October 21, 2005
RIM Blackberry Sales in U.S. Periled
Reseach In Motion (RIM) request hold the patent infringement case brought by holding firm NTP was denied Friday. The District Court in Richmond, Virginia will now consider whether to enforce the injunction against RIM in selling Blackberries in the United States. The companies reached a tentative settlement in June of this year but abandoned it after the U.S. Patent Office began to reconsider those patents. Appeals are planned no matter what the outcome.
Read more here.
Tribune Writes About Email Scams
The Chicago Tribune web site is featuring a story on Nigerian email scammers that goes into some detail of the practices from the perspective of the scammer. It includes a good look at how this is done to entice the gullible through interviews with former perpetrators. The story is called I Will Eat Your Dollars, after a song popular with the cyber criminals. The site is free, but a subscription is required.
Federal Sentencing Stiffened for Peer-To-Peer Copyright Violations
The United States Sentencing Commission issued emergency rules on Wednesday enhancing the penalty for peer-to-peer file sharing of copyrighted works yet to be released. This includes items such as films yet to be released to theatres. Recently, eight individuals have been arrested with pirating and posting copies of Star Wars III to the Internet before the movie was released to theatres. Changes to existing rules give the judge the power to estimate the number of files shared for purposes of sentencing. Another change makes having a copy of a file in a shared folder count as an illegal distribution. The new rules were issued under the authority of the Family Entertainment and Copyright Act signed by the President last April.
The story is here.
Microsoft Reverts To Old Habits, For A Moment
The Washington Post is reporting that Microsoft had presented draft contracts to mp3 player manufacturers that would require them to use only Microsoft Media Player to transfer music to and from portable devices. Microsoft pulled back when the contracts were examined by lawyers and a rival protested. The Justice Department decided not to pursue the issue once Microsoft changed the offending provisions.
Commentators quoted in the story were amazed that Microsoft would consider using such tactics. The article quotes Howard University law professor Andy Gavil as saying "It's troubling that anyone inside Microsoft was still thinking this was still a legitimate business strategy." Microsoft spokeswoman Stacy Drake McCreedy was quoted as saying "We have a legal process in place that prevents the incidents from occuring."
I wonder how this would play in Europe given the European Commission's order for Microsoft to sever Media Player from the operating system. Microsoft is still appealing that one.
October 20, 2005
Senator Coleman Introduces Senate Resoultion on Internet Governance
Senator Norm Coleman (R-MN) introduced a Sense of the Senate Resolution on Monday (Senate Resolution 273) that expresses resistance to transferring control over the Internet from the United States to the United Nations or another international body.
From the Senator's press release expressing four governing principles articulated by the Bush administration:
- Preservation of the security and stability of the Internet domain name and addressing system (DNS);
- Recognition of the legitimate interest of governments in managing their own country code top-level domains;
- Support for the Internet Corporation for Assigned Names and Numbers (ICANN) as the appropriate technical manager of the Internet DNS;
- Participation in continuing dialogue on Internet governance in multiple existing fora, with continued support for market-based approaches toward, and private sector leadership of, its further evolution.
Court Orders Web Site To Remove Claims About Peer-To-Peer Downloads
Reuters is reporting about a California case involving a web site that promised its customers that they would not be sued for copyright violations when downloading songs from peer-to-peer networks. The FTC claimed the site's promises were untrue. One of the claims quoted in the story read "Rest assured that File-Sharing is 100 percent legal." There were several other claims the Commission specifically cited. A federal court in Claifornia ordered the site to remove the claim as it considers a permanent ban.
October 19, 2005
SMS Messages can Violate the Telephone Consumer Protection Act
Eric J. Sinron, a partner in the S.F. firm of Duane Morris, has published commentary on CNET News about a novel case in the Arizona Courts. The case involves the Telephone Consumer Protection Act of 1991 and how it applies to SMS messages received on a cell phone. The messages were originally sent by email but forwarded by the cellular carrier into cell phone SMS messages.
The plaintiff, Rodney Joffe, sued the sender under the TCPA alleging that the send violated the TCPA provisions prohibition on using "any automatic dialing system" to make "any call" to "any telephone number assigned to a...cellular telephone service." The court found liability against the sender.
First, the lawsuit. The Association of American Publishers has filed suit against Google alleging copyright violations. This follows a similar suit by the Authors Guild filed last month. This is a reaction to Google's Print Library Project which aims to scan the contents of major research library collections and make them available on through search. Public domain items would appear, while items in copyright would just give the snippets around the search terms. Google believes that this practice is acceptable fair use. Those with monied interests in the publishing business have expressed some antipathy for that reasoning. More news on this here.
