Tech Law Prof Blog

Apple Gift Card Suit Filed

Apple is being sued over gift cards.  The claim, filed in federal district court in Illinois says Apple markets the cards saying that songs are available for 99 cents.  Low and behold, with variable pricing, songs may cost more that 99 cents, or even less than 99 cents.  That's why there are disclaimers that read something like "We reserve the right to alter these terms...."  I don't know if Apple has a disclaimer, but their lawyers can't be that dumb not to include one somewhere regarding gift cards.   File under stupid.

More in CNET.

Windows 7 Pricing Announced

Microsoft announced pricing for Windows 7.  It gets a bit complicated given the different versions and upgrade possibilities.  Ars Technica has it all in a matrix that makes sense (compared to other published reports).  Cost is a bit less expensive for comparable Vista SKUs.  Good for Microsoft on that one.  There will also be a pre-order program that allows for an almost 50% discount for copies of the OS.  Microsoft will offer 7 Home Premium for around $49 for a limited time pre-offer, for example.  The option starts Friday, June 26th and ends Saturday, July 11th.  Details are in the Seattle Post-Intelligencer online only edition here.

7th Circuit Upholds Mass Market Sentencing Enhancement for Internet Auction Fraud

The Seventh Circuit on Monday affirmed the enhanced sentencing of Jeffrey Heckel for mail fraud by using the Internet to conduct mass marketing.  Heckel conducted Internet auctions for items, cashed checks by winning bidders, and sent inferior items from those advertised.  Heckel claimed that only five people were defrauded, and that only one person, the winner, can be defrauded in an auction.  The Court analyzed the sentencing guidelines (§ 2B1.1(b)(2)(A)(ii)) and concluded that they support the enhancement because of the number of people the scheme could reach irrespective of the number that were victimized.  Recognizing that Internet auctions can attract a potentially large number of competitive bids which drive up the price of an item was enough to justify the enhancement.  The opinion is U.S. v. Jeffrey Heckel, (No. 07 CR 41, June 22, 2009).  The oral arguments are also available as an mp3 file here.

Microsoft's Free Virus Beta Now Available

Microsoft's free real time virus program is available as a beta download.  It's available here.  Computerworld and PC World have reviews, generally positive .  One feature that stands out is the minimal use of resources for background scanning.  That's something that commercial virus applications should try some time.  The weekly full machine scans of some products can bring even a relatively powerful machine to a slow grind.

What Were They Thinking?

Bozeman, Montana, has eliminated the practice of requiring job applicants to supply their usernames and passwords to their social networking sites.  Yes, it is crazy for them to ask for that information at all.  Plenty of investigations take place that see the public sides of these sites, and they still bring up questionable material for some targets.  One commentator in US News defends the request, sort of.  You can read that here.  The Wall Street Journal reports on the controversy here.

Netbooks Disappoint Consumers

What a surprise.  Consumers confuse netbooks for laptops.  Netbooks are light, inexpensive machines geared for web and email.  Laptops have the power to run productivity and entertainment applications and do the web stuff.  A significant price difference of say, $300, always seems to translate into a less capable (powerful) machine.  The story is in Business Week.

Microsoft May Do To Antivirus What It Did To Browsers

Microsoft will unveil a new free antivirus app.  The big players in the antivirus market have some concern.  Will they complain to the European Union as everyone else does when Microsoft offers something free for which others pay?  Details in Daily Tech.

Amazon May Open Up Kindle, e-Book Business To Other Formats

Amazon is willing to separate the the e-book business from the Kindle business.  Jeff Bezos is quoted in Information Week saying e-book content from Amazon will be available on a variety of platforms for the same $9.99 price point.  He also suggested that the Kindle open itself up to other content from other vendors.  How serious this may be is another question, though it may help Google with its Justice Department investigation on the book settlement.  The market gets a bit more open if Amazon moves away from linking its own content exclusively with its own reader. 

Are Lawyers Competent to Construct Keyword Searches?

