February 2005 Archives

Open Source Patent Policy

At ACS Blog, Sean Kellogg writes about The Open Source Approach to Patent Policy: "The past months have witnessed amazing developments in the area of software patents. First IBM, and then Sun Microsystems, announced they were granting the rights to more than 2000 patents to open source developers for use in software development. The announcement comes at a critical moment in Free/Open Source Software (FOSS) history, with some companies in active litigation over the Linux operating system and others issuing veiled threats."

Spectrum Wars

In the National Journal, Drew Clark writes about the long-delayed transition to digital television and the broadcasters hold on extra spectrum: Spectrum Wars

The spectrum is far more lucrative today than anyone dreamed possible back in 1927, when the federal government began regulating use of the spectrum by handing out licenses to radio broadcasters to transmit their signals. And because of the airwaves' immense value, the battle for control of the frequencies that make up the spectrum has been a premier influence-peddling bonanza in Washington.

State support for information access

To what extent should the state be subsidizing information flow and data accessibility? Some measure of state support for access to information may not only appropriate in the information economy, but likely to create public benefits and encourage innovation and economic development.

In his Wired magazine column, Lawrence Lessig discusses WWhy Your Broadband Sucks, noting that a Pennsylvania statute to prevent the state from competing with private telecommunications and broadband providers will increase prices. Leaving wireless broadband development to the private sector may stifle the development of businesses that make use of wireless access.

In the Financial Times, James Boyle notes that allowing public access to government-produced data at nominal cost has led to innovation, while charging to recoup the costs of producing that data stifles innovation: Public information wants to be free: "On one side of the Atlantic, state produced data flows are frequently viewed as potential revenue sources. They are copyrighted or protected by database rights. The departments which produce the data often attempt to make a profit from user-fees, or at least recover their entire operating costs... The other side of the Atlantic practices a benign form of information socialism. By law, any text produced by the central government is free from copyright and passes immediately into the public domain."

The government can support businesses in the information economy by offering the lowest-cost access to communications networks and data whenever possible. In many cases, this may justify a certain amount of state subsidy.

Anonymity on the 'net

At Law.com, Fred von Lohmann discusses the potential demise of anonymity online: Publius, RIP?: "On the Internet, your ISP knows you're not a dog, and your adversary is only a subpoena away from compromising your constitutionally-protected right to bark anonymously."

Dendrite International v. Doe, 775 A.2d 756 (N.J. App. 2001), offers one approach for evaluating whether a court should require an ISP to disclose an anonymous poster's identity. The plaintiff must notify the anonymous posters and allow the anonymous poster a reasonable opportunity to file and serve opposition. The plaintiff must identify and set for the exact statements purpotedly made by each anonymous poster. The court then shall review the application to see whether the plaintiff has established prima facie cause of action against the fictitiously-named anonymous defendants. Finally, the court must balance "the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."

In a Sept. 2001 NY Law Journal article, Richard Raysman and Peter Brown discuss Discovering the Identity of Anonymous Internet Posters.

More MPAA file sharing suits

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Reuters reports: Hollywood Studios File New Round of Web Lawsuits: "The civil suits against unnamed "John Doe" defendants seek up to $150,000 per downloaded digital file and come as the U.S. film industry prepares for its annual Oscar telecast in Hollywood where awards for top films and stars are given out."

Stern and the Satellite Wars

In Wired magazine: Howard Stern and the Satellite Wars: "By taking his case to 12 million listeners every week, Stern is turning locker-room humor into a constitutional cause. He's using his show as a platform to prick (as it were) the FCC's veil of authority. Thanks to his particular talent for connecting, for making each listener feel talked to instead of at, Stern is transforming an abstract fight about rights and values into one about the guy next door, or at least the guy down the dial."

Mediaweek reports on a survey of whether fans will follow Stern to satellite: Stern Fans Undecided On Sirius Switch: "The survey found that 22 percent planned on subscribing to Sirius to continue to hear Stern, 41 percent were undecided and 37 percent said they wouldn't subscribe."

