Law Librarian Blog

Dumb Halloween Laws

It’s Halloween.  Here is a short list of laws related to Halloween courtesy of idiotlaws.com.  Here’s an example:

While in Huntsville, if you see someone in an animal control officer uniform that means by law the person is in fact an animal control officer…

So… does that mean during Halloween, by law there are a bunch dead people running around?

Filed in: Huntsville

There are, of course, other dumb laws listed beyond the current holiday, though note the disclaimer:

The laws listed here are for entertainment purposes only. We have tried to cite specific references when available but, we make no guarantees on the validity of these laws and as such: the laws and regulations including the interpretation and commentary we have provided are for entertainment only.

I think I've seen the same words appear in many of the textbooks I used when I was in law school.  [MG]

Some Thoughts (And A Few Personal Disclosures) On Web Privacy

I’m always fascinated by news concerning online privacy, especially in the context of marketing.  I think it’s pretty well established that free services from Google, Facebook, and others are not really free.  Our payment is the information we voluntarily provide combined with monitoring our activities on the Internet.  A story in CIO highlights the lack of transparency on the part of the largest Internet companies on how they create and update user profiles.  It’s not merely a matter of filling in the blanks on a profile page.  That’s too easy and too obvious.  I know that search habits and clicks form the basis of the implied interests, but how does that really work?  The more important questions may be how can we edit that information and control its use. 

All we see are the end results of that inferential profile.  I use Gmail and I know I get targeted ads based on the content of mail sent to and from my account.  Google does have a link “Why this ad?”  The short description says it is based on emails from my inbox and offers links where I may manage or opt out of ads.  There is another option called “Ads on the web” where I can view some of the interest categories associated with my profile. 

They are not all entirely accurate.  One shows I'm interested in “Arts & Entertainment - Music & Audio - Urban & Hip-Hop - Rap & Hip-Hop.”  I do have an interest in music but it does not extend to the listed genres.  Another category is “Books & Literature - Children's Literature.”  I admit a fondness to Scooby-Doo videos, though I can’t believe that outweighs the subject searches I perform as a reference librarian.  I assume Google hasn’t found a way to turn extensive searches on competition, marketing, and antitrust into an ad bonanza.  Google seems to think I like basketball.  I guess all those searches for news on the Chicago Blackhawks do not register with our mechanized overlords. 

The point of this outpouring of detail is to illustrate Google, Facebook, and others pay detailed attention to what we do.  We’ve always known that.  What I don’t know is how Google selected basketball over hockey.  They are not anything alike outside of they are both team sports and typically played in dual use arenas.  It also illustrates how profoundly wrong some of algorithms may be in generating our preferred interests.  Some of these inferences may have consequences beyond ads. 

The CIO article suggests our profiles contain our political affiliations.  That may not matter much to some in the United States.  It may make a difference, as CIO notes, for citizens in other countries where politics and violence are heavily associated.  Google doesn’t list this in my limited demographic listing it displays.  For some reason, however, Google suggests following the Obama campaign whenever I log into Google+.  I do read a lot of political news though I find it disturbing that Google is predicting an assumed voting preference on my part based on my web habits.  I rarely visit campaign sites. 

One suggestion in the article is that the only way to make this process more transparent to the end user is through regulation.  I think it is a great idea though I think it would be hard to implement.  Congress isn’t known for productivity these days.  Moreover, there’s money in this, likely generating hard resistance to changing the privacy landscape.  CNN reports on how much an individual is worth to Google and others.  The amounts change based on, you guessed it, demographics but in 2010 an individual was worth about $14.70 per thousand searches.  There are estimates for Facebook as well. 

I wouldn’t suggest that individuals give up Google and the rest.  I do suggest, however, that anyone using these services should pay attention to the details they have on us when possible.  It’s not only marketing.  Who knows, maybe these profiles could become a component of things like credit scores.  It seems unlikely, but then again, social security numbers were never meant to be unique personal identifiers.  Look how that turned out.  [MG]

Can An Individual Bequeath Digital Media?

Not too long ago Market Watch asked the musical question of what happens to digital files when the owner passes away.  It’s a valid question in this day of consumptive devices where libraries of music, books, and other content reside in a marketer’s cloud.  This isn’t much of an issue on a device with a few hundred or more songs, and books.  But, as the article suggests, someone with 10,000 purchased songs and books has a serious chunk of change invested in media.  Potential heirs may want some of that. 

