March 2005 Archives

Profits in the Attic

In Slate, Daniel Gross discusses how Ampex has turned its patent portfolio and the threat of patent litigation into profit: The Profits in the Attic - How an old technology has turned Ampex into America's hottest stock:

The hottest tech stock in America hasn't been surging because of what its products promise to do in the future, but for breakthroughs it made more than a decade ago. Ampex has quietly risen a whopping 2,000 percent in the past six months. It is perhaps the most extreme vindication of Kevin G. Rivette and David Kline's book Rembrandts in the Attic, which argued that companies' patent collections could constitute an overlooked treasure trove. In the past year, Ampex has found several Rembrandts in its attic, and maybe even a Renoir or two.

Blawging in journalism

Washington Lawyer: Do You Blog?: "The legal technorati weren’t there at the dawn of the blogosphere, but by 2000 a handful of U.S. law professionals had joined diehard cybergeeks in discovering the sheer simplicity and power of web logs."

Ben Wickert: Spanning the “Blawgsphere”: "Nnow, lawyers, law professors, law students, and even judges have grasped the Web as a medium of expression. Message boards, databases, and weblogs all over the internet have exponentially increased the dissemination of law-related information available to the public. Material once accessible only in trade journals or law libraries now can be found at the click of a button."

Howard Rice: Corporate Blogging: Seize the Opportunity, but Control the Risks: "While corporate blogs offer novel opportunities, they also present significant legal risks. Companies that anticipate these issues and plan accordingly can reap the benefits of corporate blogging while reducing the risk of litigation."

The Blawg Review is the latest legal blog community development project from Kevin Heller and Evan Schaeffer. This follows up on Blawgcast.com, the source for law-related podcasts.

History and Copyright

NY Times: Historical Epic Is Focus of Copyright Dispute: "In a letter this month, a lawyer for James Reston Jr., author of 'Warriors of God: Richard the Lionheart and Saladin in the Third Crusade,' accused the studio of violating American and international copyright law by using 'events, characters, scenes, descriptions and character tensions' in the film that were 'strikingly similar' to his narrative history."

Scrivener's Error: Children's Crusade: "In a no-doubt unintentional bit of cognitive dissonance, today is the argument in MGM v. Grokster, concerning the theft—and that is the correct word—of musical recordings via the Internet, and who may be liable for that theft; and the alleged theft of ideas by Hollywood."

"Dumb Ass" is not a defamatory term

InternetCases.com: California Court of Appeal: "Dumb Ass" is not a defamatory term: "It's not too often that the courts get to pass judgment on the really important issues of our time. But in its March 24 decision in the case of Vogel v. Felice, the California Court of Appeal has determined that calling someone a 'dumb ass' does not give rise to liability for defamation. "

Vogel v. Felice (Cal. Ct. App., March 24, 2005).

How legal is AllOfMP3?

In Slate, Dana Mulhauser looks at the legality of AllofMP3: Barely Legal - The hottest trend in file sharing.: "Could a scheme like Allofmp3.com be legal? Probably. Is it legal, in fact? Probably not. Will you get sued for using it? Not likely, or at least, far less likely than you would be for using Grokster or any of the other peer-to-peer networks."

Earlier this month, Russian criminal authorities declined to prosecute AllOfMP3 for criminal copyright infringement. However, it remains to be seen what happens when international copyright owners pursue a civil copyright infringement case against AllOfMP3 in Russian courts.

Playstation patent problems

AP: Sony Ordered to Pay in PlayStation Case: "Japanese electronics giant Sony Corp.'s video game unit has been ordered to pay $90.7 million in damages to Immersion Corp. over a patent infringement lawsuit related to a controller for Sony's PlayStation consoles, the company said Monday."

Trademarks as Keywords

Jason Hunt and Brian Laurenzo, For Sale - Your Trademark as a Keyword, from IP Frontline magazine.

Most recently, Internet uses of trademarks, and in particular, uses in association with advertising through the Internet, have placed new strains on the traditional interpretation of trademark use sufficient to support a cause of action for trademark infringement. Due to the widespread use and availability of the Internet, advertising activity, and therefore use of trademarks on the Internet, affects nearly everyone who owns or uses a computer.