This issue raises its head every now and then in the context of electronic discovery.  One of the latest opinions on this comes from Magistrate Judge Andrew J. Peck in the Southern District of New York.  The case is William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. Mar. 19, 2009).  It involves delays in the construction of the Bronx Criminal Court Complex.  The Dormitory Authority of the State of New York (DASNY) owns the project and agreed to produce emails from non-party Hill International, the project construction manager, as part of the discovery.  The parties could not agree on keywords for locating the relevant emails.  DASNY proposed one set of words that were specific to the project, but possibly too narrow to give comprehensive results.  The other side proposed terms that were broad, and almost generic enough to include the entire email archive.

The opinion, and others quoted in it, suggest that the problem here is more than simply a dispute between litigants.  Judge Peck thinks it may be that lawyers simply don't have a handle on what they are trying to find.  That includes more than the information in the relevant electronic archive.  The context is an archive of emails.  Searching it should take into account how individual emails were created, their purpose, how they are stored, and the form of the documents.  Practically every vendor of e-discovery systems offer contextual search using Boolean style connectors.  One would think that with some 30 or more years using a similar and  sophisticated search strategy with Westlaw and Lexis that constructing keyword searches in document sets wouldn't be that much of a problem.  Apparently it is.

Westlaw and Lexis are really misleading in this regard, and it's not their fault.  It's easy with practice and experience to extract relevant documents from Westlaw and Lexis once an individual masters the search strategy.  There is a combination of knowing the terminology of the legal subject, what kinds of documents are in an individual database, and some thought in the use of language as to how these legal concepts appear in text.  The misleading part is that these massive collections of documents have similar structure.  Cases have captions, docket numbers, counsel lists, authors, and a stylized language that uses consistent terms of art.  Statutes, law review articles,long-form commentary such as treatise, and even newspaper articles have enough of a regular structure that makes searching within them relatively easy for an experience searcher. An archive of emails or irregular documents is another matter entirely.  Westlaw and Lexis carefully run their additions through editors to eliminate misspelling's and other typographic issues.  Even then problems crop up.  Raw archives present problems with typos, short form language (LMAO anyone?), incomplete sentences and other off the cuff communication syntax.

Judge Peck bluntly lays it out:

This case is just the latest example of lawyers de-signing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

He quotes from Judge Grimm in the Victor Stanley case:

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

* * *

Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.   Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D.Md. May 29, 2008) (Grimm, M.J.).

And from Judge Fasciola in the O'Keefe case:

Whether search terms or “keywords” will yield the information sought is a complicated question in-volving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.  United States v. O'Keefe, 537 F.Supp.2d 14, 24 (D.D.C.2008) (Facciola, M.J.).

Judge Peck suggests applying some thought to conducting searches, and that counsel cooperate.  He also suggests using sampling techniques to see what's there and then refining the search.  This is a technique that librarians and other information professionals use all the time.  Sometimes one has to get a sense of what the archive contains before constructing specialized searches within it.  That means finding out about what is being searched.  Competent information management in discovery may mean that lawyers may need to hire an expert when necessary.  Judge Peck noted that in passing through other cases he cited.  He also endorsed the principles of the Sedona Conference, available on the Internet.  Ironically, the site address in the opinion was malformed.  The correct address is http://www.thesedonaconference.org.  (Judge Peck, or at least the editors of F.R.D. used spaces to separate elements of the domain name.) 

From the site description:

The Sedona Conference® is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. Through a combination of Conferences, Working Groups, and the "magic" of dialogue, The Sedona Conference® seeks to move the law forward in a reasoned and just way. The Sedona Conference® succeeds through the generous contributions of time by its faculties and Working Group members, and is able to fund its operations primarily through the financial support of its members, conference registrants, and sponsorships. See "About Us," "Working Group Series," and "Sponsorships" for further details.

Electronic discovery and best practices associated with it are one of the areas covered in detail at the site.  Much of the information there is free with registration.

No IE? Europe Reacts

The European Union is none too happy with Microsoft's announcement to remove Internet Explorer from Windows 7.  That's not what it wanted, they essentially said.  No, no, (as best said in 27 languages), we want Microsoft to offer a range of competing browsers.  Or, as quoted in the statement, "Rather than more choice, Microsoft seems to have chosen to provide less."  Ahem. 

