October 2004 Archives

Engadget Interviews Seltzer

The Engadget Interview with Wendy Seltzer of the Electronic Frontier Foundation discusses the INDUCE Act and other issues related to gadgets and the law.

Fair Use on the offense

In Law.com, the EFF's Fred Von Lohmann discusses fair use and copyright misuse: Fair Use Goes on the Offensive

Thanks to the recent federal district court ruling in Online Policy Group v. Diebold, 2004 WL 2203382, 72 U.S.P.Q.2d 1200 (N.D. Cal. Sept. 30, 2004), however, the times they may be a-changin'. Fair users on the Internet can now go on the offensive to vindicate their free speech interests against overzealous copyright owners.

Previously: A Look at OPG v. Diebold

Footie photo lockout

The BBC reports that UK newspapers may be locked out of Premier League football matches if the league and publishers can not reach a deal on when the newspapers will post photos on the web. Lockout fear over football rights

The newspapers have been renegotiating a deal with the FA Premier League and Football League over access to matches.

The Newspaper Publishers' Association claims DataCo, for the leagues, wants a delay before photos go out on digital outlets, like newspaper websites.

Without a deal, papers fear they may be barred from all 92 grounds by Monday.

Band Name (tm)

The Globe and Mail looks at some trademark problems faced by bands: Would you consider Saskatchewan?


At Lessig blog, William Fisher discusses five criticisms of Alternative Compensation Systems

Spitzer takes on the record industry

NY Times: Record Labels Said to Be Next on Spitzer List for Scrutiny

According to several people involved, investigators in Mr. Spitzer's office have served subpoenas on the four major record corporations - the Universal Music Group, Sony BMG Music Entertainment, the EMI Group and the Warner Music Group - seeking copies of contracts, billing records and other information detailing their ties to independent middlemen who pitch new songs to radio programmers in New York State.

Bush and Kerry on Technology

CompTIA: Bush and Kerry on Technology

If this will make you reconsider you vote, perhaps you should consider the vast differences in style and substance between the two candidates and the type of administration that each would lead.

FTC P2P Workshop

In Legal Week, Nicholas Valner discusses the jurisdiction and choice of law issues involved in the Apple-Apple settlement and whether a contract may be made in two places at once: Upsetting the apple cart

In April 2003, Apple Computer launched a new web-site called iTunes. Apple Corps, The Beatles’ company, claimed this was in breach of an agreement made in 1991, and duly started an action in the High Court in England in August 2003. Apple Computer responded by challenging the jurisdiction of the English Court and in October 2003 launching its own case in California for a negative declaration that it was not in breach.

Previously: Apple to settle with Apple? and Apple takes Apple to court. Also, iTunes Takes Europe

In the Social Affairs Unit Weblog, economist Tyler Cower examines Why the music industry is suing you, your neighbour, or your child

Why has the music industry throughout Europe decided to sue hundreds of those sharing music files on the Internet? Tyler Cowen - Professor of Economics at George Mason University and author of Creative Destruction: How Globalization Is Changing the World's Cultures, What Price Fame?, and In Praise of Commercial Culture - argues here that it is not an attempt to scare off the downloaders, similar suits in the US have not stopped illegal file-sharing. Rather, Prof. Cowen argues, it is 'about spreading the idea that downloading is wrong and illegal... think of the lawsuits as one way to buy space in the newspaper, but without paying advertising rates.'

Is P2P dying?

Is P2P dying or just hiding?, authored by Thomas Karagiannis, Andre Broido, Nevil Brownlee, kc claffy and Michalis Faloutsos:

Recent reports in the popular media suggest a significant decrease in peer-to-peer (P2P) file-sharing traffic, attributed to the public's response to legal threats. Have we reached the end of the P2P revolution? In pursuit of legitimate data to verify this hypothesis, we embark on a more accurate measurement effort of P2P traffic at the link level. In contrast to previous efforts we introduce two novel elements in our methodology. First, we measure traffic of all known popular P2P protocols. Second, we go beyond the "known port" limitation by reverse engineering the protocols and identifying characteristic strings in the payload. We find that, if measured accurately, P2P traffic has never declined; indeed we have never seen the proportion of p2p traffic decrease over time (any change is an increase) in any of our data sources.