The value of disclosure requirements

Bruce Schneier notes that only a California information privacy statute forced Choicepoint to disclose the fact that it shared consumers' personal information with a group of criminals. Schneier on Security: ChoicePoint

This story would have never been made public if it were not for SB 1386, a California law requiring companies to notify California residents if any of a specific set of personal information is leaked.

ChoicePoint's behavior is a textbook example of how to be a bad corporate citizen. The information leakage occurred in October, and it didn't tell any victims until February. First, ChoicePoint notified 30,000 Californians and said that it would not notify anyone who lived outside California (since the law didn't require it). Finally, after public outcry, it announced that it would notify everyone affected.

Wired News reports on a lawsuit filed against ChoicePoint: California Woman Sues ChoicePoint : "According to the filing, Goldberg seeks to hold ChoicePoint responsible for negligence in protecting the private data of consumers from scam artists who purchased it from the company. The scam continued for a year before ChoicePoint discovered what the thieves were up to."

Orange, tm

The NY Times reports on a dispute over orange branding for mobile phone service: In a British Mobile Phone Suit, the Color of Money Is Orange: "[Mobile phone company] Orange said yesterday evening that it would sue easyMobile, a wireless start-up founded by the entrepreneur Stelios Haji-Ioannou, who also founded the easyJet discount airline. Orange wants to keep easyMobile from ever using its signature color in advertisements."

Here in the US, "the Lanham Act permits the registration of a trademark that consists, purely and simply, of a color." Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995).

Digital Music Crisis

At the the Winter 2005 Meeting of the Distributed Computing Industry Association during Media Summit New York, Bennett Lincoff discussed The Cause and a Possible Solution for the Crisis That Grips the Digital Music Marketplace:

The crisis that grips the digital music marketplace is the making of the music industry itself. It results from the industry%u2019s failure to respond constructively to the changed circumstances imposed on it by the Internet.

I would like to suggest a possible solution to this crisis: One that simultaneously: Protects the integrity of copyrights; promotes technological innovation; facilitates the growth of all manner of digital audio services (including P2P); and meets consumer demand.

(Via Pho.)

Indecency Miscellany

The U.S. House of Representatives passed the
Broadcast Decency Enforcement Act of 2005 (H.R.310) which will raise the fine for each violation of broadcast indecency regulations to $500,000.

The LA Times reports that broadcasters are expected to test the current indecency regulations in court: Test of Decency Rules Likely: "Seeking to force federal regulators to more clearly define indecency violations, broadcasters are expected to bring a legal test case as early as next month, according to industry officials."

Broadcasting, flagged

Today, the D.C. Circuit held oral arguments in ALA v. FCC, the court challenge to the FCC Broadcast Flag requirement. Briefly, the broadcast flag is a technoligical mandate that would require all hardware capable of receiving a DTV signal, including general purpose computers, to include circuitry that would prevent the redistribution of any digital broadcast flagged as protected.

Susan Crawford argues that the broadcast flag case is just as important as Grokster: "Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry -- law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating."

The ALA brief offers three challenges to the regulations:

  • The FCC lacks authority to regulate the design of television receivers and therefore lacks the authority to impose a broadcast flag requirement, goes beyond Congressional intentions to limit the Commission's authority over television design.
  • The Braodcast Flag regime impermissibly conflicts with Copyright law
  • The standards the FCC used to determine that the broadcast flag would solve a problem was arbitrary and capricious.

GWU 2L blogger LuminousVoid attended today's oral arguments and provides a report of the proceedings.

Declan McCullagh reports on the arguments for News.com Court questions FCC's broadcast flag rules: "Two of the three judges on the District of Columbia Circuit panel said the FCC never received permission from Congress to undertake such a sweeping regulation, which is intended to encourage the purchase of digital TV receivers that curb Internet distribution of over-the-air broadcasts of programming such as movies and sports."