Microsoft's plan leaves it up to OEMs to put whatever browsers it wants on their computers.  It happily provides copies of IE for that purpose.  The move, by default, requires other browser suppliers to do the same.  Opera is as miffed as can be about the development.  This article in CNET says Opera wanted Microsoft to act like a browser common carrier.  The problem is Microsoft is not a utility.  Will Apple have to do the same?  Will Linux or Unix?  Microsoft's action makes the Commission look stupid, and will reflect on its inevitable decision in the case.  Can it actually force Microsoft to supply competing browsers when it does not supply one itself?  Windows will sell either way, with or without IE.  Microsoft's move just makes it all the more inconvenient for its browser competitors in Europe.  To quote Ricardo Montalbon (from Freakazoid), "Laugh with me."

The Day Analog TV Went Dark

Finally, it's happened.  Today is the day that televison stations nationwide are broadcasting in digital form, shutting down their analog transmitters forever.  Instead of the old rabbit ears, consumers must get their broadcasts using a digital television with a digital receiver, or an analog TV with a converter box.  Both, however, need digital rabbit ears or an outdoor antenna that does the same thing.  Way back in the 60s there were photographs of cityscapes with hundreds of antennas littering the roofscapes.  How ironic that we move forward to better broadcast television by going back to those days.  Maybe not, though.  Cable and DSL access negates the need, and antennas compete with satellite dishes for rooftop spaces in the enlighted age of television.  Reports estimate that two million citizens will have problems with the transition.  Out of a country of 300 million plus, that's not that bad.

The Washington Post has a special DTV transition page with more information than anyone will ever need about this.

WIndows 7 Will Not Have IE in European Editions

Microsoft has announced that it will ship European copies of Windows 7 without Internet Explorer.  This is an attempt to calm down European regulators who are investigating the company for abusing the browser market with pre-installed copies of Explorer.  Computer manufacturers are free to add IE back or install other browsers.  Consumers not so lucky to have a browser installed on their machines will find the Internet a little hard to reach without some extra effort.  They will have to get copies via CD, FTP, or from another source.  I think here is still command line FTP in the Windows DOS emulator.  I would imagine that the likelihood of a European-sold machine without some type of browser is small.  Manufacturers know that the Internet is ubiquitous so they will likely install something for customers to get to the web on their machines.  

Microsoft still has a basis to compete for browser share on the web.  I use Chrome most of the time, but there are still features it lacks such as the integration IE has with other Microsoft programs.  I can't print only a selection, or right click and automatically email a picture through Outlook in Chrome.  I usually open Explorer when I want that convenience.  It will be interesting to see what market share the other browsers get in Europe in light of this decision, or if it will even matter.

French 3 Strikes Law Struck Down

The French law Création et Internet, also known as the three strikes law, is struck down by the French Constitutional Council.  Ironically, it only took two strikes, it's parliamentary defeat on initial consideration, and this decision, to be disconnected from French law.  As the law would operate, content owners would investigate and send complaints to to an authority set up under the law.  The authority would then contact ISPs who would send letters to customers warning them of their illegal activities.  The customer would be disconnected from the Internet on the third notice.  Simple, clean, and endorsed by Paul McGuiness, manager for U2, who thinks the world of graduated response laws as the model for protecting content, or is it really an analog business model?

The Constitutional Council took issue with the law's apparent disregard for the principle of innocent until proven guilty.  This is so even though the law is extrajudicial.  The Council also took into account the importance of the Internet as a means of participating in a democracy.  The French government is naturally disappointed in the outcome.  The New York Times reported that Christine Albanel, the French culture minister would suggest remaking the law to account for the Council's decision, bringing it into a court's purview.  If so, that means a mechanism such as the one in the United States where the RIAA pursues file sharers in court.  With or without ISP cooperation, that is a painful and expensive process for the content owners.  

Albanel added that warning letters would go out in fall in any event.  This story in Ars Technica suggests that the number of people who would be intimidated by those letters would be small.  The story reports on a study conducted in the U.K. suggested that without sanctions, the number of people who would take heed of warning letters would drop from 70% to 33%.  The British government is still considering the issue of a legal response to file sharing.

