Tech Law Prof Blog

LG Announces Combined Blu-Ray, Streaming Video Player

One of the reasons pundits thought that Sony's victory in the HD media war was Pyhrric had to do with streaming video.  There are options out there, such as Apple TV, the Xbox Extender, Amazon's Unbox, the Media PC, and probably others of which I'm not thinking.  So, instead of competing with Sony's Blu-Ray, why not combine a competing service with a Blu-Ray player?  That's what LG is doing with a new model of Blu-Ray player.  They offer streaming video from Netflix as a feature of the player, though as of now, the stream is not hi-def.  Sony can't be thrilled about this.  It's one thing to put a box in someone's home, but using that box to offer an alternative to the hi-def media experience will cannibalize sales of discs.  Is someone really going to pay $20 on up for media that they may watch twice, if that?  Preview on Netflix, and then decide if the content is worth owning.  It's great marketing if you're in the streaming video business, not so great if you're in the disc artifact business.  It also means one less device in the consumer living room for the same functionality.

The service uses a broadband connection for the stream.  The only thing that can put a crimp in this model is for the service providers to start metering Internet access, as Time Warner and other providers (AT&T?) are starting to examine as an option.  Interesting to see how this plays out, what with IP networks serving up their own media offerings.  Look for LG's new Blu-Ray player later on this year.

More from Information Week.  [MG]

Italian Media Company Sues Google, YouTube

Google and YouTube are being sued by Italian media company Mediaset SpA for copyright violation.  Mediaset found some 4,643 videos and clips they owned appearing on YouTube without permission.  Mediaset wants 500 million euros as damages, or about $780 million US.  Mediaset is owned by Italian prime minister Berlusconi.

More on the suit from CNN Money.  [MG]

Computer hacker loses extradition appeal

Gary McKinnon lost his appeal in Great Britain's high court yesterday, and will be subject to extradition to the United States, where he faces charges in the United States for computer hacking.  In fact, "[p]rosecutors allege that McKinnon hacked into than 90 computer systems belonging to the U.S. Army, Navy, Air Force, Department of Defense and NASA between February 2001 and March 2002, causing $900,000 worth of damage.

McKinnon has acknowledged accessing the computers, but he disputes the reported damage and said he did it because he wanted to find evidence that America was concealing the existence of aliens." (quoted from CNN.com)

Aliens?  Perhaps a conspiracy? And an extradition just in time for the X-files movie...

Of course, the United States Department of Justice has their own less interesting and alien-free version of the story, posted here.

[MD]

New Search Engine Cuil

The new search engine, Cuil, debuted Sunday night.  The servers are running slow because of the interest in the offering from ex-Googlers.  Reviews are starting to pop in, and here's one from PC Magazine.  The notable features are that it purports to have indexed approximately 120 billion web pages compared to the estimated 40 billion pages in Google, and a display of pages based on relevancy.  The results page is also fairly attractive in layout and display.

I tried it by looking for a web site I maintain for music projects by me and friends of mine.  The name is fairly unique, though I won't mention it here as I'm not promoting it to anyone.  The search for it in Cuil brought up erratic results based on name variations, and a search for the proper name in quotation marks brought up nothing.  This is likely due to the newness of the engine, though with three times the number of pages in Google, one would hope a search based on an uncommon name would bring that item to the fore.  I even checked Windows Live Search just in case (Microsoft's share of search just went up .000000000001% based on that search) and yes, my site was there.  I am indexed, therefore I am.

Try Cuil out for yourself here.  By the way, Cuil, as is my music site, is indexed in Google.  Look it up. [MG]

FCC Expected to Hit Comcast on Net Management Practices

The FCC will be holding a meeting on Friday, August 1st, where the five commissioners will be considering a memorandum opinion and order addressing Comcast's network management practices.  News reports indicate that there are at least three votes for penalizing Comcast for secretly degrading peer-to-peer applications over the network.  The result of a formal vote will require Comcast to stop blocking traffic and to disclose its network management practices to customers.  Comcast has already done most of this as a result of the complaint against it.  No fine is contemplated.