More E-Vote Issues

In Popular Science, Sorry, Your Vote Has Been: Lost, Hacked, Miscast, Recorded Twice

Ironically, it was the ambiguity of the old-fashioned paper trail that forced officials to put their trust in electronic machines. After the 2000 election hung literally by a chad, Congress passed the 2002 Help America Vote Act (HAVA). It included a $3.9-billion payout to improve the country’s voting infrastructure, with most of that aimed directly at converting those pesky punch-card devices into shiny new e-voting machines. The catch: States that wanted a piece of the pie would have to upgrade before 2006. Historically accustomed to a chronic lack of funding, state elections officials were eager to bring the voting process into the 21st century. “There was a mad rush to go to [e-voting machines] in the wake of HAVA,” says computer scientist Michael Shamos of Carnegie Mellon University. “But people didn’t know the machines. They didn’t have a clue.”

Ed Felten on Bad Protocol, Another Broken Diebold Protocol and Preemptive Blame-Shifting by the E-Voting Industry: "The November 2nd election hasn't even happened yet, and already the e-voting industry is making excuses for the election-day failures of their technology. That's right -- they're rebutting future reports of future failures."

American Detained Over VoIP in Belarus

In Belarus, an employee of the Soros Foundation Open Society Institute was detained for causing damage to the country's telecommunications providers and for "working as an entrepreneur without registration or permission. Interfax reports: U.S. citizen suspected of causing $100,000 damage in Belarus

U.S. citizen Ilya Mafter, who was detained in Belarus, is believed to have caused about $100,000 in damage to the country's communications providers, sources in the State Security Committee's information center told Interfax on Tuesday.

The damage to the communications providers? Possibly routing around them by using VoIP. Ethan Zuckerman: Arrest over VOIP in Belarus

I find myself wondering whether his alleged fraud of VELCOM (the national cellphone company) was his use of Skype to make phonecalls home, or to his office. Ilya is a Skype fan, and I can imagine how the twisted logic of the Belarusian KGB could turn demonstrating Skype to a Belarusian NGO into "damaging" the national infrastructure, by showing people how to avoid absurd call charges.

Late E-Vote Challenege in NJ

NY Times: New Jersey Lawsuit Challenges Electronic Voting

At its heart, the complaint... will ask the State Superior Court in Trenton to block the use of nearly 8,000 electronic voting machines, because they "cannot be relied upon to protect the fundamental right to vote."

No Access For You

LawMeme: Ninth Circuit Upholds Injunction Barring Access to a Website

Creative Computing, Inc. v. Getloaded.com pits two trucker-oriented websites against each other. Creative Computing's Truckstop.com is an online marketplace that helps truckers and shippers link up with each other. It was the first such and quickly became wildly popular. Getloaded.com, is, if Judge Kleinfeld's opinion is to be believed, a low-down rip-off, built on a systematic policy of fraud and dirty tricks. Getloaded hired away employees from Creative and had them bring source code and customer lists with them; it also hacked into Creative's servers (Creative was using an unpatched Microsoft system, tsk tsk) and also stole the password of a Creative customer in order to get a closer look at the site's functionality.

Creative Computing, Inc. v. Getloaded.com (9th Cir., Oct. 15, 2004.)

Pocket Parts

Robert J. Ambrogi: Selected IP blogs, which includes this little site here, well as the Induce Act Blog, and many other better-written blogs by more knowledgeable people.

(via Nipper by way of Heller)

Copyright cases, not bears

ASCAP in Radio Streaming Settlement

AP: Music Publishers Sign $1.7 Bln Deal on Web Radio

Music publishers and U.S. commercial radio station owners said on Monday they had agreed to a new $1.7 billion deal to cover licensing rights for music played over radio airwaves or via radio station Web sites.

McCain on IP Protection Act

Courtesy of Tech Law Advisor, Senator McCain on the Intellectual Property Protection Act:

From the text of the bills that have been available to date for Senators to review, I believe that one part of this broad legislation, the Family Movie Act, may actually harm consumers while appearing to help them.