Threats Against Spyware Critics

Ben Edelman keeps track of Threats Against Spyware Detectors, Removers, and Critics: "Those who make spyware detection / removal software, or who otherwise write about spyware, have come to receive threats from the companies they detect, remove, and write about. This page indexes such threats, their dispositions, their apparent basis, and related research and discussion."

Brand X Reportage

Legal Times:  In Broadband Case, Justices Seem Attuned to Internet Services' Arguments: "In a high-stakes dispute over the regulation of Internet access, the Supreme Court struggled Tuesday over how much deference it should give to a 2002 Federal Communications Commission decision freeing cable modem providers from the rules that govern telephone companies."

Washington Post: FCC Ruling Limits Competition, ISP Tells Justices: "A Bush administration lawyer urged the Supreme Court to accept a 2002 Federal Communications Commission ruling that gave cable companies the right to bar rival Internet service providers from their lines, as the justices heard oral arguments yesterday in a case that could determine what choices are available to broadband subscribers."

Wired News: Will Cable Quell the Competition? "After listening to oral arguments in the controversial Grokster case Tuesday, the U.S. Supreme Court stayed firmly in tech territory as it considered whether cable operators should be forced to open up their broadband data pipes to competition."

AP: Justices Question Control of Cable Firms: "The Supreme Court on Tuesday questioned the tight control cable companies hold over high-speed Internet service in a case that will determine whether the industry must open up its lines to competitors."

The Industry Standard: Supreme Court asks why cable broadband lacks regulation: "During oral arguments, Supreme Court justices questioned how cable modem service providers can argue that broadband access and Internet functionality are an inseparable service when the FCC has required large incumbent telecom carriers to sell access to their broadband networks to competing Internet service providers (ISPs)."

Grokster: "More important than God"

Forget timeliness, here's everything Grokster-related together in one really big post:

Actual Reporting

SCOTUSBlog (Lyle Denniston): Court conflicted over file-swapping: "The Supreme Court put on public display Tuesday two conflicting reactions to the apparently widespread practice of downloading copyrighted songs and movies from the Internet: a concern that software makers may be too enthusiastically encouraging the habit, and a concern that copyright law not be made so restrictive that it stifles new surges of technology creativity."

AP (Ted Bridis): Justice consider legality of sharing movies and music on Internet: "During a lively argument, justices wondered aloud whether such lawsuits might have discouraged past inventions like copy machines, videocassette recorders and iPod portable music players - all of which can be used to make illegal duplications of copyrighted documents, movies and songs."

News.com (John Borland): Supreme Court takes hard look at P2P: "In their questions, the justices were critical of the entertainment industry's proposal, which would hold companies "predominantly" supported by piracy liable for copyright infringement. However, they showed little sympathy for the file-swapping companies' business model."

NY Times (Linda Greenhouse): Justices Seem Responsive to Arguments on File Sharing: "The much-heralded Supreme Court showdown in the Grokster case today between old-fashioned entertainment and new-fangled technology found the justices surprisingly responsive to warnings from Grokster and its allies that a broad definition of copyright infringement could curtail innovation"

Slate (Emily Bazelon): Grok Around the Clock: "The justices seem vexed by their choice. They don't want to be the Luddites who killed off the next iPod, but they also don't want to abandon all pretense of enforcing federal copyright law. "

Wired News (Katie Dean): File Sharing Has Supreme Moment: "The file-sharing fight reached the U.S. Supreme Court on Tuesday, and the burning question among the justices was how to protect copyrights without restraining future tech."

Jay Flemma (perhaps the only writer to discuss both golf and Grokster in the same blog post): Maryland Golf - Virginia Golf - Grokster and the Supreme Court: The court was cognizant of the need to protect inventors of technology from being chilled from creating technologies which might have both infringing and non-infringing uses, but also stressed that the internet download companies were 'willfully ignorant to and indeed induced massive infringement.'"

Tim Armstrong: A Few Notes from the Grokster Argument: "The big issue that the Justices were wrestling with, it seemed to me, is what the standard ought to be for deciding whether services like Grokster can be secondarily liable for their users’ copyright infringement.  The Justices did not sound especially satisfied with either MGM’s or the government’s answers to this question."

James DeLong (Progress & Freedom Foundation): Grokster Day: Grokster was argued in the Supreme Court today. The issues are tough, and the Justices amused themselves tossing curve balls at all the attorneys, not to mention sliders and a knuckler or two.

