Tech Law Prof Blog

Microsoft and Symantec Mix It Up Over Vista

Symantec has sued Microsoft to stop Vista from further development.  The suit involves storage of large volumes of data.  Symantec claims that Microsoft is incorporating elements of Veritas (a company acquired by Symantec) technology without authorization.  Microsoft counters that an agreement between the two companies gives Microsoft those rights.  Symantec says not true, that the agreement for use of these technologies has  non-competition elements.  Moreover, Symantec claims that Microsoft filed fraudulent documents with the United States Patent Office in an attempt to stake a claim to the technology.  Microsoft and Symantec have been trying to work this out since 2004.  A lawsuit is a pretty good stick to use for leverage, especially if it threatens one of the two cash cows Microsoft has.

PC World has the sordid details, as does BetaNews, the BBC, the Seattle Times (the suit was brought in federal court there), and the Seattle Post-Intelligencer.  There's nothing about this on the Symantec Press Page, but Microsoft has something on the suit here.

Vista Recommended Hardware Configurations Announced

Plenty of news organizations are reporting on the hardware requirements Microsoft announced for running Windows Vista.  Microsoft is describing two tiers of machines, Vista Capable PCs and Vista Premium Ready Machines.  Vista capable machines will deliver the core experience.  A premium ready machine will deliver the better graphical interface. 

The minimum configurations are:

Capable

• A modern processor (at least 800MHz1).
• 512 MB of system memory.
• A graphics processor that is DirectX 9 capable.

Premium Ready

• 1 GHz 32-bit (x86) or 64-bit (x64) processor.
• 1 GB of system memory.
• A graphics processor that runs Windows Aero.
• 128 MB of graphics memory.
• 40 GB of hard drive capacity with 15 GB free space.
• DVD-ROM Drive.
• Audio output capability.
• Internet access capability.

The Microsoft Vista page that has these details and more is here. 

Blue Security Gives Up

The war of security company against Russian spammer came to an end when Blue Security closed shop under threat of a cyber war from the spammer.  The war was fought initially when Blue Security attacked a spammer with email designed to give back a taste of the same medicine.  Enraged, the spammer initiated a denial of service (DDoS) attack against Blue Security that migrated to Typepad which is the host of this blog.  We reported those details earlier.  The FBI is said to be investigating the previous attacks.

It's sad when spammers can issue intimidation threats that stick.  Information Week has the story.

Net Neutrality Kicks Up in the House

This time, it comes from a measure in the House Judiciary Committee and endorsed by Committee Chair Jim Sensenbrenner. The approach is to embed principles of net neutrality into federal antitrust laws forbidding broadband providers from abusing their market positions.  Sensenbrenner noted that 98% of Americans have at most two choices for broadband access and that duopoly is ripe for anticompetitive practices.  Amendments to similar legislation in the House Energy and Commerce Committee was defeated twice in that Committee.

The subcommittee on the Judiciary Task Force on Telecom and Antitrust  recently held hearings on the net neutrality issue, and they can be located on the Committee's web page here.

The news report of the Judiciary Committee action is here, here, and here.  Musician Moby has become an activist on the issue, favoring net neutrality principles.

XM Sued by Record Labels Over "Downloads"

XM Satellite is being sued by the big four labels over its "Inno."  The hand held device allows subscribers to record broadcasts for later playback.  The record companies are miffed because they see no revenue from this arrangement, claiming that this is the same as iTunes.  XM counters that pay-for download services allow browsing and selection on demand.  For XM, they provide the same capability that radio listeners have had for years, albeit digitally.  One function that analog recording has traditionally not provided is breaking a recording into songs and identifying them by artist.  Perhaps that is closer to a download service after all.

The labels are seeking $150,000 in damages per song copied by listeners.  There are no suits against customers.  XM says that the suit is a ploy to leverage negotiations between the company and the recording industry.  Sirius, XM's competitor, did a license agreement for a similar device.  The context suggests that this suit will end in settlement.  Hanging in the balance, of course, is the status of fair use rights for radio listeners (hint: the RIAA will likely take the position that there aren't any in the digital world) and the business model for radio.  Now the model looks like blanket licensing by corporations to provide some rights to and on behalf of their subscribers in third party music is going to be the way to go.  As for fair use, congress doesn't seem to be in the mood to strike a balance for listeners as they tend not to have an effective lobby.