Courtroom Technology

ACSBlog: The Gradual Digitalization of Our Courtrooms

Over the past couple of decades, computer technology has progressed from being the playthings of geeks to the necessities of neophytes. Despite this rapid-fire growth, our judiciary system has remained somewhat sheltered from the effects of the digital age. Courts around the country -- and indeed, around the world -- are slowly incorporating the technology into courtroom proceedings.

E-voting discussion

A SiliconValley.com roundtable discusses E-voting: Can we count on it?

The Supreme Court denied cert for the RIAA's appeal in RIAA v. Verizon.

EFF: "No "Fishing License" for the RIAA

This is very good news for a number of reasons. First, it affirms that using a peer-to-peer file-sharing program does not automatically strip you of your right to privacy or anonymity on the Internet. Second, it's an important check on the DMCA, which allows anyone simply claiming copyright infringement the ability to get your name, address, phone number, etc. Critical constitutional and privacy safeguards should not be removed wholesale on the mere assertion of wrongdoing.

CBS Marketwatch: Supreme Court refuses to hear Internet privacy case

This decision means copyright holders and their representatives -- or identity thieves and stalkers posing as copyright holders - will not be allowed to obtain personal information about Internet users by simply filing a one-page form with a court clerk," said Sarah Deutsch, Verizon's associate general counsel, in a statement.

Washington Post: Supreme Court Internet Privacy Decision: Chat with Verizon attorney Sarah Deutsch.

Spectrum Free-for-all

The New Yorker discusses the giveaway of spectrum to television broadcasters for the transition to DTV: Free Air

In the late nineties, Washington policymaker took up a noble cause. There was a ne technology, digital television, that almos everyone agreed would eventuall revolutionize TV, but quelle horreur—almost no one was adopting it. Among other things, local TV stations couldn’t transmit digital signals on their existing analog channels. They needed digital spectrum. (If you think of the electromagnetic spectrum as a highway, digital and analog signals travel in different lanes.) So Congress decided to give the stations a leg up—or, rather, a handout. Instead of auctioning off the digital spectrum (which might have brought in new competitors, not to mention money), or simply asking broadcasters to pay for it (it was worth, conservatively, tens of billions of dollars), Congress offered it to them free. It was, as Reed Hundt, who was the F.C.C. chairman, said at the time, “the largest single grant of public property to . . . the private sector in this century.” Senator John McCain was a little more blunt. He called it “one of the great rip-offs in American history.”

The Feature: How The Plan To Reclaim Spectrum Got Waylaid

In an effort to push US broadcasters to move to digital television broadcasts rather than current analog broadcasts, the US government gave broadcasters a huge swath of spectrum to use for that purpose. This followed a well fought battle over whether or not the broadcasters should be given spectrum for free -- when it could clearly have been auctioned off. The "compromise" agreement was that the spectrum was actually being "loaned" to broadcasters to help make their transition to digital TV easier. After that was done, they would return their unused spectrum. The plan was for all of this to happen by the end of 2006. However, the broadcasters received an important loophole: the handover would only occur if 85% of the viewers in their area had equipment to view digital TV.

Previously: I Want My DTV

FTC cracks down on spyware

The FTC filed a suit against spyware distributors Seismic Entertainment Productions, SmartBot.net and Sanford Wallace.

The Complaint requests injunctive and equitable relief. The unfair practices include "Unfairly Changing Consumers’ Web Browsers," "Unfairly Installing Advertising and Other Software Programs," and "Unfairly Compelling Purchase of “Anti-Spyware” Software"

Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order with Expedited Discovery, Preservation of Documents and Order to Show Cause Why a Preliminary Injunction Should Not Issue Against Defendants.

FTC Cracks down On Spyware Operation

The Federal Trade Commission has asked a U.S. District Court to shut down a spyware operation that hijacks computers, secretly changes their settings, barrages them with pop-up ads, and installs adware and other software programs that spy on consumers' Web surfing. The spyware may cause computers to malfunction, slow down, or even crash. The FTC alleges the spyware operation violates federal law and will ask the court to bar the practices permanently and order the defendants to give up their ill-gotten gains.