Wetmachine: Tales of the Sausage Factory: My Day With the Supremes "There are advantages to being a member of the Supreme Court Bar. One is, you get to go and hear the arguments from the Supreme Court Bar section. Guess what I did today! While you will get tons of info from other websites, this is probably the only place you will see someone say that Justice Rehnquist now sounds like a bad combination of Darth Vader and the Emperor from "Return of the Jedi"...."

Harlan Yu: MGM v. Grokster: Breaking Down the Oral Arguments: "The questions they asked showed that they clearly understood the big picture and the broad implications this case has on the future of innovation. This understanding is undoubtedly good for Grokster and the Justices’ questions made me quite optimistic as to the outcome of the case. Below, I’ll attempt to break down what each Justice is thinking based on the oral arguments."

Opinion

Chris Anderson in the LA Times: The Grokster Case's Silent Majority: "The Supreme Court should recognize that there is a silent majority in this case, made up not of pirates or the pop stars but the millions of individual talents who risk getting caught in the crossfire."

Travis Kalanick in the FT: Comment: MGM v Grokster

Andrew Leonard in Salon.com: Music rules: A Supreme Court ruling against peer-to-peer network Grokster would do more than punish music pirates. It would affect the future of the Internet.

Dick Armey in the Washington Times: Protect intellectual property rights: "Taking something for free that you would otherwise have to pay for is called stealing. You can't walk into a store and take a music CD, a DVD movie or software for a computer game without paying for it. Yet everyday, tens of millions of copyright-protected songs, movies, computer games and other pieces of intellectual property are downloaded for free — stolen over Grokster and other similar P2P networks."

Gelf Magazine: Mark Cuban on Grokster: "'Most of the problems I have are with copyright law and the politicians who get paid to pimp for the studios and labels,' Mark Cuban tells Gelf Magazine, in explaining why he's waded into the legal battle over online file sharing."

Ernest Miller: More Editorial Board Takes on Grokster: "Rather than look at all the commentary, I want to look at a couple of places where some of the authors don't get it."

LA Times: California's Civil War: "What the entertainment industry wants is veto power over technology with the potential to be used illegally. That's not in society's best interest. If those creating the peer-to-peer networks could be held liable for illegal activity, where do we draw the line? Why not go after the manufacturers of operating systems, hard drives and CD burners that can also play a role in illegal activity?"

Daniel Henninger in the WSJ: Can Justice Scalia Solve the Riddles Of the Internet? "As the berobed Justices of the U.S. Supreme Court sat pestering the suits who came before them days ago to contest Metro-Goldwyn-Mayer v. Grokster, a case nominally about the arcana of 'peer-to-peer file sharing,' it would have been entirely appropriate had a subversive in the gallery pulled out his wondrous iPod, shoved a teensy PodWave external speaker into the thing and filled the grand chamber with Bob Dylan's ancient, famously prophetic lyrics: 'Something is happening here, but you don't know what it is, do you, Mister Jones?'"

Multimedia

C-SPAN: Fred Von Lohmann, Electronic Frontier Foundation, & Theodore Olson, Motion Pictures Assoc.: "Fred Von Lohmann, Senior Staff Attorney for the Electronic Frontier Foundation, and Theodore Olson, Former Solicitor General for the Bush Administration (2001-2004) and Representative of the Recording Industry and Motion Pictures Association, discuss the Supreme Court case on sharing music and video files over the internet." (Real)

NPR Morning Edition: Supreme Court Hears Copyright, File-Sharing Case

The Brian Lehrer Show (WNYC): Copy-rights and copy-wrongs, with Nick Thompson (Legal Affiars), Dan Glickman (MPAA) and Joe Fleisher (Big Champagne).

The Connection (WBUR): Supreme File Trial with Declan McCullough, (News.com), Daryl Friedman (NARAS), Lawrence Lessig (Stanford Law School), and Fred von Lohmann (EFF)>

The Scene

Wired News: Camping Out for the Grokster Case: "Forget Star Wars premieres. A seat at the MGM Studios v. Grokster Supreme Court hearing Tuesday morning was the hottest ticket in town."