And finally, Google has, for now, given up it's use of the word "Gmail" to describe it's email services in the U.K., settling for now the trademark challenge brought by a U.K. firm named Independent International Investment Research. IIIR was seeking a cash settlement from Google in the $40 to $60 million range for use of the term, which IIIR uses to describe a part of its software package. All existing gmail accounts will continue to use the term, while new ones will be called Googlemail. The search giant will continue to pursue the issue with the trademark office. More details here and here.
October 18, 2005
Analog TV Cut-off May Come Sooner Than 2009
On Saturday, the Washington Post reported on a draft Senate bill that would end analog broadcasts on the hard date of April 7, 2009 and switch broadcasts to a digital standard. Under existing law, the switch would take place on December 31, 2006, or whenever 85% of households were capable of receiveing digital broadcasts.
Now, CNET is reporting that Senator John McCain would like to move up the deadline to late 2006 or early 2007 to free up spectrum to be used for emergency communications. McCain is concerned that with events such as Hurricanes Katrina and Rita, along with the possibility of terrorist attacks, that he government can't wait until 2009 to re-assign the spectrum. An amendment to the draft bill is scheduled for a committee vote on Thursday.
The articles indicate that this is a developing story. Stay tuned.
The Flip Side of Laptops as a Classroom Tool
The Atlanta Journal-Constitution (free, subscription required) is reporting an interesting story about laptops in the classroom as a distraction to learning rather than a help. Apparently, some students do not use their laptops to take notes but instead surf the Internet, use email, visit chat rooms, or perform other tasks not related to the lecture. The article discusses behavior at Georgia State University and the University of Georgia in undergraduate classes.
The article references a study by Helene Hembrooke and Geri Gay in which students were divided into groups and listened to the same lecture. One group was allowed to use laptops and the other group kept their machines closed. According to the abstract, "Students in the open laptop condition suffered decrements on traditional measures of memory for lecture content."
Who would have thought that students would use their laptops for non-educational uses in class?
New and Recent Papers Available from SSRN on the Topic of Spyware
Available at SSRN:
Rethinking Spyware: Questioning the Propriety of Contractual Consent to Online Surveillance
39 U.C. Davis L. Rev. _____ (forthcoming 2006)
Texas Wesleyan University School of Law
Date Posted: October 14, 2004
The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers’ performance, and which also trigger annoying “pop-up” advertisements of products or services which have been determined to match the users’ preferences. The users’ purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she “surfs the Internet.” The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a result, there have been many legislative proposals, on a state and federal level, to address the spyware problem. All of the proposals assume that, if knowing and effective consent to spyware installation is granted by the consumer, then the software is lawful. Existing case law would seem to provide a means for corroboration of this conclusion. However, the implications of allowing such profound and invasive surveillance appear to be largely ignored in all of the proposals and discussion concerning spyware. This may be because of the “problem of perspective” concerning online activities, as first highlighted by Professor Orin Kerr. This article seeks to illuminate the true nature of the spyware bargain, and questions the propriety of sanctioning such “surveillance bargains” under principles of contract law. Such bargains may often be unenforceable because a term allowing continual surveillance may be beyond the range of reasonable expectations of most consumers. Even if not, however, the privacy implications are such that we as a society may wish to condemn such “bargains to be spied upon,” and conclude that such contracts should simply be unenforceable as a matter of public policy, and therefore banned.
First do no Harm: The Problem of Spyware
Berkeley Technology Law Journal, Vol. 20, p. 1433, 2005
Susan P. Crawford
Cardozo School of Law
Date Posted: September 20, 2005
Last Revised: September 26, 2005
Over the last few years, there has been enormous U.S. interest in legislating rules governing spyware. This Article provides a comprehensive overview of the bills that have been proposed (and passed) in the states and on the federal level. It argues that because spyware is impossible to define, these legislative efforts may do harm to the extent they either are focused on design mandates or are attempts to require notice for electronic interactions. Only a technical approach-and only a particular kind of technical approach at that-will work in addressing spyware. Technical actors need to take an immune system approach to spyware, dividing their efforts and experimenting in the field the same way immunity networks do. If we think of the legal system as a medical expert operating on this difficult disease, our first priority must be to wait to allow these already-emerging immunity networks to take effect, and to do no harm in the interim. This is a time for patience, not for the knife.
Regulating 'Spyware': The Limitations of State 'Laboratories' and the Case for Federal Preemption of State Unfair Competition Laws
Berkeley Technology Law Journal, Vol. 20, p. 1363, 2005
Peter S. Menell
University of California, Berkeley - School of Law (Boalt Hall)
Date Posted: September 22, 2005
Last Revised: September 28, 2005
Drawing on Justice Brandeis's oft-cited observation that states can serve as "laboratories" of policy experimentation, this Article develops a framework for assessing the allocation of governance authority for regulating Internet activities. In particular, it focuses on whether states should be free to experiment with regulatory approaches or whether the federal government should have principal, if not exclusive (preemptive), regulatory authority over Internet-related activities. Using recent efforts to regulate spyware and adware as a case study, the analysis shows that the lack of harmonization of, and uncertainty surrounding, state unfair competition law produces costly, confusing, multi-district litigation and pushes enterprises to adhere to the limits of the most restrictive state. Such a governance regime unduly hinders innovation in Internet business models. On this basis, the Article favors a uniform federal regulatory system and pre-emption of state statutes and unfair competition common law as applied to spyware and adware. The final section of the Article extrapolates from this study of spyware and adware regulation to the larger context of Internet governance.