NY Times reports: F.T.C. Files First Lawsuit Against Spyware Concerns

DoJ Looks to Fight IP Piracy

Attorney General John Ashcroft Announces Recommendations of the Justice Department's Intellectual Property Task Force

Intellectual property theft is a clear danger to our economy and the health, safety, and security of the American people,” said Attorney General Ashcroft. “The enforcement of our intellectual property laws is among the highest priorities of the Justice Department, and I created the Intellectual Property Task Force to explore ways for us to strengthen our protection of the nation’s valuable intellectual resources. With the recommendations put forward by the Task Force, the Department is prepared to build the strongest, most aggressive legal assault against intellectual property crime in our nation’s history.”

Justice Department: Report of the Intellectual Property Task Force

News.com: Justice Dept. wants new antipiracy powers

Phil Corwin, a lobbyist for Sharman Networks, distributor of the popular Kazaa file-sharing software, said the Justice Department seems "to be endorsing a war on copyright infringement modeled in large part on the war on drugs. That should invite very close scrutiny of the recommendations."

Defending a lawsuit is good publicity

jibjab_spike.png I happened to look at the traffic stats for this site and was surprised to see that traffic on Friday was about seven times greater than normal:

Apparently, a LOT of people were searching for JibJab, who released a new animated short last week. (For what it's worth, the short is cute, but it's no Fafblog.)

JibJab's previous animation led to a copyright lawsuit and much discussion about parody and satire in copyright law. See:

Seeking Cert in Grokster

MGM and its co-plaintiffs seek to overturn the Ninth Circuit's ruling in Grokster and filed a petition for a writ of certiorari with the Supreme Court.

Question Presented:
Whether the Ninth Circuit erred in concluding, contrary to long-established principles of secondary liability in copyright law (and in acknowledged conflict with the Seventh Circuit), that the Internet-based “file sharing” services Grokster and StreamCast should be immunized from copyright liability for the millions of daily acts of copyright infringement that occur on their services and that constitute at least 90% of the total use of the services.

Public Knowledge: Statement on MPAA Petition to Supreme Court: "“There is no reason the Supreme Court should review the Grokster decision. That case was based on the principles established in the 1984 Betamax case, which has lead to the largest and most profitable period of technological innovation in this country’s history. Consumers, industry and our country have all benefited as a result."

EFF attorney Fred von Lohmann: Big Media Attacks Betamax in Court: "First, the entertainment industry is plainly mounting a frontal attack on the Betamax doctrine, seeking a radical rewrite of secondary liability principles.... Second, the entertainment industry appears to think that it can treat the Supreme Court and Congress interchangeably in pushing for its preferred re-write of copyright law."

Previously: Ninth Circuit Affirms Grokster Ruling

The IFPI and BPI join the RIAA and sue indivdual file sharers: Record industry steps up action against illegal music file-sharing and urges people to buy legally online

The music industry today announced a major escalation of its campaign against illegal file-sharing, unveiling 459 legal actions against music "uploaders" and for the first time targeting Europe's two largest music markets, the UK and France.

Announcing the actions on behalf of the recording industry worldwide, IFPI warned that the rolling campaign will be further stepped up and extended into new countries in the coming months. It called on music fans to buy their music online legitimately, rather than risk the legal consequences of illegal file-sharing. There are now over 100 legal online music sites in Europe offering a total of over one million music tracks.

Upcoming Events

Friday, October 8:
Intellectual Property Online: The Challenge of Multi-Territorial Disputes:
A Symposium co-sponsored by the Center of the Study of International Business Law and the Brooklyn Journal of International Law at Brooklyn Law School.

Thursday, October 28:
Recalibrating the Scales: When Does Intellectual Property Regulation Cease to Advance Creativity and Begin to Suppress Innovation?
Presented by the Fordham Intellectual Property, Media and Entertainment Law Journal at (unsuprisingly) Fordham.