Machination: This will get a better title later: evolving superficial thoughts and on-the-ground observations from MGM vs. Grokster: "Outside the court demonstrations in favor the p2p technology, public domain works, creative commons licensing and the like were had next to demonstrations against "stealing music." If that sounds like it doesn't quite mesh, like people, for the most part, weren't quite talking to (or yelling at) each other in the same terms, then you feel how I felt"

Luminous Void: Oops. I was too late. "I got there and there were roughly 40-50 people in line. Expectations were that 50 would get in — maybe less, I’ve heard rumors of lots of VIP’s. So there was a high risk of a cold overnite for naught."

JewishBuddha: Foiled Again! MGM v. Grokster: "I got into the 10 Commandments cases, but not into either of the two copyright cases I tried to attend. From this, I can only conclude that copyright is more important than God."

Brand X Roundup

Although overshadowed by Grokster, another major internet case will be argued in the Supreme Court on Tuesday. In National Cable & Telecommunications Association v.Brand X Internet Services (04-277), the Court will review whether the FCC was entitled to decide that cable modem service can be regulated under the Communications Act as an information service and not a telecommunications serve.

Courtesy of the ABA Supreme Court preview, Brand X Merit Briefs.

SCOTUSblog's Tom Goldman (who will argue for the respondents) previews Tuesday's Brand X Argument: "The case involves the classification of broadband Internet services under the federal communications laws. The case is significant because if a service is classified a ‘telecommunications service’ it is presumptively regulated as common carriage, as discussed below."

The New York Times: Supreme Court to Hear Case on Cable's Regulatory Duties: "The case revolves around a ruling issued in 2002 by the Federal Communications Commission that the service provided by cable companies should be defined as an 'information service,' and not a 'telecommunications service,' which is the designation given to traditional telephone companies."

Infoworld: Supreme Court to hear cable modem case: "A group of ISPs (Internet service providers) on Tuesday will ask the U.S. Supreme Court to require broadband cable providers to share their networks with competitors, just as incumbent U.S. telecommunications carriers were required to share their DSL (Digital Subscriber Line) networks during the past five years."

Going Grokster

Overviews
Jonathan Band (of Morrison & Foerster) provides a helpful summary of the arguments made in the briefs, in chart form: The Grokster Scorecard

Briefs are available from the Copyright Office and EFF

At SCOTUSblog, Steven Wu offers a useful overview: MGM v. Grokster: Background and Analysis: "This case pits large copyright holders against technological upstarts. The copyright holders claim that new technology will drive them out of business; the techies claim that overly restrictive legal rules could stifle innovation. This is not a new battle: Twenty years ago, in the famous case of Sony v. Universal, 464 U.S. 417 (1984), the motion picture industry argued that Sony's sale of home video systems (the Betamax) constituted contributory copyright infringement. The Court ruled for Sony, holding that there was no contributory copyright infringement because 'the Betamax is capable of commercially significant noninfringing uses.'"

Legal Times' Tony Mauro introduces the attorneys: Top Attorneys Tapped for High Court Tech Cases.

Reporting
The NY Times: A Supreme Court Showdown for File Sharing: "The case, M.G.M. v. Grokster, is in many ways the culmination of five years of escalating legal, technical and rhetorical attacks against file-sharing systems and their users by the music industry. It is being eagerly followed by a range of media and technology companies because the court may use this case to redefine the reach of copyright in the era of iPods and TiVo."

LA Times: High Court Prepares for Case Against File Sharing: "How the court rules could shape the digital evolution of entertainment and technology, industries that have long been uneasy partners. A win for StreamCast and Grokster could force the studios and labels to work with their file-sharing nemeses or redouble their attacks on individual downloaders, more than 9,000 of whom have already been sued. A win for the entertainment companies could make entrepreneurs and investors balk at developing new entertainment and communications technologies."

The Economist: Illegal file-sharers under attack: "The entertainment business has long been susceptible to copyright infringement—and it has usually blamed the electronics industry. The music industry first cried foul at the introduction of the cassette-tape recorder in the late 1960s. More recently, the digitisation of music has allowed ‘burning’ of music tracks on to CDs with the help of a computer. The latest threat to the record companies is a copying technique of even greater speed, ease and scope."

News.com: Top court to hear landmark P2P case Tuesday: "From the smallest start-up to the executive offices of Intel, the technology world sees Tuesday's Supreme Court review of file swapping as potentially one of the most critical moments in the industry's history. At stake is nothing less than the future of innovation, executives say."

