippe] Gerard said that this directive had now been transposed into national laws in many member nations, but that by itself, it was not going to stop spam.

"Legislation is just part of the answer," he said.

The threat of legal action might deter some spammers from getting started and would help punish those that break the law, said the EU official, but there was much more that industry had to do to make its anti-spam work really effective.

WIPO considers broadcast flag

Cory Doctorow, Wendy Seltzer and David Tannenbaum took notes from the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights (SCCR 11) meeting to consider a treaty to protect broadcasters' rights.

iTunes goes mobile

BBC News: Apple iTunes 'set for UK launch': "ITunes is due to be unveiled in London on 15 June, according to sources. Apple's rival Napster launched a legal download service in the UK on 20 May."

Today, Apple released AirPort Express and AirTunes. The $129 device enables the wireless streaming of music from a computer to a stereo.

Patently portable

Sony settles patent suit with inventor of the "Sterobelt," a portable music player which preceded the Walkman. The inventor now plans to go after Apple. News.com: Sony pays millions to inventor in Walkman dispute

America's Favorite Pasta?

In American Italian Pasta Co. v. New World Pasta Co., the Eight Circuit held that the use of the phrase "America's Favorite Pasta" does not constitute false or miselading advertising under 43(a) of the Lanham Act.

(via How Appealing)

News Search and Defamation

Findlaw's Julie Hilden: Why You Can't Sue Google: The Reason Defamation Law Applies to News Sites, But Not News Search Sites, And What This May Mean For the Future

Part of an ongoing series. Previously: Part 1: Defining Adware

Quality of Consent to Adware Installation
Both Claria and WhenU are emphatic that they are installed with the consent of their users. WhenU tells its users:

SaveNow was installed on your computer as a module that comes with free software that you downloaded from the Internet. At that time, you accepted a license agreement as part of the download process. It is our strict policy to distribute SaveNow only to users who have accepted the license agreement.
In his discussions with the press, WhenU CEO Avi Nadler emphatically asserts that WhenU software executes on personal computers with the express consent of all of its users.

However, few GAIN or WhenU users are aware that they agreed to have GAIN software display ads on their computers. A survey conducted by PC Pitstop.com finds that only 24.9% of GAIN users and 13.3% of WhenU users are aware that the programs are installed on their systems. A survey of GAIN users, commissioned by the plaintiffs in the consolidated litigation against Claria, finds that only 13.2% of GAIN users believed that they consented to have GAIN show advertisements on their computers. A mere 4.1% of GAIN users believed that they consented to have Claria monitor their web surfing behavior. Only 10.5% of GAIN users and a mere 4% of WhenU users read the license agreement prior to installing the software. Only three percent of GAIN users and 1.6% of WhenU users read the license agreement for longer than five minutes prior to installing the software. WhenU notes that the PC Pitstop surveys are not scientific and should not be considered representative of all of its users. However, this data hardly supports the idea that GAIN or WhenU users have truly offered informed consent before installing the software. Furthermore, visitors to a website like PC Pitstop are likely to be interested in how their computers work and may be more savvy than computer users in general.

Both SaveNow and GAIN present the terms of license agreements and require affirmative assent before installation. SaveNow and GAIN users indicate their consent to install the software by accepting a “clickwrap” license. A clickwrap license appears on a computer screen and a user must accept the license terms before the software will install itself. However, as part of the installation process for both Claria and WhenU software, the clickwrap license appears only as one screen in a multiple-screen series of prompts to which a user must indicate assent. When installing SaveNow, 13 words of WhenU’s 1,224 word license agreement are presented in a small box that occupies less than one quarter of a window in the installer program, tucked away in the lower left-hand corner of that window.1 An installer for GAIN displays only 73 words of Claria’s 6,464 word license agreement.

Read on

At Yahoo, Adware ≠ Spyware

| 1 Comment

Last week, Yahoo! released a toolbar (for Windows Internet Explorer) designed to detect existing installations and prevent future installations of spyware:

Anti-Spy offers consumers a way to identify potentially unwanted software like spyware, then lets consumers decide whether they want to disable/remove, ignore or keep the files that are found. If a user chooses to delete suspect software and later changes their mind, they can restore most such programs.