Thursday-Friday, October 14-15:
CMJ Music Marathon
Panels of interest include:
Al Franken keynote address, Thu. 10:00 am
The Ever-Evolving Record Contract, Thu. 2:00 pm
Washington Wrap-Up: What the New Policy Initiatives Mean For You, Thu. 3:30 pm
Copyright V. Copyleft: The War Continues, Fri. 11:00 am
Bumps On the Road to Satellite Radio's Takeover, Fri. 2:00 pm
So, You Want to Be a Music Lawyer? Fri. 2:00 pm

In my country, there is e-voting

LawMeme reports that Kazakhstan held a successful e-vote.

In its parliamentary elections, Kazakhstan adopted e-voting in 10% of its polling stations. International observers from the OSCE noted some drawbacks to the e-voting system: Statement of Preliminary Findings and Conclusions

The State Commission responsible by law for making the decision to establish e-voting was not formed until five days before election day. As a result, the scope of e-voting was not decided until 17 September, and some PECs appeared poorly prepared. According to the CEC decision, electronic voting was to be used in 961 of 9,480 polling stations.

The e-voting system was not openly and independently certified, which would have promoted confidence in the system by domestic stakeholders. A review was carried out by a group composed of experts invited by CEC and experts nominated by some political parties, but the IEOM expert was not allowed to observe on grounds of confidentiality. The group concluded that "hacking into the system and falsifying the election results were ruled out," although one political party representative declined to sign the report. This group of experts did not publish detailed technical arguments for these conclusions.

The system does not include a manual audit capacity, and therefore there is no possibility for a recount. The system does generate, if requested by the voter directly after voting, a private PIN code not linked to the voter which could be used to check the final control protocols, thus providing the voter with the possibility to confirm that his or her vote was recorded correctly. However, that same PIN code, if provided by the voter to a party, candidate, or employer, would demonstrate how he or she voted. This opens the potential for violation of the secrecy of the vote as well as intimidation.

Protection against manipulation from outside or incidental technical malfunction appeared sufficient. The system generated redundant, periodic local backups, and all data transmission sent through communication lines was encrypted. However, the system uses normal telephone connections between polling stations and Regional Election Commissions, and these are potentially vulnerable to unauthorized monitoring or to distortion of transmitted information.

See also: In my country, there is treaty.

Om Malik on Broadband: The Voice over IP Insurrection

The VoIP insurrection over the last decade marks a milestone in communication history no less dramatic than the arrival of the telephone in 1876. We know data networks and packetized voice will displace the long standing pre-1995 world rooted in Alexander Graham Bell's invention. It remains uncertain whether telecom's incumbent carriers and equipment makers will continue to dominate or even survive as the information technology industry absorbs voice as a simple application of the Internet.

First Circuit grants rehearing en banc in United States v. Councilman.

CDT, EFF, EPIC and ALA submitted an amicus brief authored by Orin Kerr and Peter Swire.

(via How Appealing)

Canada Copyright at a Crossroads

In First Monday, Laura J. Murray discusses whether Canada will serve its own interests by ratifying the WIPO World Copyright Treaty and the World Performances and Phonograms Treaty: Protecting ourselves to death

Canada is at a critical stage in the development of its copyright law: it has not yet ratified the 1996 World Intellectual Property Organization "Internet Treaties," but it is poised to do so. This article analyses the rhetoric of "protection" ubiquitous in Canadian discussions of copyright policy, and identifies among the various uses of the term both a problematic assumption that protection is or should be the primary function of copyright, and overblown claims about copyright’s power to protect Canadian culture and creators. These "common sense" ideas, fostered by rights–holder lobbies, emerge out of a peculiar Canadian history of cultural nationalism(s), but they may not promote the interests of Canadians. Ironically, while professing fear for their cultural sovereignty, and following the paths of their own internal political, bureaucratic, and rhetorical culture, Canadians appear to be constructing a copyright policy in complete harmony with the needs of American and international capital.

Trademark Fair Use Goes to the Supremes

LawMeme: A Case to Watch: KP Permanent Make-Up, Inc. v. Lasting Impression, Inc.

The Supreme Court will hear oral arguments on Tuesday in KP Permanent Make-Up, Inc. v. Lasting Impression, Inc., et al. a case that could significantly affect the scope of fair use defenses in trademark infringement lawsuits.