Wired News: Supreme Showdown for P2P's Future: "When file-sharing service Grokster and entertainment giant MGM Studios face off Tuesday in front of the Supreme Court, the lawyers will argue copyright law. But the court's decision will affect how people use entertainment and share information."

The Hollywood Reporter: Justices set to hear MGM v. Grokster: "It's unlikely that any case has engendered more hand-wringing during this session of the court than MGM Studios v. Grokster, which has attracted more briefs filed on both sides than any other case before the high court this term. People are expected to camp out during a cold, drizzly spring to get the few public seats, and protesters have been preparing their placards."

Intellectual Property Watch: U.S. File-Sharing Case Could Have International Impact: "While both sides agree the outcome will have an international impact, they disagree on whether it violates any international agreements to which the United States is a party, and whether the legal principle of secondary liability comes into play in this case."

Opinion
Mark Cuban: Let the truth be told…MGM vs Grokster: "It won't be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them. That's what is ahead of us if Grokster loses."

News.com reports: Mark Cuban to finance Grokster defense

NY Times: Editorial: When David Steals Goliath's Music: "The battle over online music piracy is usually presented as David versus Goliath: the poor student in his dorm hunted down by a music conglomerate. It is easy, in that matchup, to side with the student. But when the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating. If their work is suddenly made "free," all of society is likely to suffer."

Enrest Miller takes the NYT editorial board to task: New York Times Editorial Board Blows It on Grokster: "They manage to all but regurgitate Hollywood's talking points on the issue."

Doron Ben-Atar in the Chronicle of Higher Education: Hollywood Profits v. Technological Progress: "There is no denying that commercial use of copyrighted material is both illegal and immoral. Yet estimates of the cost of piracy are misleading. They don't account for the fact that piracy fuels demand for entertainment products: 2004 was a banner year for pirates; it was even better for the movie industry, where rentals and sales of DVD and VHS movies accounted for nearly $26-billion. When Hollywood cries poverty, as the victim of pilfering teenagers and workers who live on a couple of dollars a day, it is laughable."

David Rowan writes in The Times (UK): Downloaders of the world unite: "But the roughly 10 per cent of ‘legal’ file-swapping on these networks allows programmers to swap code, academics to exchange learned papers and little-known musicians to gain a fan base. Why should the music industry be able to close such communications channels? Just because technology comes along and disrupts existing business models, should copyright owners not find clever ways to adapt, rather than suing 12-year-olds and fighting software developers in court?"

Related Items
Music and Video Downloading Moves Beyond P2P: "49% of all Americans and 53% of internet users believe that the firms that own and operate file-sharing networks should be deemed responsible for the pirating of music and movie files. Some 18% of all Americans think individual file traders should be held responsible and 12% say both companies and individuals should shoulder responsibility."

Randal Picker, Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design: "It has been clear for sometime that the Supreme Court would revisit its 1984 decision in Sony creating the famous (infamous?) “substantial noninfringing use” test for secondary liability for copyright infringement. The only question was how the challenge would emerge. Would it be a re-make of Sony with the digital video recorder playing the role of the VCR? Or would some other device force its way on the stage? Of course, we now know that peer-to-peer software has done just that and that the lower court decisions in Napster, Aimster and finally Grokster have put these key issues before the Court again."

See also: IPtelligentsia podcast: Grokster and coverage at the Induce blog.

More links are available from FurdLog: Monday’s Grokster Roundup

iTunes UK domain name dispute

BBC News reports: Legal row over iTunes domain name:

Benjamin Cohen, 22, registered itunes.co.uk in 2000, but earlier this month the UK domain name registry, Nominet, handed the name over to Apple.

Mr Cohen, of Hackney, east London, has applied to the High Court for a judicial review, saying Nominet is biased against small businesses.

But Nominet say legal experts found Mr Cohen was abusing his registration.

The body's judgement, dated the 10 March, states by offering to sell the domain name and by continuing to re-direct people from itunes.co.uk Mr Cohen is abusing his registration.

In the decision: Apple Computer Inc v. CyberBritain Group Ltd, the independent arbitrator concludes: "I find that the Complainant has Rights in a name or mark which is similar to the Domain Name. On the balance of probabilities, I find that the Domain Name, in the hands of the Respondent, is an Abusive Registration on the grounds of its use in a manner taking unfair advantage of, and being unfairly detrimental to, the Rights of the Complainant. I direct that the Domain Name be transferred to the Complainant."

