Tech Law Prof Blog

Will Digital Television Make It To Cell Phones?

Now that the transition to digital television is getting close, there is one market in the United States that is getting shut down before it even gets a chance to fly, and that is free TV on a cell phone.  Sure, some carriers offer a number of television signals and shows via their handsets, but that comes with a fee.  Other countries take a different route when it comes to analog signals. South Korea and Japan, for example, have cellphones that receive free analog television on their screens.  China is keeping its analog signals around until 2015 just to keep that market going.  Instead of merging (only) music players with phones, they merged those cheap hand-held TVs that are popular with sports fans.  We never got that far here as carriers control what handsets are allowed on their networks, and something free should never be allowed to compete with something that has a fee.

That may change with the FCC's rules requiring carriers to accept open devices as a condition for using soon to be vacated broadcast spectrum.  The current crop of digital televisions are beautiful.  I'm always amazed at the clarity of,say, a WGN Cubs game broadcast in high definition on a large screen.  But why settle for this as only a living room experience?  While digital converters for analog televisions are large, they represent the infancy of this technology.  The standards group that handles digital signals is already working on a receiver standard for hand-held devices.  Broadcasters are thrilled to extend their ad presence, though carriers might not care to have something compete with their paid service.  It might not matter if someone developed a small, hand-held, digital television and that same company or another (Apple?) figured out that it would be a great feature to merge into a cell phone.

Yahoo News has more information on this issue.  [MG]

OOXML Is Now a Standard

The ISO rejected appeals to reconsider making Microsoft's Open Office XML format a standard.  More in Information Week.  [MG]

Friday Fun

Check Out IT World's Lame and Lamer:  10 Dumbest Viral Marketing Campaigns.  Some of them are downright painful in their conception.  Find it here.  [MG]

Appeals Court Upholds Open Source Licensing

The Federal Circuit Court of Appeals upholds open source licensing for software.  The analysis is in BetaNews, with links to the opinion and other litigation documents.  [MG]

More Fake Spam

Those fake CNN Alerts mentioned in Monday's blog posts are now joined by fake MSNBC Alerts.  Be advised.  [MG]

Google (yawn) Tops Lastest Search Market Share Figures

July search market share is in.  Hitwise says Google is up to 70.77%, Microsoft is down to 5.36%, and Yahoo declined to 18.65%.  Note to Steve Ballmer, keep those investments coming.  Microsoft's share of search might increase a few hundredths of a percent for the $2 or $3 billion the company is pouring into the effort.  [MG]

MBTA to MIT Student Hackers: Let's Talk

Here's the latest on the tiff between the MIT students who have discovered vulnerabilities in the Mass Bay Transportation Authority's fare cards and the MBTA.  There's a lot of gnashing of teeth over the prior restraint and First Amendment issues.  The MBTA is trying the "arbitration" angle, which would help them not lose the case on Constitutional grounds.  That is not appealing to the EFF, which is representing the students.  Declan McCullagh has a thorough analysis at CNET, and links to relevant documents in the case.  [MG]

Another Patch Tuesday from MS

It's patch Tuesday for Microsoft, and today it's a big one.  There are 26 vulnerabilities to correct, including two with exploits in the wild.  More details from Computerworld.  [MG]

Fake CNN Alerts Spread Malware Via Fake Flash

Are CNN Alerts showing up in your mailbox lately?  Unless you actually signed up for Alerts, they are fake and clicking on a link to a story will install malware on your machine.  You may see a message that asks you to install an updated Flash client.  Don't do it.  That client is a fake as well.  Details are in PC World, and Information Week.

iPhone Has A Kill Switch

Steve Jobs confirms the existence of a kill switch in the iPhone.  He justifies it in case of a rogue application that can steal a customer's personal data.  He hopes Apple never has to use it.  And if Apple does use it, and depending on the circumstances, what would the customer base think?  More in the Wall Street Journal.

DNS Software Flaws

It seems as though the patch for the flaws in DNS software has flaws of its own.  Read about it in the New York Times.

Another Patent Lawsuit Against Google

This is a headline we'll be using forever.  This time it's over the method for reporting statistics to advertisers over ads placed on third party sites.  The story and related implications (yes, there are some) are in Information Week.

Pennsylvania Woman Pleads Guilty to Web Distribution of Obscenity

The case involved fictional stories of child molestation and worse that appeared as text or audio files.  While the subject of the stories is horrific, there are some who claim that what happened here was protected constitutional speech, and that the prosecution was wrong.  Read more in Network World.

The Internet is a Vast Place of Stupidity At Times

Here are two stories, one and two.  One is real, one isn't.  You decide which is which.

Cablevision Wins Appeal on Remote DVR Service

Does it make a difference when someone records a television broadcast for personal use that the recorder happens to be in cable company's tech center rather than the living room?  The Second Circuit said no, reversing a District Court's ruling to the contrary.  Cablevision decided to offer DVR services remotely to customers.  There are a lot of advantages to this model.  Cablevision could upgrade the equipment without disrupting services, and customers with older set top boxes could take advantage of DVR capabilities without acquiring new equipment.  There was just one problem:  content owners thought that offering DVR services remotely violated their copyrights.  Programs sent to the Cablevision servers passed through a buffer (albeit at about a second or less before being overwritten by the next packet) and, allegedly, that constituted an unauthorized copy.  The replay allegedly was an unauthorized public performance.