The answer is likely that the files are not transferrable, at least in a legal sense.  It is possible to keep the account going I suppose if one’s password to the iTunes or other proprietary store is known to loved ones.  That seems a bit impractical given that consuming devices are designed for obsolescence.  There is a likely point where the combination of devices and accounts cannot be sustained.  Backing up to physical media would be an option depending on the amount of DRM applied to a file.  Music is less of a problem than e-books as there are any number of file formats for sale that lend themselves to archiving.  Books, on the other hand, are so locked down that it would take essentially illegal means to pass the files down to others. 

The article notes that one attorney is proposing a digital trust where passwords and other account information are stored for the benefit of loved ones.  I have a feeling that content providers wouldn’t be sympathetic to transferring digital product from one generation to another.  That would mean lost, uh, sales of limited licenses to access content under certain conditions.  It’s an interesting question that the law has not addressed.  There aren’t even papers on the topic in SSRN, at least not which directly examine the question. 

Physical media may be on the wane in the age of the cloud.  It has one advantage, however, in that it can be given away without recourse to the people who created the content.  [MG]

Google Changes Search To De-Emphasize Claimed Copyright Violations In Results

Google announced a change to its search algorithm a few days ago.  A post on Google’s Inside Search Blog puts it this way: 

Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify. 

The RIAA and the MPAA, among others, applauded the move.  I have mixed feelings about it.  Copyright holders have leaned on Google for years to remove links to pirated content from search results.  I can only guess that the motivation for Google to finally do something like this is the fact that it needs content from these very same providers to fill out offerings in the Google Play store.  It makes sense as a business move to promote legal content partners over pirated material.  Google is, after all, a public company responsible to stockholders. 

On the other hand, it leaves Google open to what I call the “think of the children” pitch.  Groups with enough (or think they have enough) clout may pressure Google to edit its results further based on moral, political or social considerations.  It’s obviously too soon for this kind of fallout, but the door is open for others to leverage their causes.  Google isn’t eliminating the questionable links under its new search standard, though it is placing them far enough down in search results that they will likely not be seen.  How many people go past the first few pages of search results?  Dedicated pirates may not care.  The net effect is that search is no longer neutral, if it ever was at all.  [MG]

D'oh, OED Gets Hip By Adding New Words

The venerable Oxford English Dictionary has added several words reflecting both popular culture and the speed at which the Internet creates new expressions.  New additions include D’oh, Bling, Bromance, Frankenfood, Infomania, Muffin Top, Twitterati, and my favorite, Illiterati.  Nina Platt over at Pinhawk.com should be thrilled that Whovian (Defined as: A fan of the British science-fiction television series Doctor Who. "That Whovian is totally geeking out right now.") has also reached recognized status.  Count me in on that one.  I bought pretty every episode that is available on DVD and watch them regularly.  Getting back to D’oh, I would have thought that Homer Simpson’s plaintive expression would have made it years ago.

There is a nice slideshow with all of the words at the San Francisco Chronicle web site. [MG]

Automatic Renewal of Services Without Notice A No Go in New York

There is a case out of New York from last week which should be a wake-up call to any publisher or entity selling subscriptions services out of New York State.  I suspect there are more than Bloomberg, who was the defendant in this case, Ovitz v. Bloomberg L.P. (No. 38 Court Of Appeals, NY, March 27, 2012) (via Google Scholar).  The issue of the case concerned automatic subscription renewals.  Plaintiff Bruce Ovitz (an Illinois resident) leased a Bloomberg terminal in June of 2000.  The two year contract expired in 2002 and Bloomberg continued to provide services with automatic two year renewals. 

Ovitz informed Bloomberg in September of 2008 that he wished to cancel the service at the end of the month.  Bloomberg customer service responded that the service was automatically renewed through June 2010 and that Ovitz would have to provide approximately a year’s worth of subscription fees as an early termination fee.  Ovitz was told that it was Bloomberg’s “standard policy not to give its subscribers any advance notice of the automatic renewal provision or deadline."  Ovitz received dunning letters for the fees he had not paid past this point despite a second attempt to cancel the service.