IPtelligentsia Podcast

| 5 Comments | 3 TrackBacks

Hey, look, there goes a bandwagon!

I'm jumping on and figured I'd give podcasting a shot.

IPtelligentsia podcast 2005-03-21.

This 'cast looks at MGM v. Grokster, in particular, how the arguments made at oral arguments were reflected in the 9th Circuit ruling. This is not particularly useful pedagogy compared with using the briefs, but it does make for more interesting audio. Mainly, this was a way of giving the latest 'net fad a try.

Lessons learned: 1. This takes much longer than I thought. I only managed to use a single primary source, instead of the few I planned on. 2. I have a voice for text blogging (it's sort of like having a face for radio).

Should I do future podcasts? That depends not only on whether I can find audio primary sources or figure out how to record interviews, but on whether it is any more interesting than plain old text blogging. Audio is a very different medium from text, and a useful podcast depends on finding something that works better in that medium.

Here are the useful links:
MGM v. Grokster (9th Cir., 2004)

EFF Case Archive: MGM v. Grokster

US Copyright Office: United States Files Brief in “File-Sharing” Case

Groklaw: Transcript of oral argument in Grokster

IT Conversations: Law and IT: MGM v. Grokster: Ernest Miler talks with Tim Wu, Denise Howell, Charles Petit and Fred von Lohmann.

Golden Tee Copyright and Trade Dress

Instructions on how to use trackball as a method for operating a golf video game are not protectable under copyright. The scènes à faire doctrine prevents a copyright owner from asserting copyright protection over the elements that are not distinctive parts of a video golf game. Incredible Technologies, Inc. v. Virtual Technologies, Inc., 03-3785 (7th Cir., Mar. 15, 2005).

Fair use and moral rights

| 1 Comment

In a recent speech, Judge Kozinski discussed a proposal to reform copyright law by changing the remedy available for violating the copyright owner's exclusive right to make a derivative work. Instead of obtaining an injunction, the copyright owner would be able to either sue for damages (to the copyright) or for disgorgement of a royalty (percentage of the profits). Via Copyfight, blogger mellow-drama summarizes: Scrapping Fair Use

Kozinski was pretty adamant that he thinks most copyright holders are "control freaks" who think of their creations as their babies; and he thinks we should remove copyright from the realm of the emotional and put it into a strictly business sense %u2013 in other words, the interests of the advancement of science, art, and culture is more important than an individual's right to create something and retain control over that creation. He did point out that if you created something and didn't release it to the public, it could remain yours forever. But once people put their creations into the public domain and make money from them, then they are subject to be built upon by anyone who comes along. He thinks that others may often be able to exploit the creator's work better than the creator, who is too close to the creation to necessarily make the best use of it.

This approach would make the copyright a completely economic interest and deny copyright owners to prevent the publication of unlicensed derivative works for artistic or aesthetic reasons. This approach would move American copyright law away from having much respect for an author's moral rights.

If Congress adopts this as a law, I wonder if owners of valuable copyrights (e.g. Harry Potter, Mickey Mouse) would attempt to use trademark dilution as a way to obtain an injunction against unlicensed derivative works and how that will affect the balance of interests in fair use.

Meet John Doe

In the Village Voice, Nick Mamatas discusses the RIAA file sharing lawsuits and his experience as a defendant: Meet John Doe

Spywary

FTC Report
This week, the FTC released a report on Monitoring Software on Your PC: Spyware, Adware, and Other Software

This report is based on information presented in the Commission's April 2004 workshop on spyware and finds:

  • It is difficult to define spyware with any precision. While the following does not include all programs that may be considered sypware, it provides a useful starting point for defining spyware: "software that aids in gathering information about a person or organization without their knowledge and which may send such infromation to another entity without the consumer's consent, or asserts control over a computer wit the consumer's knowledge."

  • Spyware is a serious problemthat can impair the operation of computers, create substantial privacy leaks and hamper businesses' computer usage.

  • Spyware is often more difficult to uninstall than other types of software.