The NY Times previewed the oral arguments and discussed one potential effect of the case: Federal Effort to Head Off TV Piracy Is Challenged: "If content creators refuse to provide digital programming because of piracy concerns, consumer demand for digital television will be low, which means a slower transition to all-digital broadcasts. And that, in turn, would mean no revenue for the government from spectrum auctions."

Ed Felten replies: "P2P infringement gives broadcasters a powerful incentive to offer higher-quality, higher-resolution content. High-res content makes legitimate broadcast service more attractive to viewers. P2P versions can't match these increases in resolution because doing so would make P2P files much bigger, clogging P2P systems with enormous files and making downloads much slower. If broadcasters have to "compete against free" their best hope is to actually compete, by improving their product -- especially when the competitor can't match the improvement." Broadcast Flag in Court.

HDNet's Mark Cuban urges the FCC to call the broadcasters' bluff and find out whether or not the broadcast licensees can broadcast HD content without a broadcast flag: "We dont need the broacast flag. It accomplishes absolutely nothing other than to set a precedent that the content industry can intimidate the FCC…."

The AP reports on Congressional efforts to speed up the transition to DTV: House Looks at Ways to Speed Digital TV

The December 2006 date isn't a hard deadline; according to law it could be pushed back until 85 percent of homes in a market can get digital TV. Nationally, only 12 percent of homes have digital sets, according to the Consumer Electronics Association.

Two leading House Energy and Commerce Committee members - Reps. Joe Barton, R-Texas, the chairman, and Fred Upton, R-Mich., said they might introduce legislation that would eliminate the 85 percent provision in order to speed the transition.

During the last Congress, Sen. McCain introduced a bill in the Senate to speed the transition to DTV.

Popping up less

Pop-up purveyor Claria is attempting to recast its image and move away from the pop-up game. Currently, Claria's GAIN software monitors the behavior of internet users who have installed the software, either intentionally or inadvertently and uses that clickstream data to trigger pop-up ads in the GAIN application that appear over or under third party websites. Web publishers are, not surprisingly, less than enamored of the practice, and a number have sued Claria (formerly called Gator.com) claiming violations of copyright, trademark and unfair competition laws. Claria has settled most of these cases, though two are still pending.

Today in the NY Times, Bob Tedeschi reports that Claria is introducing a new service that should give the company a better relationship with online publishers: Pop-Up Company Tries a New Path

The service, called BehaviorLink, will operate much like Claria's existing approach in that it will track the surfing patterns of some 40 million Internet users who downloaded free music-sharing software from Kazaa or other free programs like weather-tracking software from Claria.

But under the new program, Claria will use this information to buy ads on publisher sites, rather than use pop-ups.

Claria will likely enjoy better relationships with online publishers and probably lose its status as a magnet for litigation. However, individual internet users who are concerned about online privacy should be wary of this program. Currently, people who have GAIN installed on their computers are made aware of that by the number of pop-up ads which annoy them while surfing the web. With BehaviorLink, internet users who have GAIN installed on their system may have less notice that their online behavior is being monitored (as part of a measure of aggregate online behavior-- Claria claims to not track individually identifiable information.) Because many users are not aware they installed GAIN, either because they do not read the 5900-word license agreement or because a third-party installs it as part of a "drive-by download," many may have their online behavior watched without their knowledge.

Because Claria now is less likely to be target for lawsuits by online publishers as it becomes an ad broker rather than a pop-up purveyor, only legislation is likely to force the company to engage in better disclosure.

The SPY Act ,introduced in the House this session as HR 29, would require notice and consent prior to installation of software than transmits clickstream data in order to "deliver advertising to, or display advertising on, the computer." The notice must notify users about such practices by using the statement: "This program will collect information about Web pages you access and will use information to display advertising on your computer. Do you accept?"