Oyez: KP Permanent Make-Up, Inc. v. Lasting Impression, Inc.

KP Permanent Make-Up, Inc. v. Lasting Impression, Inc. (9th Cir., Apr. 30, 2003)

Piracy Crackdown

Reuters: U.S. to crackdown on intellectual piracy

The new initiative will be called Strategy Targeting Organized Piracy, or Stop, for short. It will be comprised of a number of legal and administrative changes to be made in coming months.

Contract, Copyright and Online Gaming

In Davidson & Assoc. v. Internet Gateway, a court rules that reverse engineering software to host multiplayer online games violates the DMCA and contractual prohibitions in an end-user license agreement (EULA.)

Ernest Miller calls this decision "clear evidence of a judge who doesn't get it" and explains in further detail: Major DMCA/EULA Loss - District Court Clueless in BNETD Case

The basic facts are that a group of open source developers reverse engineered Blizzard's "battle.net" so that people could run their own servers to host multiplayer versions of Blizzard games, such as Diablo and Starcraft. The reason was that Blizzard's servers had many problems and didn't allow people to organize games the way they desired. Of course, such a project threatened the executives at Blizzard and so they sued with many different copyright, trademark, contract and DMCA claims. After many procedural issues, the EULA and DMCA claims were all that was left.

This case follows the reasoning of Bowers v. Baystate Technology, which upheld a clickwrap contract prohibiting reverse engineering. Bowers is one of the most reviled recent opinions in software law, and that is saying something. Basically, this decision, like Bowers, holds that clickwrap contracts against reverse engineering are binding. It is hard to believe that this bit of ridiculousness continues to be upheld by judges.

Seth Finkelstein: Blizzard v. BNETD (Davidson v. Internet Gateway) Fair Use/DMCA horrors: "In sum, it's a horror on every item, and rules solidly against programmer's interests."

Discussion at Freedom to Tinker: DMCA Ruling in BNETD Case

OPG v. Diebold

Diebold, the controversial developer of direct-recording electronic voting systems, sent takedown notices to ISPs who hosted copies of a series of leaked internal memos documenting various flaws in the company's e-voting systems. Non-profit ISP Online Policy Group (OPG) and two Swarthmore students sued Diebold. A Federal District Court judge ruled in favor of the ISP and students while granting summary judgment on the claim that Diebold violated 512(f) of the Digital Millennium Copyright Act (DMCA) by sending takedown notices while knowing that infringement has not actually occured. Online Policy Group v. Diebold, Inc..

Plaintiffs Smith, Pavlosky, and OPG ... seek injunctive, declaratory, and monetary relief from this Court, alleging that Diebold’s claim of copyright infringement was based on knowing material misrepresentation and that Diebold interfered with Plaintiffs’ contractual relations with their respective ISPs. Plaintiffs seek a judicial declaration that publication of the email archive, hosting or providing colocation services to websites that link to allegedly infringing material, and providing internet services to others who host websites that link to allegedly infringing material are lawful activities. They request an injunction to prevent Defendants from threatening or bringing any lawsuit for copyright infringement with respect to the email archive arising from the publication, linking, or hosting services described in the complaint and a judgment barring Defendants from enforcing any copyright in the email archive unless and until Defendants’ alleged copyright misuse has ceased.

Because Diebold has "withdrawn and in the future will not send a cease and desist letter pursuant to the DMCA to any ISP concerning the email archive," the plaintiffs' claims for an injunction and declaratory relief are moot.

However, the court finds that Diebold misrepresented its claims of copyright infringement when sending the §512(f) notices to ISPs.

Publication is Fair Use

The court finds the publication of some of the contents in the email archive is lawful as fair use:
The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold’s electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold’s machines in fact do tabulate voters’ preferences incorrectly, the very legitimacy of elections would be suspect. Moreover, Diebold has identified no specific commercial purpose or interest affected by publication of the email archive, and there is no evidence that such publication actually had or may have any affect on the putative market value, if any, of Diebold’s allegedly copyrighted material.