According to eWeek, Yahoo Plays Favorites with Some Adware

The beta version of the spyware-fighting toolbar add-on, which Yahoo released last week, doesn't default to detect adware—a category of software in which Yahoo's paid search division has a financial stake.
Yahoo does not consider WhenU or Claria adware to be spyware. Techdirt reports that "Yahoo's spyware remover claims these programs are "adware" and will only remove them if you click and extra check box each time you run the program."

Adware developers differentiate their products from "spyware" based on the fact that adware requires "consent" before installation. For more about the level of consent, see Adware: Clickwrap Licenses and Informed Consent.

Some websites may trigger Internet Explorer to download and install a program with inadequate notice to the computer user. Eric L. Howes describes the details in The Anatomy of a Drive-By Download.

For example, Martin Schwimmer is a knowledgeable and alert computer user, who carefully reads the notices on his computer screen. Yet, Schwimmer still found WhenU inadvertently installed on his system.

In the spectrum of spyware and adware, WhenU's own software is relatively honest, albeit annoying to uninstall. WhenU also licenses its SaveNow software to other vendors, who are paid to distribute SaveNow (in order increase the number of viewers of its ads.) If WhenU licenses distribution of its software to providers who will bundle it with drive-by downloads, users may find WhenU installed on their computer without consent.

If WhenU fails to screen its bundling partners, and SaveNow can be installed without consent, perhaps anti-spyware tool vendors should consider WhenU to be spyware.

As an aside, after using Internet Explorer on Windows recently, I was struck by how different an experience is web browsing with Safari on a Mac or even Firefox on Windows. Even without adware installed, the IE user sees many more pop-up and pop-under ads. When using a computer infested with adware, ads are constantly popping up on screen, either from a web site or from adware.

Copyright Law Changes Rap

Public Enemy's Chuck D and Hank Shocklee discuss how copyright law affected the creative approach of rap: How Copyright Law Changed Hip Hop

Back in the day, things was different. The copyright laws didn't really extend into sampling until the hip-hop artists started getting sued. As a matter of fact, copyright didn't start catching up with us until Fear of a Black Planet. That's when the copyrights and everything started becoming stricter because you had a lot of groups doing it and people were taking whole songs. It got so widespread that the record companies started policing the releases before they got out.

E-Voting Roundup

NY Times: Who Tests Voting Machines?

Whenever questions are raised about the reliability of electronic voting machines, election officials have a ready response: independent testing. There is nothing to worry about, they insist, because the software has been painstakingly reviewed by independent testing authorities to make sure it is accurate and honest, and then certified by state election officials. But this process is riddled with problems, including conflicts of interest and a disturbing lack of transparency. Voters should demand reform, and they should also keep demanding, as a growing number of Americans are, a voter-verified paper record of their vote.

In the NY Times Magazine, Clive Thompson advocates an open-source e-voting solution: A Really Open Election

First off, the government should ditch the private-sector software makers. Then it should hire a crack team of programmers to write new code. Then -- and this is the crucial part -- it should put the source code online publicly, where anyone can critique or debug it. This honors the genius of the open-source movement. If you show something to a large enough group of critics, they'll notice (and find a way to remove) almost any possible flaw.

Chicago Tribune: Not all voting for new technology

Armed with reports from computer scientists and news accounts of problems involving touch-screen voting, nearly two dozen area residents turned out to lobby against the new technology. The [Portage County (Ohio) Board of Elections] voted 4-0 to put off the purchase.

Miami Herald: Secretary of state tries to calm voters

Amid controversy over touch-screen voting machines and a purge of felons from the voting rolls, Secretary of State Glenda Hood sought on Thursday to reassure anxious voters that 2004 won't be a rehash of the 2000 presidential debacle.

Howard Dean starts his syndicated column discussing e-voting: Electronic Voting – Not Ready For Prime Time

Without any accountability or transparency, even if these machines work, we cannot check whether they are in fact working reliably. The American public should not tolerate the use of paperless e-voting machines until at least the 2006 election, allowing time to prevent ongoing errors and failures with the technology. One way or another, every voter should be able to check that an accurate paper record has been made of their vote before it is recorded.

The Onion: Infograph: Electronic Voting Machines: "What are some of the machines's potential problems?"

Madonna reached an out of court settlement with Samuel Bourdin, the son of photographer Guy Bourdin, for a copyright infringement suit, which claimed that the Madonna "used the heart and soul of the artist's work and never credited him as the inspiration for the video." The Daily Telegraph: Madonna copied erotic ideas.

Previously: Madonna video infringes photographer's copyright?