The Commission order will likely be challenged in court, as Comcast has questioned whether the Commission has the authority to regulate network management practices.  Ars Technica reported an interesting twist on this stand in a California case where Comcast was sued for deceptive advertising, violation of the FCC's traffic management principles, and breach of contract.  Comcast successfully argued that the judge stay the case since jurisdiction with the issues rests with the FCC.  One assumes Comcast's lawyers filed the document with with a straight face.  Expect a long fight over the Commission's authority no matter what. [MG]

Sirius and XM merger approved by FCC

What the  monopoly merger will look like after the buy-out is still unclear, but with the final tie-breaking FCC vote in late Friday night, they are well on their way to one monolithic satellite radio offering for consumers. 

The companies talk about cost savings and more services for their subscribers.  Others had some doubts about this being in the consumers' best interests.

"The long-running regulatory review was watched closely by exasperated investors anxious for a resolution as well as satellite radio customers with questions about what impact the merger would have on their service.

The approval was a major blow for the land-based radio industry, which lobbied hard against the buyout. It was also opposed by consumer groups, various members of Congress and state attorneys general, all of whom argued a satellite radio merger would hurt consumers and was not in the public interest.

"They kept each other on their toes," Democratic commissioner Jonathan Adelstein said of the two companies. "I hope they keep their edge and don't become a fat and happy monopoly."" (quoted from CNN\Money.com)

Yep.  We'll see...

[MD]

Nokia and Qualcomm settle their differences

Finally ending "a bitter legal battle that has lasted nearly three years and spanned three continents" (quoted from CNN.com), Nokia and Qualcomm have agreed to settlement terms.  Nokia has agreed to withdraw an antitrust complaint pending against Qualcomm at the European Commission, just one part of the terms of their closed settlement agreement, and the impact on the value of Qualcomm's stocks was almost immediate. Read more about the Nokia/Qualcomm settlement here.

Of course, that doesn't end Qualcomm's legal issues, as they continue to do battle with "[o]ther companies [that] have complaints before the European Commission, and Qualcomm is fighting in U.S. courts to overturn a possible ban on the imports of phones with its chips after Broadcom Corp. won a patent-infringement case." (quoted from Bloomberg.com) [MD]

Google Hit With Trade Secret Lawsuit Over email Tool

Another lawsuit is filed against Google, this time for misappropriating trade secrets.  LimitNone worked with Google to create and market a tool that helped Outlook users migrate email, calendar, and contact information to Gmail.  Google worked with LimitNone as part of the Google Enterprise Professional Program and helped market the tool.  Google allegedly told LimitNone that is wasn't developing a competing tool.  Well, it seems that Google did develop a competing tool, and it is said to look a lot like LimitNone's product.  Other claims raised in the suit are that Google violated Illinois Consumer Fraud laws.

More here. [MG]

Novell Gets $2.5 Million From SCO

SCO owes Novell $2.5 million in licensing fees for Unix, which is less than the $20 million or so that Novell sought.  Federal Judge Dale Kimball ruled that SCO was entitled to make some licensing deals, but one to Sun was not authorized, hence the award.

More in the Deseret News.  Judge Kimball's opinion is here. [MG]

Another Mac Cloner With a Twist

Another company will potentially fall on Apple's bad list by creating a Mac clone.  The last company, Psystar, got hit with a lawsuit that demanded that all machines sold by the company be recalled.  The latest attempt to clone the Mac comes with a twist:  the company, OpenTech, will sell consumers the hardware without an operating system.  The consumer purchases that from Apple.  The Apple EULA forbids a consumer from installing a copy OS X on anything from Apple branded hardware, but who knows.  OpenTech is prepared to defend itself, probably by saying Apple should attack customers for violating the end-user agreement.  That sets up one of those vicarious liability arguments.  Apple will likely push this one as soon as offending machines hit the market.

More on this from ComputerWorld. [MG]

New York governor signs law designed to restrict video games

Building on the 2007 initiative of former New York Governor Eliot Spitzer, current Governor David Paterson signed into law New York Senate bill s.6401-A.  The bill's stated purpose is to "take steps to crack down on video game violence and combat and reduce children's exposure to violent and inappropriate materials within these games.  Excerpt quoted from the bill's sponsor Andrew Lanza's (R-Staten Island) website here.

The law establishes an advisory council to study the effects of violent video games on children, requires a prominent rating system and parental controls.

