Tech Law Prof Blog

Google Hires a Lobbyist for D.C.

His name is Alan Davidson.  His background from the Center for Democracy and Technology web site:

Alan Davidson is Associate Director at the Center for Democracy and Technology (CDT), a Washington D.C. non-profit group working to promote civil liberties and human rights on the Internet and other new digital media. Alan leads CDT's Internet free expression and digital copyright projects, and has testified before Congress, written, and spoken widely on privacy, free speech, encryption, and copyright online. He also leads CDT's efforts to promote democratic values and individual rights within domain name, Internet governance, and technical standards bodies.

The Google press release with full details is here.

AMD To Subpoena Companies in Anitrust Litigation with Intel

CNET News is reporting on a development in the latest AMD/Intel antitrust litigation.  AMD is seeking documents from companies such as Dell, HP, Gateway, Fujitsu, IBM, and others concerning its claims against Intel.  AMD noted that it is not suing any of the served companies.  The story is located here.

Disney and Viacom Sue FCC over New Kid TV Rules

Disney, Viacom, and others are suing the FCC over extensions to children television rules set to enter into force on January 1st.  The essence of the rules extend educational content requirements and advertising limits to digital broadcasts.  Programmers object based on the fact that digital broadcasts can use multiple channels where one otherwise existed in the analog world.  Extending the rules to these channels can limit what programmers can or would like to do with them.  Details of the suit and issues are contained in a Washington Post story.

FTC Sues Spammer Over Illegal Spyware Operation

From the FTC press release:

According to the complaint filed by the FTC, Odysseus Marketing and its principal, Walter Rines, advertised software they claimed would allow consumers to engage in peer-to-peer file sharing anonymously. With claims like “DOWNLOAD MUSIC WITHOUT FEAR,” and “DON’T LET THE RECORD COMPANIES WIN,” the defendants encouraged consumers to download their free software. The agency charges that the claims are bogus. First, the software does not make file-sharing anonymous. Second, the cost to consumers is considerable because the “free” software is bundled with spyware called Clientman that secretly downloads dozens of other software programs, degrading consumers’ computer performance and memory. Among other things, this accumulated software replaces or reformats search engine results. For example, consumers who downloaded the spyware may try to conduct a Google or Yahoo! search. Their screens will reveal a page that appears to be the Google or Yahoo! search engine result, but the page is a copy-cat site, and the order of the search results is rigged to place the defendants’ clients first. The bundled software programs also generate pop-up ads and capture and transmit information from the consumers’ computers to servers controlled by the defendants.

The full press release is here.  Text of the complaints and other related documents are here.  The case is FTC v. Odysseus Marketing, Inc., and Walter Rines, Defendants, United States District Court, District of New Hampshire, FTC File No. 042 3205.

Australian High Court Rules Mod Chip for Sony Playstation Legal

CNET News is reporting on a decision by the High Court of Australia that found modification chips which let Sony Playstations run copies of games and imported games to be legal.  The court stated that the chip by itself does not facilitate copyright violations as it does not create illegal copies of the games.

Another story from the Brisbane Courier Mail on the case is here.

Delaware High Court Protects Identity of Blogger in Defamation Case

The Delaware Supreme Court ruled October 5th that a defamation plaintiff may not use the discovery process to identify an anonymous blogger unless the complaint could have facts that would defeat a summary judgement motion.  The case involved a blogger who posted comments anonymously regarding Patrick Cahill, a councilman of Smyrna, Delaware.  The opinion recounted two specific statements in Councilman Cahill's complaint, one noting character flaws, and another describing the Councilman as "paranoid." 

Cahill then sued and the trial judge allowed discovery which disclosed that the statement had been posted by a Comcast subscriber.  Using a "good faith" approach, the trial judge allowed the discovery of the identity of the anonymous poster.  Through appeals, the case came to the Delaware Supreme Court, who noted that this is a case of first impression not just in Delaware, but in any state supreme court.