Ovitz sued seeking a declaratory judgment with class action status, and, remarkably, Bloomberg waived the early termination fee and canceled the demands for payment.  The trial court dismissed the breach of contract and related claims, but allowed some of the other claims about the automatic renewal policy to go forward as a private action under the statute.  The relevant language is:

No provision of a contract for service, maintenance or repair to or for any real or personal property which states that the term of the contract shall be deemed renewed for a specified additional period unless the person receiving the service, maintenance or repair gives notice to the person furnishing such contract service, maintenance or repair of his intention to terminate the contract at the expiration of such term, shall be enforceable against the person receiving the service, maintenance or repair, unless the person furnishing the service, maintenance or repair, at least fifteen days and not more than thirty days previous to the time specified for serving such notice upon him, shall give to the person receiving the service, maintenance or repair written notice, served personally or by certified mail, calling the attention of that person to the existence of such provision in the contract. (General Obligations Law § 5-903 (2))

There is a similar provision for the lease of personal property covering items such as the terminal.

The Appellate Division dismissed all of Ovitz’ claims though it held that the contract provisions were unenforceable as Bloomberg failed to comply with the General Obligation Law provisions.  The reasoning was that he had not alleged he paid for services he had not received and that he suffered no injury due to the deception.  The New York Court of Appeals affirmed this on pretty much the same reasoning.

One justice dissented in part on procedural grounds.  As I read it, Justice Piggot would have the lower court declare the contract terms unenforceable as in conflict with the General Obligation Law.  The effect would be to extend the holding as a general matter as opposed to this individual plaintiff.  The difference is that the declaration would apply to anyone in the class as opposed to those suing individually.  At the same time, there is now precedent that this type of contract term and attempted enforcement runs afoul of New York contract law.

What surprises me more than anything is how Bloomberg could write a contract and enforces it as a matter of policy in a way that so blatantly violates the New York statutes.  Don’t lawyers review this kind of stuff before they push it on to their customers?  I’m well aware of how much Bloomberg charges for the terminal service.  The opinion notes the termination fee was billed at $16,470.  I’m not suggesting that the service isn’t worth the cost.  Pushing people into two year terms in violation of a legal obligation seems a bit [discomforting].  One would think Bloomberg would know better initially than backing away from the practice when confronted with a lawsuit.  Were they counting on people not suing?

As a side note, I wonder if anyone else is doing this and what the laws of the state governing the customer and the publisher say.  I can’t believe New York law is an exception to how contract renewals are handled by other states.  [MG]

Library of Congress Blocks Wikileaks to CRS

Some of the fallout from the Wikileaks has taken the form of removing access to the site from government employees.  That, apparently, includes analysts working with the Congressional Research Service.  There seems to be some soul searching over this.  On one hand, the information was released illegally.  On the other, it is information that can be useful.  The Library of Congress released its own press release justifying the move:

The Library decided to block Wikileaks because applicable law obligates federal agencies to protect classified information.  Unauthorized disclosures of classified documents do not alter the documents’ classified status or automatically result in declassification of the documents.

Quotes from current and former CRS analysts at Nextgov suggest they disagree with the access removal:

I don't know that you can make a credible argument that CRS reports are the gold standard of analytical reporting, as is often claimed, when its analysts are denied access to information that historians and public policy types call a treasure trove of data," a former CRS employee said.

Let me see if I understand this.  Non-government individuals, foreign nationals, newspapers, and almost anyone in the world with access to the Internet can use this information for their analysis, but policy analysts in the United States cannot.  Nothing to see here, move along.  The U.S. should not handicap itself this way.  [MG]

Your Browser Is A Blabbermouth

Your browser knows who you are, and it seems to be quite the tattletale to anyone who cares to listen.  The EFF has a project called Panopticlick.  It's designed to measure the uniqueness of a browser's fingerprint.  Browsers are configurable and customizable.  They interact with certain characteristics of the host computer, such as screen resolution, fonts, operating system, and others.  All of this information becomes available to someone at the other end of an http request.  For those paranoid enough to think that turning off cookies and deleting history will preserve privacy, well, keep drinking that koolaid because it's not true.  The detail of configuration is so extensive that it is possible for someone collecting the information to match information from deleted cookies to replacements for those deleted cookies.  In essence, even changing the fingerprint doesn't confuse the any tracking because of certain consistencies in other parts of the fingerprint.

These conclusions were generated from a sample at EFF's Panopticlick web site.  The study that details the results is here.  Visitors to Panopticlick have the opportunity to test their browser and see their browser and machine profile and get a score.  I tested the browser I used to research this post and it turns out that out of 920,400 visitors tested so far, my browser fingerprint appears to be unique out of all of them.  I see my user agent, HTTP_ACCEPT Headers, Browser Plugin Details (waaay to numerous to list and what appears to be the major part of the fingerprint), Time Zone, Screen Size and Color Depth, System Fonts, whether cookies are available, and results from a limited supercookie test.  The lists are staggering.  The implications even more so.