If adware stops delivering pop-up ads, a clear notice and consent requirement may be the most efficient way for internet users to learn that their net activity is being watched. See Clickwrap Licenses and Informed Consent for a more detailed examination of the need for informed consent in adware installation procedures.

Popping out

In Gator.com v. L.L. Bean, an en banc panel of the 9th Circuit declined to rule on whether a California court can have jurisdiction over an internet and mail-order retailer based in Maine. Gator.com (now Claria) sued for a declaratory injunction that its practices of selling pop-up ads in its adware designed to pop-up over the L.L. Bean website does not violate trademark, copyright and unfair competition law. L.L. Bean moved to dismiss for lack of personal jurisdiction. Gator.com and L.L. Bean settled the trademark, copyright and unfair competition claims, with Gator.com to pay an extra $10,000 if the court ruled against finding personal jurisdiction over L.L. Bean in California. The court found that the dispute was moot and declined to rule on the jurisdictional issue.

Law.com: 9th Circuit: $10K 'Bet' Can't Settle E-Retailer Fight: "In an 8-3 decision Tuesday, judges decided the issue was moot because the parties, Maine-based L.L. Bean Inc. and Gator.com Corp. of Redwood City, Calif., settled after last summer's oral argument. Gator.com agreed to pay L.L. Bean, but the amount remained under seal at the 9th Circuit."

InternetCases.com

InternetCases.com is a new blog focusing on, not surprisingly, cases in internet law.

(Via TechLaw Advisor.)

Bullies Reviewed

In Brand Name Bullies: The Quest to Own and Control Culture, David Bollier examines the effect of commercial copyright interests on culture.

J.D. Lasica reviews the book at DarkNet: ‘Brand Name Bullies’ review: "In Brand Name Bullies: The Quest to Own and Control Culture (Wiley & Sons), released this month, the author of Silent Theft: The Private Plunder of Our Common Wealth is back with a painfully comic look at how big corporations are bullying the little guy and locking down culture with the backing of one-sided copyright and trademark laws."

Amit Asaravala offers a more critical review in Wired News: Are Bullies After Our Culture?

As the title suggests, the book is an intense critique of the U.S. copyright and trademark system and the corporations that use it as a weapon against competitors and anyone else who might threaten them. Bollier argues that the court's willingness to let corporations get away with such bullying is increasingly eroding our "cultural commons" -- the collection of images, stories, sounds and other creative expressions that, due to their significance and prevalence, no longer belong to any single person or company...

At 253 pages -- not counting the 55 pages of additional notes and indexes in the back -- Bullies provides more than enough case studies like these to convince you that copyright and trademark laws don't always serve the public. However, the book has one big flaw: It doesn't quite manage to prove Bollier's assertion that these laws, or the abuse of them, are greatly threatening our culture.

Hilden previews Grokster

At findLaw, Julie Hilden previews Grokster: The Supreme Court Finally Steps Into The Fray Between Online File Swappers And The Major Movie And Recording Studios: "The Court's ultimate decision in MGM v. Grokster is very likely to be one of the landmarks of this term."

Beer, Branding and Human rights

The ongoing dispute over the Budweiser trademark is the first trademark case brought into the European Court of Human Rights. Bloomberg reports: Anheuser-Busch Takes `Budweiser' Dispute to Human Rights Court: "Anheuser-Busch is appealing a 2001 decision by Portugal's Supreme Court, which ruled that Budejovicky Budvar NP has the right to use the Budweiser name under a 1986 treaty between the Czech Republic and Portugal. Anheuser on Jan. 11 asked the human rights tribunal to rule on the case, arguing the Portuguese court infringed its ``peaceful enjoyment'' of the trademark.

Brand Channel looks at the relationship between Beer Brands and Homelands: ""When it comes to identifying with a country, after flags, national anthems and national airlines comes beer," says Martin Lindstrom, a brand strategist from Denmark, the home of Carlsberg. "The advantages are very clear. It is what you would call free branding—leveraging a country's brand rather than building your own."