Some New York citizens are not happy with the bill..."New Yorkers do not need the state judging which video games are appropriate and which aren't," said New York Civil Liberties Union Executive Director Donna Lieberman. "Parents, not government committees, should be responsible for making those judgments." Quoted from last paragraph here. 

The bill text of New York Senate Bill S.6401-A can be found here. [MD]

At the COPA, No Constitutional Hope-A

The Third Circuit Court of Appeals has upheld the District Court's determination that the Child Online Protection Act, COPA, is impermissibly overbroad in attempting to limit a child's access to commercial pornography.  This is the third time the Appellate Court has reached this conclusion.  Following the mandate from the U.S. Supreme Court, the District Court examined later developments in technology and concluded that filters are a lesser restrictive alternative to COPA.  Moreover, COPA does not apply to foreign web sites, where filters can block that as well as domestic content.  Filters are effective given that a parent can take a flexible approach to what their child can and cannot view, while the law is static (and, did we mention, overly broad?). 

From the Court's opinion:

Unlike COPA, filters permit adults to determine if and when they want to use them and do not subject speakers to criminal or civil penalties.

Indeed.  Other conclusions from the prior litigation, such as COPA is overbroad and vague in some of its definitions and applications have not changed based on the new fact finding.

The full 57 page opinion is here.  Legal documents in the case courtesy of EPIC are here. [MG]

Viacom and Google Settle Discovery Request

In an update to Viacom's YouTube discovery request, and subsequent whirlwind of publicity regarding the private information of YouTube viewer's usernames and IP addressses, Viacom and other parties to the copyright infringement lawsuit, have formally agreed to allow Google to strip YouTube viewer's identifying information before complying with a judge's order for the records.

In a YouTube blog post, the Google subsidiary noted that they had formally reached an agreement with Viacom and they even posted a link to "the legalese!"

You may all breathe easier now.  Your potentially embarrassing YouTube viewing habits are private...for the moment. [MD]

TiVo and Amazon Team Up to Pump Impulse Shopping

TiVo in partnership with Amazon has announced a "feature" where customers can use their remote controls to purchase items featured on selected television shows.  Unlike past interactive television efforts, a viewer can buy something on the fly without missing any of the show that is being recorded.  This is TiVo's way of making nice with advertisers who are annoyed that TiVo users can fast forward through commercials.  This announcement comes with great fanfare as if it were the next great innovation in television viewing.  Maybe, but it's not as if it hasn't happened before.

Wink Communications, among others, tried that with DirecTV and other media providers to create interactive shopping opportunities for viewers.  A little signal would appear over the picture and with a click of a button you could buy that coat Brad Pitt was wearing in the movie you were viewing.  That lasted a little over two years before the partnership ended.  The feature is common in Europe, but never made it big here.  There were a few concerns, such as having a credit card on file somewhere, having purchases and viewing habits tracked and matched with demographics already on file somewhere else.  How different things are today.

Unlike then, this may work now that people are used to shopping on the web, and may already have accounts with Amazon.  The technology has certainly changed as well.  Analog television has its limitations in interactivity.  Digital television offers multiple streams that can serve as marketing conduits in ways that advertisers could only dream of 5 years ago.  Implementation is everything.  The question is whether the consumer can opt in or out of something like this beyond mere self control (don't push that buy button).  An economic slowdown or recession may have more impact on the viability of this service.  We'll know that promoters are on to something when Congress decides to hold hearings on the practice. [MG]

Third Circuit Sends Janet Jackson Nipple Case Back to the FCC

The Third Circuit Court of Appeals has struck down the FCC's $550,000 fine against CBS for displaying Janet Jackson's nipple for nine-sixteenths of a second during the Superbowl broadcast of February 1, 2004.  The commercials didn't cost that much.

From the opinion:

At the time the Halftime Show was broadcasted by CBS, the FCC’s policy on fleeting material was still in effect. The FCC contends its restrained policy applied only to fleeting utterances – specifically, fleeting expletives – and did not extend to fleeting images. But a review of the Commission’s enforcement history reveals that its policy on fleeting material was never so limited. The FCC’s present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.