From the Court's opinion:

In the district court, plaintiffs successfully argued that Cablevision’s proposed system would directly infringe their copyrights in three ways. First, by briefly storing data in the primary ingest buffer and other data buffers integral to the function of the RS-DVR, Cablevision would make copies of protected works and thereby directly infringe plaintiffs’ exclusive right of reproduction under the Copyright Act. Second, by copying programs onto the Arroyo Server hard disks (the “playback copies”), Cablevision would again directly infringe the reproduction right. And third, by transmitting the data from the Arroyo Server hard disks to its RS-DVR customers in response to a “playback” request, Cablevision would directly infringe plaintiffs’ exclusive right of public performance.

The Second Circuit addressed each of these.  As to the buffer issue, the Court rejected the notion that the buffer content represented fixed media for a period of more than transitory duration as stated in §101 of the Copyright Act.  The Court noted that the District Court relied on precedent that had not considered the duration element of §101.  The Court also rejected the United States Copyright Office’s 2001 report on the Digital Millennium Copyright Act which it said essentially wrote the duration requirement out of the statute in its interpretation.  "Accordingly, the acts of buffering in the operation of the RS-DVR do not create copies, as the Copyright Act defines that term."

The Court reasoned that Cablevision could not be a direct infringer when unique copies of programs were recorded at a customer's request merely by making the system available.  That fact may be relevant in an action for contributory infringement, which was not argued by either party.  The District Court likened the actions by Cablevision to a copy shop that makes course packs for faculty.  The Appeals Court said the analogy was more like a store proprietor who gave unfettered access to a copy machine within the store.  On this issue the Court found that copies were made by the customer and that did not warrant imposing liability on Cablevision.

The Court also concluded that as the recordings were unique per customer, and could only be played back by that customer on his or her own equipment, these replays did not constitute an unauthorized performance "to the public."

The opinion is Cartoon Network LP, et al. v. CSC Holdings v. CSC Holdings, Inc. and Cablevision Systems Corporation, 07-1480-cv(L) & 07-1511-cv(CON), August 4, 2008.

Internet providers under microscope for tracking customers

Senior members of the House Energy and Commerce Committe are questioning the tracking patterns of some of the largest Internet providers in the United States.   A letter was sent to each company asking for specific information on how the company tracks and then customizes their advertising content to their customers' online usage.

"The request comes amid rising scrutiny of the practice, known as deep-packet inspection, or DPI, by lawmakers and consumer advocates. 

The letters were sent to more than 30 online companies, including large broadband providers such as Comcast Corp, AT&T Inc and Verizon Communications Inc, as well as search giant Google Inc and Microsoft Corp.

"We are interested in the nature and extent to which you engage in such practices, and the impact it could have on consumer privacy," said the letter from Energy and Commerce Committee Chairman John Dingell and ranking committee Republican Joe Barton." (quoted from MSNBC.com/Reuters here)

Mining your customer's information without permission to customize advertising and make money?  Unheard of! 

...except by everyone who uses the Internet, of course.

In a fit of consumer protection, Mass. Dem. Rep. Edward Markey stated that Internet providers should be required to get their customers' permission before tracking them.  That would be lovely, Rep. Markey.  Keep on them!

You may download and read the Dingell letter sent to the Internet providers from this LA Times webpage. [MD]

Control and Track Employee Web Habits

At last, a new service that controls and monitors employee behavior on the web.  Welcome to the brave new world of Zscaler, a security company that places corporate control of computers in the cloud, acting as a proxy and filtering service so the tech department doesn't have to.  Sometimes the problem is not what comes into the network, but what goes out and where.  YouTube doesn't have to be the office time-waster if employees can't access it.  Zscaler addresses that and more.  Human Resources departments take note.

Comments on the technology from the New York Times. [MG]

Where to Find Comments on ACTA

The Anti-Counterfeiting Trade Agreement chugs along, with comments by rights holders that urge imposition of liability on ISPs for failing to block pirated material, among others.  Another provision sought by the RIAA would hold the principle of "making available" equaling infringement the legal standard.  Not all courts agree with that one.  Another suggested provision would conflict with European interpretation of privacy law, that being IP addresses are personal information not subject to collection.  That would change if the content providers get their way.  It's hard to identify an online pirate if they can keep their IP addresses private.

Comments from various stakeholders are available here from the Office of the U.S. Trade Representative.  [MG]

It's Official, FCC Slaps Comcast

Well, on a 3 to 2 (the Chair and two Dems in the majority) vote, the FCC ordered Comcast to be more transparent in its broadband network management, though no fine was issued.  Comcast, as does it's industry supporters, disagrees with the Commission's determination.  Comcast wants every customer to have a positive Internet experience, as long as the definition of positive remains in their control.

From the FCC Press Release:

The Commission rejected Comcast’s defense that its practice constitutes reasonable network management. While Comcast claimed that it was motivated by a desire to combat network congestion, the Commission concluded that the company’s practices are ill-tailored to serve that goal for many reasons: they affect customers who are using little bandwidth simply because they are using a disfavored application; they are not employed only during times of the day when congestion is prevalent; the company’s equipment does not target only those neighborhoods suffering from congestion; and a customer may use an extraordinary amount of bandwidth during periods of network congestion and will be totally unaffected so long as he does not utilize an application disfavored by Comcast.

Statements from all five commissioners are available at the main FCC web page. Expect the expected court challenge.  [MG]