(via IPKat and The Trademark Blog)

001001 v. Turing?

In Legal Affairs, Benjamin Soskis examines the potential need for a legal regime for intelligent machines: Man and the Machines

At some point in the not-too-distant future, we might actually face a sentient, intelligent machine who demands, or who many come to believe deserves, some form of legal protection. The plausibility of this occurrence is an extremely touchy subject in the artificial intelligence field, particularly since overoptimism and speculation about the future has often embarrassed the movement in the past.

Doing the Math

Washington Post columnist Rob Pegoraro does the math and finds that Napster To Go Doesn't Add Up

I have been purchasing CDs for about 20 years now, in which time I've accumulated about 300 of the things. At an average of $15 each, I've spent $4,500. Now suppose that, instead of buying those CDs, I could have opened up a Napster To Go account back in 1985. My total bill would be $3,600 and counting -- and although I might have accumulated a larger, more diverse collection, I wouldn't own any of it.

I have a hard time accepting that. At its best, music has the same lasting value as books or paintings or any other sort of meaningful art: It isn't a disposable good that you use and then forget about. It's something that you keep listening to and discovering new things in. When music is good, you want to know that it can't be taken away from you.

John Gruber looks at the Subscription Small Print:

with a subscription service, you’re renting music, not buying it. So, for example, you could join Napster To Go tomorrow, pay $180 to maintain your subscription during the next year, and during that time, download tens of thousands of music tracks. But if you cancel your subscription next year, all of that music will stop working. It will stop working on your computer, and it will stop working on your little Napster-compatible portable player. (And thus even while you are subscribed, you need to frequently re-sync your player to your network-connected PC, even if you haven’t downloaded more music, just so your player’s DRM software can check the status of your subscription.)

Grokking Grokster

The 463 previews Grokster: Inside Tech Policy: Grokster Grok

most everyone acknowledges that Congress will have to reengage in the heated battle after a late spring or early summer ruling. This is because the Supreme Court is unlikely to completely accept the 9th Circuit Appellate Court%u2019s decision in favor of Grokster (for one, the Court almost never agrees with the 9th Circuit on any issue), and is as equally unlikely to provide guidelines so detailed and comprehensive in the ruling that it takes Congress of the hook.

(Via Induce blog.)

The Register reports: French consumer group sues Apple, Sony: "A French consumer group has initiated legal proceedings against Apple and Sony, claiming their online music sites violate European anti-trust legislation.'

500,000 less complaints

While this year's Super Bowl halftime show did not draw as many complaints to the FCC as last year's, a couple dozen people complained about this year's broadcast, including two who were "bored" by Sir Paul's set. The NY Times reports: Even Paul McCartney Offended Somebody: "The F.C.C. received at least 31 complaints about the Super Bowl, the commercials or the halftime show, including two questioning the decency of Sir Paul's performance, within 24 hours of the broadcast."

Getting closer to Grokster

The NY Times examines the PR efforts leading up to the oral arguments in Grokster: As Piracy Battle Nears Supreme Court, the Messages Grow Manic: "One side must make people care about obscure technological innovations that they say will be stifled by legislative action or an adverse Supreme Court ruling. The other side battles the image of greedy corporate profiteers and the perception that freely downloading copyrighted works is something other than theft."

Volokh conspirator David Post makes a prediction for the result in Grokster: "While this outcome could be a disaster for P2P file-sharing technologies (and the record companies will undoubtedly trumpet it as such, with many in the press likely following along), it probably won't be. The Court has an easy "out" here, and my experience has been that when they're presented with an easy out they usually grab it."

Patent reform

J. Matthew Buchanan discusses patent reform proposals: Promote the Progress : A patent reform primer: "This year stands to be a critical step in the history of US patent law. Reform is on the agenda and it seems a critical mass is developing. It is quickly becoming clear that major changes are likely to be made in the near future (perhaps by this Congress)."