Spyware and the Limits of Surveillance Law
Berkeley Technology Law Journal, Vol. 20, 2005
Patricia L. Bellia
Notre Dame Law School
Date Posted: July 19, 2005
Last Revised: July 28, 2005
For policymakers, litigants, and commentators seeking to address the threats digital technology poses for privacy, electronic surveillance law remains a weapon of choice. The debate over how best to respond to the spyware problem provides only the most recent illustration of that fact. Although there is much controversy over how to define spyware, that label encompasses at least some software that monitors a computer user's electronic communications. Federal surveillance statutes thus present an intuitive fit for responding to the regulatory challenges of spyware, because those statutes bar the unauthorized acquisition of electronic communications and related data in some circumstances. Indeed, those who argue that no new federal legislation is needed to address the spyware problem rely in part on the opportunities for criminal prosecution and civil suits under surveillance statutes and related doctrines.
As the debate on the need for new federal legislation proceeds, however, there is good reason to question whether federal electronic surveillance statutes can successfully combat anything but the most extreme forms of spyware. Electronic surveillance law does not apply by any reasonable construction to many forms of spyware. Moreover, the overall record on application of surveillance law statutes to a variety of digital-age problems is in fact quite mixed. Courts have reached privacy-protective outcomes on very bad facts, but have also let seemingly problematic practices pass unsanctioned.
The difficulty with efforts to apply surveillance law statutes to new privacy problems is that our federal electronic surveillance statutes are emphatically not general data privacy statutes. Unfortunately, efforts to treat them as such have produced a body of confused - even incoherent - case law. That case law, moreover, tends to make many impediments to application of surveillance law seem technical rather than structural or conceptual. To that extent, it diverts attention from important policy questions, including whether Congress should consider legislative solutions tailored to specific privacy threats (such as spyware), or whether broader data privacy statutes are necessary or appropriate.
This Article uses the difficulties of applying electronic surveillance law statutes to spyware to illustrate the broader limits of surveillance law. Current case law suggests that electronic surveillance statutes are likely to constrain only the most egregious forms of spyware, and there may even be some difficulties in surveillance law performing that limited task. Efforts to use surveillance law to push for more privacy-sensitive industry practices are likely to fail altogether. My predictive judgments may be controversial, partly because surveillance law is sufficiently unstable that there is room for courts to adopt approaches that are more privacy-protective. I thus consider whether courts should use surveillance law to respond more aggressively to privacy challenges such as spyware. Drawing upon case law from other contexts, I show that there is good reason to be wary of using surveillance law as a vehicle for addressing various information privacy problems. Indeed, if electronic surveillance cases were to more plainly expose the limits of surveillance law, they would generate a more fruitful legislative debate about the propriety of true data privacy legislation, whether broadly or narrowly conceived.
Your Laser Printer is a Government Spy, Maybe
It's old news in a sense (see this story from PC World, for example), but the story on tracking codes built into laser printers is worth repeating for those not familiar with the details. The Electronic Frontier Foundation has compiled resources that explain the details behind the practice.
Most laser printers will not only print a page, but will embed on the page a tracking code based on the serial number of the printer and the date and time the document was printed. Xerox pioneered this practice more than 20 years ago to help identify counterfeiters who use laser printers to create fake currency. The EFF, however, is more concerned with the other uses that these hidden codes can use. The organization has filed FOIA requests with the United States Secret Service asking for details as to how the technology is implemented, and how the Sercret Service and other government agencies is using the technology in non-counterfeiting circumstances.
The EFF's resource page with links to more information is here.
October 17, 2005
Indian President Complains About Google Earth
President A.P.J. Abdul Kalam has compiained that the high resolution satellite photos of the earth are open-source intelligence for terrorists.
"Developing countries, which are already in danger of terrorist attacks, have been singularly chosen," said Kalam.
CNET has the rest of the details here.
TSA Can't Search It's Own Databases
The Electronic Frontier Foundation is reporting that the Transportation Security Agency is unable to comply with requests from citizens about what information has been collected on them. The TSA acknowledges that it "does not have the capability to perform a simple computer-based search" to locate records.
Instead, the agency is asking details from passengers such as dates of flights, flight numbers, and other specific information, most of which is the same information being requested by the agency.
FInd out more here.