  • Together, both private sector and governmental actions may ameliorate the spyware problems. Software and operating systems should be designed with security in mind. The industry should develop standards for defining spyware and expand efforts to educate consumers about spyware risks. Government should increase criminal and civil prosecution under existing laws, increase efforts to educate consumers about the risk of spyware, and encourage technological solutions.

  • The DOJ and FTC staffers who participated in the spyware workshop were not particularly enthusiastic about anti-spyware legislation. They noted that law enforcement actions against spyware distributors have been hampered not by a lack of federal legislation, but rather "by the inherent difficulties in investigating and prosecuting spyware cases."

SPY Act
On Wednesday, The House Energy and Commerce Committee passed The Securely Protect Yourself Against Cyber Trespass Act (SPY Act) (H.R. 29) 43-0.

Wired News reports: Revised Spyware Bill Moves Ahead

A key committee in the U.S. House of Representatives unanimously approved anti-spyware legislation Wednesday that includes revisions designed to make the bill more palatable to business interests.

HR29, the Securely Protect Yourself Against Cyber Trespass Act, or Spy Act, is sponsored by Rep. Mary Bono (R-California). It aims to prevent spyware purveyors from hijacking a homepage or tracking users' keystrokes, requires that spyware programs be easily identifiable and removable, and allows for the collection of personal information only after express consent is given by users.

Spyware installed by P2P Programs
Spyware researcher Ben Edelman released a Comparison of Unwanted Software Installed by P2P Programs: "Although each P2P installer included at least a vague reference to each program to be installed, certain P2P programs' installation procedures nonetheless present cause for concern. For one, substantive disclosures are generally detailed only in license agreements presented in scroll boxes -- often squeezing thousands of words of text into small windows requiring dozens of page-downs to view in full."

CD-ROM, Photographs, and Tasini

Faulkner v. National Geographic Enterprises Inc., 04-0263 (2d Cir., Mar. 4, 2005).

New York Law Journal: National Geographic Wins Copyright Suit Over Articles, Photos on CD-Rom

The 2nd U.S. Circuit Court of Appeals has confirmed a lower court ruling dismissing copyright claims against National Geographic by interpreting the copyrights at issue within the context of the U.S. Supreme Court's 2001 Tasini ruling.

The opinion, Faulkner v. National Geographic Enterprises Inc., 04-0263, by Judge Ralph Winter, combined multiple cases in which freelance writers and photographers accused National Geographic of copyright infringement over its sale of a set of CD-roms containing the entire collection of magazines dating back to 1888.

InternetCases.com: Electronic Scans of National Geographic Were Proper Revisions Under Tasini Standard

The Second Circuit has upheld the U.S. District Court for the Southern District of New York's grant of summary judgment in favor of the National Geographic Society and related entities, holding that the creation and distribution of electronic versions of National Geographic did not infringe the copyrights of the contributing photographers and authors. Applying the standard set forth in New York Times v. Tasini, the court determined that the electronic version was a "privileged revision" under Section 201(c) of the Copyright Act.

Info Tech Law Writing Competition

Computer Law Association 2005 Information Technology Law Writing Competition: "Papers will be evaluated based on persuasiveness, importance and relevance of the topic to information technology lawyers, and writing style." $250 prize.

How Much Is Stolen Music Worth?

Slate's Explainer tries to figure out How Much Is Your Stolen Music Worth?

It may cost $0.99/song at retail, but willfully infringe on a copyright and face statutory damages of up to $150,000. See 17 USC §504(c).

Identity Theft for Fun and Profit

bIPlog' Tara Wheatland explains how much of the news reporting has completely missed the point of the ChoicePoint scandal-- it is not hacking, but the company's practices and policy. Un-Spinning the ChoicePoint Scandal:

The persons, admittedly criminals, who gained access to "critical personal data" on hundreds of thousands of U.S. citizens did not steal the data--ChoicePoint sold it to them.… So what went wrong here, putting aside the use the criminals made of the information gained from ChoicePoint? The criminals did not hack into ChoicePoint databases, nor did they, by common definition, "steal" any information. The main problem was arguably on ChoicePoint's end--the criminals successfully circumvented ChoicePoint's "tests" for legitimacy of purpose.

EPIC has more info concerning ChoicePoint

Bruce Schneier looks at ChoicePoint's 8K filing and finds: ChoicePoint Says "Please Regulate Me": "ChoicePoint actually has no idea if only 145,000 customers were affected by its recent security debacle. But it's not doing any work to determine if more than 145,000 customers were affected -- or if any customers before July 1, 2003 were affected -- because there's no law compelling it to do so."