Cuban on Grokster

Mark Cuban: Grokster and the financial future of America: "In the MGM vs Grokster case, the fewer than 50 companies who control less than 1 pct of all digital information are trying to take control of innovation in the technology industry and pry it away from the rest of us."

Syndication and Copyright

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Last month, Martin Schwimmer asked Bloglines to remove The Trademark Blog's feed from the service, under the theory that Bloglines' terms of service, which reserve the option to frame feeds with ads and to sell its subscriber lists, constitutes an unauthorized commercial use of the feed.

Schwimmer is concerned that his blog will be used for free by Bloglines as space to sell ads to other trademark law firms: "To argue that the creation of a RSS feed impliedly allows this type of uncontrolled commercial re-use is to argue that RSS strips all content of effective copyright protection. I have not seen a compelling legal or policy argument as to why all RSS content should be public domain in this way. "

Critics of Schwimmer's argument label him an "anal-retentive pinhead" who has made "a myopic mistake" for publishing a full-text feed for only non-commercial uses. Because Bloglines works like a web-based replacement for a desktop client, with no ads and individual control over subscribing to feeds, its supporters contend that its use of feeds is not commercial.

Critics of Bloglines note that Bloglines makes feeds publicly accessible to the web at large, not just subscribers to the feed on its service. Dennis Kennedy wonders about the commercial implications of this behavior, "With my content on their site, they are able to surround my content with their own ads and make it part of other revenue-producing activities. At the same time, they are not showing any ads or sponsor logos I have on my blog. Presumably, the Bloglines.com twin of my blog diminishes the traffic to my blog. It's all very analogous to the early controversies over the framing of web pages, even though the technologies are different."

What are the norms for using, repurposing and republishing syndicated feeds?

Even the critics of the Schwimmer/Kennedy position would not argue that publishing a feed grants an unlimited license to use the content in the feed.

Today, I came across Sieblogs, a site which aggregates feeds and repurposes their content while stripping the identifying information about the source of the content. The Legal blog includes posts taken from Larry Lessig, Dennis Kennedy, Ed Felten, and Sabrini Pacifici. The Real Estate blog features a large number of posts taken from Curbed, while the Music blog found posts from Largehearted Boy.

Even the design is a nearly perfect clone of the Weblogs, Inc. layout.

Clearly, Sieblogs has gone beyond accepted norms of RSS use. Does publishing an RSS feed create an implied license for this kind of use, or does it require an explicit license? Would this use be OK if it is non-commercial despite lacking source attribution?

If Sieblogs is an impermissible service, what features distinguish an infringing web service from one that plays nicely in the syndication ecosystem?

  • Attribution
  • Advertising
  • Commitment to not reselling subscriber lists
  • Individual user control over subscription lists
  • Limit access to feed content to registered users
  • Amount of content (full text vs. summaries)

See also these two articles which look at some of these issues from different perspectives:
Information Week: The Weblog Question (corporate issues in blogging, including syndication and ownership)
Derek Slater: RSS, Blogging and Copyright Questions (abstracting these issues into copyright at large.)

Keywords, Search and Trademark

Eric Goldman, Deregulating Relevancy in Internet Trademark Law, Emory Law Journal, Vol. 54, 2005

This Article examines the complex world of Internet search. The Article seeks to ensure that trademark law does not interfere with the free flow of Internet content that consumers find relevant.

The Article starts with three complementary looks at Internet search from the perspectives of searchers, publishers and search providers. From the searcher's perspective, the Article explains how searchers select keywords poorly and decontextualized keywords provide inadequate insight into the searcher's true objectives.

(Via The Trademark Blog.)

Spam swarms

NY Times: Law Barring Junk E-Mail Allows a Flood Instead: "Since the Can Spam Act went into effect in January 2004, unsolicited junk e-mail on the Internet has come to total perhaps 80 percent or more of all e-mail sent, according to most measures. That is up from 50 percent to 60 percent of all e-mail before the law went into effect."