Plaintiffs’ and IndyMedia’s use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology. Accordingly, there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection.

§512(f) Standard

Plaintiffs suggest that a 512(f) action should require a "likelihood of success" standard of proof similar to the summary judgment standard while defendants sought a standard similar to Rule 11's "frivolous." The court rejects both of these approaches:
A requirement that a party have an objectively measured “likelihood of success on the merits” in order to assert claims of copyright infringement would impermissibly chill the rights of copyright owners. At the same time, in requiring a showing of “knowing material misrepresentation,” Congress explicitly adopted a standard different from that embodied in Rule 11, which contains a variety of other requirements that are not necessarily coextensive with those set forth in section 12(f). The Court concludes that the statutory language is sufficiently clear on its face and does not require importation of standards from other legal contexts. A party is liable if it “knowingly” and “materially” misrepresents that copyright infringement has occurred. “Knowingly” means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.

Tortious Interference with Contractual Relations

The court agrees with Diebold that the DMCA, as federal law, preempts the state law claim of tortious inteference with contractual relations.
Even if a copyright holder does not intend to cause anything other than the removal of allegedly infringing material, compliance with the DMCA’s procedures nonetheless may result in disruption of a contractual relationship: by sending a letter, the copyright holder can effectuate the disruption of ISP service to clients. If adherence to the DMCA’s provisions simultaneously subjects the copyright holder to state tort law liability, there is an irreconcilable conflict between state and federal law.


EFF: EFF Wins in Diebold Copyright Abuse Case: "In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured."

Wendy Seltzer (EFF): Free Speech Vindicated in OPG v. Diebold: "Along with opening up the e-voting archives, I hope this decision will give new strength and new weapons to other online speakers and ISPs against the chill of aggressive, improper copyright claims."

Jason Schultz (EFF): EFF wins Diebold DMCA case: "Bottom line: If you misuse DMCA take down notices, you can be liable for damages under section 512(f). How liable? That's up next when we file our supplemental briefs. Copyright abusers beware!"

Joe Gratz: Victory in Diebold: "This is the first opinion I can think of that has found that a copyright holder “knowingly materially misrepresented” that a copyright was infringed when there was, in fact, copying of a copyrighted work, but the copying was obviously fair use. This requires copyright holders, for the first time, to go through some kind of low-level rational fair use analysis before sending a DMCA takedown notification."

Free Culture: We won the Diebold case! "I definitely picked the wrong time to take a nap today."

Wired News: Diebold Loses Key Copyright Case: "Students who sued Diebold Election Systems won their case against the voting machine maker on Thursday after a judge ruled that the company had misused the Digital Millennium Copyright Act and ordered the company to pay damages and fees. Lawyers for the students call the move a victory for free speech." 

John Palfrey: Electronic voting and copyright?: "Most everyone who lived through the presidential election of 2000 would agree that it's important to have public discussion about the integrity of voting systems in America. Most everyone, except Diebold. And Diebold sold electronic voting machines to at least 37 U.S. states in the last four years."

The Open Net Initiative: A Starting Point: Legal Implications of Internet Filtering

Different governments offer a range of justifications for Internet filtering, including national security and the protection of community standards. While filtering regimes have a tremendous effect on issues such as civil liberties, international jurisdictional matters, and Internet governance, there are few established mechanisms for review and reform of Internet censorship. The paper highlights the importance of transparency, accountability, and inclusiveness in order to maintain a reliable, efficient, and global medium for communication.

E-Voting in India and the US

Here in the US, News.com reports: Computer scientists slam e-voting machines: "the Association for Computing Machinery said that 'voting systems should enable each voter to inspect a physical record to verify that his or her vote has been accurately cast and to serve as an independent check on the result produced and stored by the system.'"

In India, electronic voting may be both cheaper and more secure. Slate: The Bombay Ballot:

It's not much of a computer at all, more like a souped-up adding machine. A column of buttons runs down one side. Next to each button is the name and symbol of a candidate or party. These are written on slips of paper that can be rearranged. That means unscrupulous politicians couldn't rig the machines at the factory, since they wouldn't know which button would be assigned to which candidate. Also, the software is embedded—or hard-wired—onto a microprocessor that cannot be reprogrammed. If someone tries to pry open the machine, it automatically shuts down. After much testing, India adopted the machines for nationwide use this year.