MSNBC reports that ChoicePoint data is often riddled with errors.

Today, the NY Times reports on a theft of personal data from LexisNexis, and it's not merely some students' rewards points balances: Consumer Data Is Stolen From LexisNexis Unit

The British-Dutch publisher Reed Elsevier said today that hackers had stolen identification and passwords from the government records unit of its LexisNexis division and may have fraudulently used that data to obtain further information about as many as 32,000 people in the United States. The LexisNexis unit, Seisint, which Reed Elsevier purchased in July 2004 for $775 million, consolidates records from government offices in the United States.

LexisNexis responds: LexisNexis investigates compromised customer IDs and passwords to Seisint U.S. consumer data: "Reed Elsevier today announced that LexisNexis, its global legal and business information business, has identified a number of incidents of potentially fraudulent access to information about U.S. individuals at its recently acquired Seisint unit. The incidents arose from the misappropriation by third parties of IDs and passwords from legitimate customers."

The BBC reports that Moscow prosecutors are not charging AllofMP3.com with criminal copyright infringement. Under Russian law, apparently only counterfeiting of physical media can be a criminal offense. Digital copyright infringement may be copyright infringement, but not criminal. 'Legal okay' for Russian MP3 site: "According to Tass, prosecutors had decided not to pursue with legal action because Russian copyright laws only cover physical media such as CDs or DVDs and not digital files such as MP3s."

Alex Moskalyuk explains in more detail: AllofMP3.com escapes criminal lawsuit, for now

On March 4th prosecutor’s office of Moscow’s Southwestern region refused to charge AllofMP3.com in a criminal lawsuit. What’s interesting is that AllofMP3.com did not win the case due to the compulsory licensing legislated in Russia. The prosecutor’s office affirmed that the Russian music site was distributing copyrighted music from its site, and in many cases did not have a proper license to distribute them. Russian criminal law severely punishes attempts to distribute copyrighted music without proper licensing procured first. However, Russian law is quite specific about distribution of material goods, as the law usually applies to CD and DVD pirating.

Soon, we will get to see how Russian civil courts deal with this...

FEC crackdown on blogging?

Can the FEC regulate news coverage and independent advocacy of political candidates online? At News.com, declan McCullagh reports: The coming crackdown on blogging

Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.

Um, what about the First Amendment?

Downloading: The Next Generation

The Washington Post looks at the next generation of the music downloading industry and file sharing battles: Downloading: The Next Generation

Dislodging Kelly and millions of her peers from services that give them all the copyrighted music they want, free of charge, is challenge enough, but the record labels realize that it's also only half the battle. Entertainment-industry leaders know they'll never stamp out illegal file swapping on the Internet, but they hope they can tarnish the experience enough to drive otherwise law-abiding users off of the underground peer-to-peer -- or "P2P" -- services and into the waiting arms of licensed digital services like the remodeled Napster, Rhapsody and Apple's iTunes.

After attempting to help my sister get music from Windows Media Player into iTunes and iPod, I am convinced that as long as Apple, Microsoft and Real promote competing DRM flavors, MP3 downloading will remain more attractive, as it is the only format that will play for sure on all computers, portable players, phones and other devices.

Copyrights Keep TV Shows off DVD

Wired News reports on the licensing trouble that television producers have in clearing music rights for DVD releases of certain series: Copyrights Keep TV Shows off DVD: "For many TV shows, costs to license the original music for DVD are prohibitively high, so rights owners replace the music with cheaper tunes, much to the irritation of avid fans. And some shows, like WKRP, which is full of music, will probably never make it to DVD because of high licensing costs."

Eminent Domain over Patents?

| 2 Comments

Can a state use its power of eminent domain to obtain public control of a patent in order to promote lower drug prices? One D.C. Councilman hopes so. The American Prospect reports: Patents Pending: "[District of Columbia Councilman David] Catania, a Republican who recently registered as independent after breaking with President Bush over the same-sex-marriage issue, introduced a compulsory license bill February 1. It authorizes Washington, D.C.’s mayor to declare a health emergency and, under eminent domain authority, issue a compulsory license to a generic firm to produce select patented drugs."