The Court follows this with a pointed history of Commission enforcement actions that did not impose forfeiture on a respondent in similar circumstances.  The full 102 page opinion is here. [MG]

Yahoo! and Icahn Settle Proxy Fight, Questions Linger

Carl Icahn has settled his proxy fight with the Yahoo! board.  The settlement calls for the board to expand from nine to eleven members, and Icahn to get three seats.  Eight of the existing nine members will run for re-election with Icahn voting his shares for their retention.  The proxy fight may have turned in Yahoo!'s favor when institutional investor Legg Mason decided to vote for the current board.  The fear was that absent an iffy sale to Microsoft, there was no plan B for running the company.  Even if the search part of Yahoo! was sold off, what would happen to the rest of the company? 

Ending the proxy fight solves one problem, but it doesn't answer others.  Microsoft has said that it couldn't cut a deal with the current board in place.  Does a three seat Icahn led faction change anything?  Has Steve Ballmer locked himself into a position on this?  And, absent a sale, how will Yahoo! actually come up with a plan to enhance shareholder value?  Icahn and Jerry Yang are not exactly best buddies, so managing the company with the new board structure should be endlessly entertaining for the rest of us.  Then there is Google.  Yahoo! stands to make money from their collaboration in ad sales on Yahoo! properties, though Google missed its analyst targets for financials in the last reporting period.  Will that affect any scrutiny by the DOJ and Congress?  Stay tuned for developments. [MG]

Google Ad Revenue Share Up, and Spam is Most of Your Email

Statistics, we've got statistics.  Google's share of online ad market revenue is 77%.  Google really knows how to monetize search, but we all knew that.  Yahoo! comes in at 17.8% and Microsoft at 4.8%.  Microsoft is trying to buy the wrong company.  More here.  And, figures show that spam made up 81.5% of all email sent in June.  Yow!  I might even be able to read some of it if I knew how to read Chinese or Cyrillic characters.

Google Search Share Up, Microsoft and Yahoo! Squabble

Google's share of search is just about 70% according to the latest figures from Hitwise.  Yahoo! and Microsoft dropped fractions of a percent to 19.62 and 5.46 respectively.  That cash bribe rebate program announced a while back for Live Search has really brought them in.  This is all on the heels of news that Microsoft made a Carl Icahn brokered deal for the Yahoo! search function over the weekend which the current Yahoo! board rejected.  The reports are that Microsoft gave a 24 hour take it or leave it condition with no opportunity to negotiate.  There are various interpretations from Microsoft and Yahoo! as to how the deal's financials would stack up, with each side blaming the other for failure.  This sets the stage for the proxy fight that may determine whether Yahoo! stays an independent company, or a shell of its former self.

What happens to Yahoo! if it sells only search.  Can a Icahn led Yahoo! operate profitably under these circumstances?  What favors Yahoo!'s current board is the Icahn doesn't seem to have a plan B for running the rest of the Yahoo! properties.  Yahoo! stockholders will get some return on the sale for search to Microsoft, but may well be stuck with limited revenues from whatever is left, which likely means stock that is worth even less than today.  The best hope is that Icahn can deliver a sale of the entire company to Microsoft at a decent price.  That may be significantly less that the $33 share rejected by the Yahoo! board, but more than the stock is currently worth.   

As for the current board's approach, an advertising deal with Google, the United States Senate is holding a hearing on that, not that the Senate has anything to say about it as a regulatory matter.  The Committee will hear from representatives from Google (for), Yahoo! (for), Microsoft (against), AT&T (against), and Askthebuilder.com (for).  The Senate page for the hearing is here.

Tiffany Loses Infringement Suit Against eBay

eBay has successfully defended a suit brought by Tiffany for trademark infringement and sale of counterfeit Tiffany goods on the auction site.  The Court describes the issues and its conclusions in a series of paragraphs prior to the analysis.

From the lengthy court opinion:

Specifically, Tiffany alleges that hundreds of thousands of counterfeit silver jewelry items were offered for sale on eBay’s website from 2003 to 2006. Tiffany seeks to hold eBay liable for direct and contributory trademark infringement, unfair competition, false advertising, and direct and contributory trademark dilution, on the grounds that eBay facilitated and allowed these counterfeit items to be sold on its website.