The Court stated a number of principles for First Amendment protection of political speech, and the lack of protection for defamation.  The Court noted that the good faith standard was too easy to meet, and that litigants can use these proceedings to discover identity with a motive to seek revenge outside the courts rather than pursue litigation.  After an extensive discussion, the court stated:

We conclude that the summary judgment standard is the appropriate test by which to strike the balance between a defamation plaintiff’s right to protect his reputation and a defendant’s right to exercise free speech anonymously. We accordingly hold that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion. (Slip Opinion at 16)

The case is John Doe v. Cahill, No. 266, 2005.  The PDF of the opinion is here.

Links to mp3 recordings of the oral arguments are here.  The case was argued September 7th, 2005.

The EU Appoints Monitoring Trustee In MS Antitrust Litigation

The European Union has appointed Professor Neil Barrett as the monitoring trustee in the EC's antitrust litigation against Microsoft.  Details as to Professor Barrett's responsibilities are detailed in a report from InfoWorld.

The EU press release is here.

National ID Cards Implicated in Voting Requirements

The full text of the Final Report of the Commission on Federal Election Reform is available for download from the American University Center for Democracy and Election Management.  The Commission is headed by former President Jimmy Carter and former Secretary of State James A. Baker III.

Among the recommendations is that states use ID cards mandated by the REAL ID act as identification for voting.  The text of the report identified various ID requirements for voting, but the Commission found fault with most of the possibilities.  The discussion regarding IDs is contained in Section 2.5 of the report.  The implications here revolve on the use of a secure, central ID for not just voting, but a variety of common transactions, essentially creating a de facto national ID card.  Further implications include the types of databases states need to construct to maintain consistent voter information, electronic voting, and how these intersect with ID requirements.  Voting technology is discussed in Section 3 of the Report.

The report is available through links on the Commission's web page.

The Commission also links to various web news reports that analyze and react to the Commission's report and recommendations. Many of the reports focus on the ID issues.

NBER Report on Technology Adoption

Technology Adoption In and Out of Major Urban Areas:
When Do Internal Firm Resources Matter Most?
by Chris Forman, Avi Goldfarb, Shane Greenstein  -  #11642

Abstract:

How much do internal firm resources contribute to technology adoption in major urban locations, where the advantages from agglomeration are greatest? The authors address this question in the context of a business's decision to adopt advanced Internet technology. Drawing on a rich data set of adoption decisions by 86,879 U.S. establishments, the authors find that the marginal contribution of internal resources to adoption is greater outside of a major urban area than inside one. Agglomeration is therefore less important for highly capable firms. The authors conclude that firms behave as if resources available in cities are substitutes for both establishment-level and firm-level internal resources.

Wiretaps and Backdoors Courtesy of the FCC

The Federal Communications Commission has released two documents with subtle or ominous overtones concerning government involvement with the Internet.  The first is a policy document adopted August 5th, 2005 but released on September 23rd.  The document enunciates several principles that guide the Commission regarding IP delivered services which on their face encourage openness and competition.  One principle stands out:

"To encourage broadband deployment and preserve and promote the open and interconnected
nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement."

That last modifying clause may have profound implications for software creation and its use.

The full FCC document is available from the FCC's web site.

The second document applies the Communications Assistance for Law Enforcement Act (CALEA) applies to broadband communications that connect to the public telephone network.  This means companies such as Vonage, and others selling Voice over Internet Protocol (VOIP).  That ruling was also issued on September 23rd, and is available from the FCC's site by clicking here.

Thanks to CNET News for reporting on these, with stories here and here.

Cell Phones Used to Track Users Without Probable Cause

From the Foundation's press release: EFF is arguing that a New York federal court should stand by its decision to require probable cause to believe a crime has been or is about to be committed before letting the government secretly track people using their cell phones.

"This is the first case considering when the government can track the movements of your cell phone, and the answer couldn't be more important," said EFF Staff Attorney Kevin Bankston. "Allowing the government to turn anyone's cell phone into a tracking device without probable cause will enable a surveillance society that would make Big Brother jealous."

EFF argues that the Fourth Amendment requires a search warrant for such invasive surveillance, issued under the same strict standards as warrants that authorize phone and Internet wiretaps.

EFF's brief marks the first time the DOJ has had to face lawyers presenting an opposing argument on this issue.

Read all about it.

- Joe Hodnicki