Here is the reports from the New York Times and Ars Technica about the Court's decision.  The Ars story has links to the text of the Constitutional Council's decision, which, of course, is in French.

Free Upgrades to Windows 7 if Purchased at the Right Time

Consumers who purchase computer with the Vista operating system can get an upgrade to Windows 7 if purchased between June 26th and October 22nd of this year.  This comes from a leaked Best Buy memo giving the retailer's understanding of the Microsoft upgrade program.  Yep, just like XP, and Vista after that.  More in Information Week.

Ninth Circuit Reinstates Antitrust Suit Against Verisign

The Ninth Circuit has ruled that Verisgn can be sued for antitrust violations regarding the way it sets prices for domain names, among other potentially illegal conduct.  The complaint was dismissed at the District Court level, but reversed last Friday.  The opinion is here, and the story in the San Francisco Chronicle is here.

Bing Popularity? Not So Fast

CNET disputes that Bing is as popular as other reports indicate.  Read it here.  Will Microsoft ever become the Avis of search engines?

Wiretap Suits Against AT&T Dismissed

The wiretapping suits against AT&T and other telecoms, pending in San Francisco, have been dismissed.  The suits alleged constitutional violations for letting the United States have access to the various networks without a court order.  Judge Vaughn Walker dismissed the suits noting the companies were protected under the FISA amendments signed into law in July of 2008.  The Electronic Frontier Foundation, who provided legal assistance to plaintiffs, said it would appeal.  Their statement is here, and includes links to Judge Walker's order.  More details in Channel Web.

Bing Day Three

Or is it day five?  Bing has transcended expectations and has become (for now) the second most popular search engine in the United States and the world.  PC World reports market share numbers for Bing and Yahoo as 16.28% and 10.22% respectively in the United States and 5.62% and 5.13% respectively worldwide.  Speculation is the novelty factor driving traffic, with Microsoft hoping that users will stick around after trying out Bing.  Rob Pegoraro tries some searches in Bing and compares them to similar searches in Google.  The results are mixed.  Bing may not be a Google-killer, but it might be a Yahoo-killer.  Bing did have a minor stumble when its feature allowing video previews to run from search results allowed users to view, ahem, adult content without visiting the source web site.  A user has to disable safe search to get to the content.  Microsoft gave administrators a line of code that disables the disable, no matter what the user does.  Porn sites are understandably upset that Bing can deliver content without the user going to the source.  It is possible that this may actually drive traffic to Bing, though Microsoft can't be happy about why their numbers might be up, if that's it.  In a final note, Reuters notes five features for which Bing should not get credit mostly because they were in earlier versions of Microsoft search in one form or another.  If no one noticed then will a $100 million ad campaign make a difference in the long run.  [MG]

Google Squared

Google Squared is live.  It is a grid representation of search results, particularly useful if building lists of comparable results.  The main page has some sample searches.  I used cat breeds as a sample and it brought up a list of 10 different breeds with links for additional results at the bottom of the page.  Signing into Google lets a user save Squared searches, though one does not need to have a Google ID to use Squared .  I thought I could fool it by typing in the name of the WB cartoon Pinky and the Brain.  I wasn't sure what I would get, but Google Squared came through with episode lists and DVD offerings.  Not bad at all.  

It doesn't work with legal materials much unless they can be categorized.  The generic term "contract of adhesion" stumped it.  Typing in Fourth Amendment as a search did build a list of amendments to the Constitution, though columns the search engine added to the results included Prior History, Dissent, and Majority.  Searching Civil Procedure brought up results with different additional columns, including ISBN, Format, and Publisher.  Additional information changes with the search results.  This may be a fun feature of Google with which to play.  You can find it here.

Windows 7 Release Date Announced

It's official.  Windows 7 gets to retail stores on October 22, right after back to school sales but well before the Christmas sales.  There will be several versions targeted at consumers, businesses, and others.  Pricing hasn't been announced but some news reports suggest those saddled with Vista may get an extra break on pricing for their upgrade packages.