Where's My Clickwrap Decoder Ring?

In Wired Magazine, Mark D. Rasch thinks that You Need a Robolawyer:

Unfortunately, the law assumes we all do - and that by clicking, we are "agreeing" to the unread privacy policy, to spyware being installed on our systems, or to pornographic pop-up ads. Almost every site has terms and conditions; as a result, regular Internet users are faced with dozens of such agreements a week. Some come in the form of the ubiquitous "I Agree" button, others in the form of prose hidden at the bottom of the homepage under the moniker "Legal."

What is needed - desperately - is a law robot. A browser-based automaton that could be adjusted to match your tolerance for legal mumbo jumbo.

Perhaps software developers should be required to include clear and concise disclosure about whether their software will pop-up ads, or collect and transmit personal or clickstream data across the internet.

Suing Your Customers: Good Idea?

In Law.com, Fred von Lohmann asks: Is Suing Your Customers a Good Idea?

As a matter of win-loss percentages, the lawsuit campaign has been wildly successful. Record industry lawyers have found that the defendants tend not to defend the suits at all, opting instead to settle for amounts ranging between $3,000 and $11,000. Many other defendants default. After all, hiring counsel to defend costs more than settling, even setting aside the hassles of litigation and chances of losing. Reliable sources tell me that the recording industry is breaking even on the litigation costs, as well, with settlements from each round of suits paying the costs of the next.

Talking 'Heads

David Weinberger blogged the Bellhead-Nethead Conference at Cardozo earlier this week:

  • Bob Pepper, Chief of Poilicy Development at the FCC
  • Bruce Mehlman, Internet Innovation Alliance
  • Justification for Regulation, with Rebecca Arbogast, LeggMason; Daniel Benoliel, UC Berkeley, Law; Harold Feld, Media Access Project; James Gattuso, Heritage Foundation; Russell Hanser, FCC (speaking for himself and off the record [Blog off]); David Isenberg, isen.com; Eli Noam, Columbia U. economics; Christopher Savage, Cole, Raywid & Braverman
  • Ancillary Jurisdiction with Robert Blau, BellSouth; Jeffrey Carlisle, chief of Wireline Competition Bureau of FCC; Bill Hunt, Level 3; James Lewis, MCI; Randolph May, Progress & Freedom Foundation; Gigi Sohn, Public Knowledge; James Speta, Northwestern U., Law
  • Journalist Dan Gillmor
  • Universal service with Robert Frieden, Penn State, College of Communications; Jonathan Askin, Pulver.com; Jonathan Weinberg, Wayne State, Law; Kevin Werbach, Wharton School; Brad Ramsay, Nat'l Assoc. of Regulatory Utilities Comissioners; Matthew Brill, FCC
  • John Rogovin, FCC, discusses CALEA
  • Stewart Baker on CALEA
  • CALEA Panel with John Morris, Center for Democacy and Technology; Mike Godwin, Public Knowledge; Geraldine Matise, FCC; Christopher Murray, Vonage; John Morris; Douglas McCollum, Fiducianet; Timothy Wu, Columbia Law School; David Young, Verizon;

Conference reflections from organizer Susan Crawford, Assistant Professor of Law at Cardozo: "The big picture is the real news right now.  Big government wants to be in charge of the internet, and we have the opportunity to resist on a national level."

Related: News.com interview with FCC Policy Development Chief Robert Pepper: The technologist who has Michael Powell's ear

Daniel Solove: Reconstructing Electronic Surveillance Law, George Washington Law Review, Vol. 72, 2004.

The USA-Patriot Act made a number of changes in electronic surveillance law, but the most fundamental problems with the law did not begin with the USA-Patriot Act. In this article, Professor Solove argues that electronic surveillance law suffers from significant problems that predate the USA-Patriot Act. The USA-Patriot Act indeed worsened some of these problems, but surveillance law had lost its way long before. Surveillance law is thus in need of a radical reconstruction.