I'm not aware of companies that use this information, though I have to believe there are a lot of them.  How are the many reports of browser market share or lists of unique visitors for the largest sites on the web compiled?  Does Google use these metrics?  I would guess that they do, along with Microsoft, Yahoo, AOL, and any large site trying to monetize its visitor population.  Keep in mind that with this kind of information and the information we willingly supply sites when we buy something or pay a bill (with our browser), we are clearly identifiable as we move on to other sites where we think we are private.  

Will politicians track their web site visitors and construct messages that cater to their supporters?  And what about the government?  Does the NSA track alleged terrorists with any of these methods?  Somehow I can't picture Jack Bauer with a laptop.  I can, however, picture Vice Admiral John Poindexter peering at a screen while rubbing his hands with glee.  Total information awareness anyone?  And while we're on the subject of governments, I can see repressive governments following dissidents on the web with methods built on this tracking information.  Maybe Facebook is right, that we all should just live transparent lives if we plan to live on the web.  It's not as if the choice will be completely in our control.  [MG]

How Dumb (or Smart) Is Your State?

Mainstreet.com, which is part of TheStreet.com ranks states in various categories.  Some of these rankings are whimsical, such as the ten drunkest states (New Hampshire is more than the first presidential primary, apparently), and the least drunkest state (Utah, go figure).  The site released its assessment of the smartest and dumbest states based on an analysis of various statistics and standards.  The dumbest states include the home or birth states of three of the four members of the major party presidential tickets (Alaska, Arizona, and Hawaii), which explains a lot about politics these days.  Where is Joe Biden on these listings?  Delaware the 5th most debt-ridden state, which probably adds to that explanation.  Massachusetts, by the way, is the most debt-ridden state with total state debt listed at some $72 billion.  Didn't they just have a special election for senator?  And then there is the happiness index, in which Florida comes in dead last.  I guess sunshine isn't everything.  There is also a table for the most trigger-happy states.  Kentucky is number one, and Texas doesn't make it into the top ten (slackers!) for the stereotypical view of that state. The most and least religious states are listed here.

One of the off-hand statements about the dumbest states caught my eye.  Alabama has some of the fewest library visits per capita.  The number of library visits by state (raw data) is in Table 1116 of the Statistical Abstract of the United States if anyone cares how their state stacks up (no pun intended) on library usage.  [MG]

Google Has Easter Eggs

We've come to love, or at least be amused by Easter eggs in DVD menus.  These are hidden content on a disc that's displayed by following undocumented combinations of navigation steps using a DVD remote.  Here's an Easter egg from The Godfather DVD.  Go to Galleries from the Main Menu and select DVD Credits.  Follow the Next arrow at the bottom of the screen all the way to the end.  You'll see a great clip of the Sopranos cast trying to watch, somewhat unsuccessfully, a pirated advance copy of The Godfather DVD.  Note that the language in the clip is consistent with other Sopranos episodes.  You can find this egg and more at DVDEasterEggs.com.

Google apparently has easter eggs hidden on its sites as well.  You have to type in certain phrases and click on certain things to display them.  The Telegraph UK has uncovered 15 of them.  The list is here via Newsweek.  Have fun.  [MG]

New Google Books Game

Google is promoting Google Books with a game of questions about book content that can be answered by searching Google Books.  Prizes are awarded for submitting results.  The top 3 submissions per day will receive Sony Readers and the first 20,000 players will get Google Books laptop stickers.  The game starts today and runs for 10 days.  Find it here.  [MG]

EPA Halts Library Closures

The First Amendment Center is reporting that the EPA has stop library closures, at least for now. From the report:

After releasing a plan in August 2006 that would restructure its library system and eliminate several locations, the Environmental Protection Agency has halted further closures of the libraries in response to heavy criticism from lawmakers and advocacy groups.

...

EPA’s controversial library plan was developed after the Bush administration’s budget for the 2007 fiscal year left the EPA library system, which is funded through the Office of Environmental Information, with just $500,000 for operations.

The plan would eventually close 10 regional libraries and the headquarters library in Washington, D.C. (The Chicago, Dallas, Kansas City and D.C. libraries were shut down before the closures were halted.) The EPA said these closures were part of a plan to modernize their collections by converting them to digital formats. EPA spokespeople said this digitization process would allow the agency to reach a broader audience.