Tiffany acknowledges that individual sellers, rather than eBay, are responsible for listing and selling counterfeit Tiffany items.  Nevertheless, Tiffany argues that eBay was on notice that a problem existed and accordingly, that eBay had the obligation to investigate and control the illegal activities of these sellers — specifically, by preemptively refusing to post any listing offering five or more Tiffany items and by immediately suspending sellers upon learning of Tiffany’s belief that the seller had engaged in potentially infringing activity. In response, eBay contends that it is Tiffany’s burden, not eBay’s, to monitor the eBay website for counterfeits and to bring counterfeits to eBay’s attention. eBay claims that in practice, when potentially infringing listings were reported to eBay, eBay immediately removed the offending listings. It is clear that Tiffany and eBay alike have an interest in eliminating counterfeit Tiffany merchandise from eBay — Tiffany to protect its famous brand name, and eBay to preserve the reputation of its website as a safe place to do business. Accordingly, the heart of this dispute is not whether counterfeit Tiffany jewelry should flourish on eBay, but rather, who should bear the burden of policing Tiffany’s valuable trademarks in Internet commerce.

Having held a bench trial in this action, the Court issues the following Findings of Fact and Conclusions of Law, as required by Rule 52(a) of the Federal Rules of Civil Procedure. Specifically, after carefully considering the evidence introduced at trial, the arguments of counsel, and the law pertaining to this matter, the Court concludes that Tiffany has failed to carry its burden with respect to each claim alleged in the complaint.  First, the Court finds that eBay’s use of Tiffany’s trademarks in its advertising, on its homepage, and in sponsored links purchased through Yahoo! and Google, is a protected, nominative fair use of the marks.

Second, the Court finds that eBay is not liable for contributory trademark infringement. In determining whether eBay is liable, the standard is not whether eBay could reasonably anticipate possible infringement, but rather whether eBay continued to supply its services to sellers when it knew or had reason to know of infringement by those sellers. See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 854 (1982). Indeed, the Supreme Court has specifically disavowed the reasonable anticipation standard as a “watered down” and incorrect standard. Id. at 854 n.13.  Here, when Tiffany put eBay on notice of specific items that Tiffany believed to be infringing, eBay immediately removed those listings. eBay refused, however, to monitor its website and preemptively remove listings of Tiffany jewelry before the listings became public. The law does not impose liability for contributory trademark infringement on eBay for its refusal to take such preemptive steps in light of eBay’s “reasonable anticipation” or generalized knowledge that counterfeit goods might be sold on its website. Quite simply, the law demands more specific knowledge as to which items are infringing and which seller is listing those items before requiring eBay to take action.

The result of the application of this legal standard is that Tiffany must ultimately bear the burden of protecting its trademark.  Policymakers may yet decide that the law as it stands is inadequate to protect rights owners in light of the increasing scope of Internet commerce and the concomitant rise in potential trademark infringement.  Nevertheless, under the law as it currently stands, it does not matter whether eBay or Tiffany could more efficiently bear the burden of policing the eBay website for Tiffany counterfeits — an open question left unresolved by this trial. Instead, the issue is whether eBay continued to provide its website to sellers when eBay knew or had reason to know that those sellers were using the website to traffic in counterfeit Tiffany jewelry. The Court finds that when eBay possessed the requisite knowledge, it took appropriate steps to remove listings and suspend service. Under these circumstances, the Court declines to impose liability for contributory trademark infringement.

Third, the Court finds that Tiffany has failed to meet its burden in proving its claims for unfair competition. Fourth, in regard to Tiffany’s claim for false advertising, the Court concludes that eBay’s use of the Tiffany trademarks in advertising is a protected, nominative fair use of the marks.  Finally, the Court finds that Tiffany has failed to prove that eBay’s use of the TIFFANY Marks is likely to cause dilution. Even assuming arguendo that Tiffany could be said to have made out a claim for trademark dilution, the Court finds that eBay’s use of the marks is protected by the statutory defense of nominative fair use.

Accordingly, the Court hereby enters judgment for eBay.

Yes, it's trademark law and not copyright, but doesn't some of the issues described sound a lot like Viacom and Google?  Just asking.

The text of the full 66 page opinion, Tiffany (NJ) Inc. and Tiffany and Company v. eBay, Inc. 04 Civ. 4607 (RJS) from the Southern District of New York, is here.