Speaking of lobbying efforts, check out this page from the Center for Public Integrity to see what broadcast companies contribute to which candidates and politicians.  The radio/tv industry alone gave $9.18 million to members of the government last year alone.  That's a lot of lunch money for members of congress and elected executive candidates who do the "people's" work. 

ABC News has the story on the suit.  Other news services are carrying variations on the story.

BellSouth and AT&T Added to NSA Class Action Suit

Domestic spying concerns are making a lot of people uneasy, except for the 63% or so who say it is a legitimate tool to fight terrorism.  That figure came from an ABC poll conducted last week after USA Today broke the story that several telephone companies provided the National Security Agency with subscriber phone records.  The disclosure brought not just criticism but a class action lawsuit against Verizon, who has denied the claims.  CNN is now reporting that BellSouth and AT&T (the former SBC) have been added as defendants.  According to the story, only AT&T has not denied the claims.  The Washington Post has an additional report on the suit.

The suit is based on a federal law that prohibits the disclosure of phone records with a minimum penalty of $1,000 per disclosure.  The reports indicate that the disclosures were in the billions, which means a huge payoff if this suit ever goes through.  The government is attacking a similar suit filed in San Francisco by the Electronic Frontier Foundation against AT&T with arguments that customers can't prove their phones were tapped and that the case endangers national security.  According to an article in the San Francisco Chronicle, a former AT&T employee described equipment attached to circuits in the SF office that allowed the agency to conduct "vacuum cleaner surveillance of all the data crossing the Internet."  I assume that the data swept up would include this post, since it's initiated through an AT&T DSL account.  Documents were also filed in the suit which added detail to the claim.  AT&T is seeking the return of the documents as trade secrets. 

FCC Commissioner Michael Copps has called for an investigation as to whether phone companies have violated federal law by providing records to the NSA.  As one of the Democrats on the commission, that request will probably go nowhere.

Obviously this has generated a lot of controversy.  The disclosure comes at the time when General Michael Hayden has been nominated to head the CIA.  Some say the the disclosure was timed to damage the good General's chances of heading the agency.  That may or may not be, but the there is no doubt that the safety vs. privacy arguments would rage no matter the timing of this bombshell disclosure.  One would think that there was a way to conduct counter-terrorism without sucking in every call and Internet click by Americans and others.  Some claim that they don't mind because they have nothing to hide.  They should not forget that it's the government that decides what's worth hiding and not them.  Private acts are worth their privacy, even if they are not illegal.

Supreme Court Decides eBay Patent Case: You're Both Wrong on Injunctions

The Supreme Court clarified the use of injunction as a remedy in patent dispute cases.  The case was between eBay and MercExchange L.L.C. over the use of the "Buy It Now" feature on eBay's site.  The District Court found MercExchange's patent valid but refused to issue an injunction.  The District Court justified its refusal on the patent holder not having exploited the technology in practice, but rather only as a licensing company.  The Court of appeals for the Federal Circuit, on the other hand, overruled stating that the general rule is an injunction issuing as a matter of course absent exceptional circumstances.

The Supreme Court disagreed with both positions.  Justice Thomas in a short opinion (5 slip pages) said both courts got it wrong.  The appropriate rule to be applied is the traditional four part test for injunctions:

1. The plaintiff has suffered an irreparable injury;
2. Remedies available at law, such as money damages, are inadequate to compensate for that injury ;
3. Considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted ;
4. That the public interest would not be disserved by a permanent injunction.

Justice Thomas quoted sections of the Patent Act that favored this approach.  The Court's decision was unanimous, with short concurring opinions by Chief Justice Roberts (joined by Justices Scalia and Ginsberg) and Justice Kennedy (joined by Justices Stevens, Souter, and Breyer)

No doubt Research In Motion could have used this opinion in their recent dispute.

The Opinion is here.