No "iPod" Tax for Japan

Legislation in Japan that would attach a tax on portable media players to benefit artists is dead.  Seems they have a pretty good electronics manufacturer lobby over there.  Will this development make Hi Hi Puffy Ami Yumi sad?  CNNMoney has the story.

Bush Signs FISA Bill, ACLU Files Suit

The Senate passed the controversial FISA Amendments Act of 2008 yesterday.  It's controversial in that it includes the telecom immunity provision that the President said was crucial to the law.  He signed it today.  For the record, Obama voted for the bill, Hillary voted against, and McCain snoozed through the whole thing without casting a vote.  Had he been anywhere near the Capitol he would have voted for it.  So, which one of these three is looking Presidential?  The final tally was 69 for and 28 against.  The ACLU is filing suit against the act on the grounds that it violates the Fourth Amendment's ban on unreasonable searches and seizures.  The complaint is here.

Google Government

A little note on the CNET site goes into some detail of predicting what Google services may be in the offing.  The analysis come from looking at the traffic generated from Google searches and broken into 20 industrial categories.  The analysis predicted Lively, Google's new virtual world service.  It suggests that there may be a Google Autos or a Google Music coming.  One category not cross-referenced to a Google service is government.  The comment in the note said we'd probably not see a Google Government just yet.  That's not quite true.  There is a Google Government site.  It's just not publicized.  Or linked from the "More" page.

I had to search for it in Google and it shows up here and has its own FAQ here.  Strange that Google doesn't want you to know about it. To clarify, government in this case means federal government.

Viacom Discovery Request Troubling

The announcement that Viacom got a court to bless its discovery request for YouTube user data was a little troubling for some.  Viacom gets a database of what videos were watched, the IP addresses that access them, and the user names of the viewers, and a copy of every video removed from YouTube.  What Viacom doesn't get is the source code to Google's search function, th source code to YouTube's copyright filter, and a copy of every private video hosted on YouTube.  The data should come to about 12 Terabytes.

The privacy issue flagged concerns that Viacom would start to file infringement suits against individual users as does the RIAA.  The judge apparently limited the use of the evidence to proving liability against Google for copyright infringement and nothing more.  Viacom, perhaps stung by the bad publicity surrounding the request, made a statement that it would protect user privacy by not getting personally identifiable user information from Google.  Rather, Viacom would take annonymized information that would differentiate users.  This may bring some relief to the privacy questions, but it still doesn't sit well given what Viacom wanted to get compared to what they did get as discovery.

Microsoft Buyout of Yahoo! Heating Up

This Yahoo! proxy fight is going to be a real mess now that Carl Icahn and Microsoft have both issued letters suggesting that Microsoft is ready to do a deal if a new board is elected.  No one knows whether that deal would be for Yahoo!'s search business or for the whole company.  It's no secret that the only component Microsoft really needs is search.  The rest of Yahoo! is fluff to Microsoft, even if it is the one of the most heavily trafficked sites on the web.  Yahoo! is definitely a company in decline in spite of its moves to open its platform.  The profit is in search, and even with a 21% market share Yahoo! doesn't make enough in comparison to Google.

The Yahoo! stockholders better hope that Microsoft buys the entire company if a new slate of directors is elected at the next board meeting.  There may not be enough business left in the other Yahoo! services to justify investing once search is gone.  Icahn may get his money out of the deal. Microsoft may buy the market share it can't seem to grow no matter how hard it tries.  Yahoo!, though, will be gone gone gone as a viable web business.  Say hello to AOL-land, Yahoo!.

Icahn's letter to Yahoo! stockholders is here and the subsequent Microsoft statement is here, both via the Wall Street Journal.  Fortune has a great article on why Microsoft will win Yahoo!'s search business.

Is Google Our Mirror? No Answer Yet

The obscenity case that attempted to use Google searches as a measure of community values has been settled out of court.  More in the Washington Post.

New Tool Allows Flash Files to be Indexed in Search Engines

Flash files will be indexed a bit better in Google, Yahoo! and other search engines thanks to Adobe.  The company is creating a  search engine optimized version of the Flash player.  The functionality allows it to read and index text and links contained in the file. 

More on this from InformationWeek.  The Adobe press release is here.