Friday, July 17, 2009

My Last Post on the Tech Law Prof Blog

This will be my last post on the Tech Law Prof Blog.  I've recently signed on as co-editor of the Law Librarian Blog and I've found it increasingly difficult to contribute to both and provide thoughtful news and commentary.  After discussing the situation with our general editor, Joe Hodnicki, I'll be devoting full efforts to posting on the Law Librarian Blog.    I understand that there will not be a new editor for this blog.  I'll continue to cover tech news and events there.  I encourage everyone to visit the Law Librarian Blog for future tech news.

I want to thank everyone who has visited and commented here over the last four years.  It's been fun and a bit wearing all at the same time.  Thanks for your time and for reading what I've had to say these past years,

Mark Giangrande

July 17, 2009 in Weblogs | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 15, 2009

Add Spam to Death and Taxes

What can anyone say about email spam?  My eyes glaze over my inbox sometimes because of the huge amount of sexual, pharmaceutical,or banking transaction come-ons.  Moreover, they come in languages and alphabets I'll never understand.  Sometimes they even purport to come from me to me, and probably to a lot of other people.  It seems easy to harvest email addresses from web site contact information these days.  According to the latest MessageLabs report, spam traffic accounted for 90.4% of all email sent.  That's 1 for every 1.1 emails sent globally.

Does this make any money?  The answer is yes.  The Messaging Anti-Abuse Working Group (MAAWG) issued a report last month on a survey they sponsored regarding spam.  Insights Worldwide Research conducted 800 interviews among general consumers across the United States and Canada.  400 of the interviews were via telephone, and the other 400 were conducted online.  The interviewees were screened so as not to include technicians or security experts.  One in six have responded to spam messages.  Of those 12% were interested in the products or services advertised.  Insert your favorite joke about P.T. Barnum here.  The lesson is spam obviously makes enough money for bad people to continue to flood mailboxes with it.  Another is that spammers tread where legitimate manufacturers fear to go or legally cannot.  There appears to be a market that only spammers can tap.

The MAAWG Report is here.  The latest MessageLabs Intelligence Report for email trends is here.  An article with more details about the MAAWG Report is here from Ars Technica.

July 15, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, July 9, 2009

Round Up of Analysis on the Google Chrome OS Announcement

This is a selected round up of views on the significance of what Google's entry into the web OS market means to consumers and to Microsoft.  I published my thoughts yesterday.  Here are more from others:

(CNET) What Chrome OS has on Windows that Linux doesn't, by Stephen Shankland.

(Ars Technica) Cloud computing promise still stormy with reliability issues, by Chris Foresman, Jon Stokes.

(Ars Technica) Google's Chrome OS: what it means, why it matters, by John Timmer.

(Wired, via CNN) Odds are stacked against Chrome OS's success, by Priya Ganapati

(PCMag) 10 Questions for Google's New Chrome OS, by Lance Ulanoff.

(PCWorld) Google: The World's Most Successful Failure?, by David Coursey.

(InfoWorld) Google OS may force Microsoft to reinvent Windows, by Elizabeth Montalbano

July 9, 2009 in Google | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 8, 2009

Some Thoughts on the Google Chrome OS Announcement

The announcement  by Google of the Chrome OS penetrated well beyond the tech press into the mainstream.  The news penetrated the stock market as well.  Google was up and Microsoft was down.  This is a development that catches the attention of a general public that considers Microsoft and Windows as synonymous.  Microsoft has a lot of products out there, but let's face it:  Windows and Office are the public face of Microsoft.  Maybe search will join that duo in a few years, but it will be a long hard crawl for Bing to get past also-ran respectability.  Google challenged Microsoft Office with Google Apps and made minor dents in the franchise, but only enough to annoy Microsoft in a way that Star Office and Open Office could not.  It didn't help Microsoft that Google's alternative was strictly online.  Microsoft talked a good line about software as service, but just try porting every feature of Word to web access.  Now try the same thing and maintain the same revenue stream.  As long as Google Apps are a minor annoyance, the franchise is safe.

Now Google is attacking Microsoft where it lives.  Will Google be successful?  The company has a better chance than the alternatives for no other reason than it is a known quantity among consumers.  Note that Apple's share of the OS market is small in comparison to Microsoft.  That's because Apple wants to control the entire computing experience by keeping the OS tied to Apple machines.  Not so with Google's OS.  Google is aiming it for x86 and ARM chips.  Netbooks in particular are the target.  These are small, not very powerful machines that can still run Internet access quite well.  Does processing power matter so much if applications are web based?  It may to Microsoft who is trying to leverage the netbook platform as if it were an embarrassing family member.  First was the the lame attempt to limit the number of applications Windows 7 could run at one time on a netbook to three.  Netbooks would only be licensed to run the Windows 7 Starter Edition requiring an upgrade by the consumer to the full, unencumbered, OS.  That fell by the wayside.  Now the limits are on appearances and other little things, with consumers not able to customize the desktop.

Google is a viable alternative in that market.  The Google desktop OS is based on Linux which is popular with the tech crowd but not with mainstream consumers.  Every tech article I've ever read on Linux praises Ubuntu, as an example, for stability, installation, ease of use and more.  There is a strong thread through these articles and comments attached thereto that Ubuntu could be a serious challenger to the Windows desktop.  I've always felt that this notion is wrong, if for no other reason than consumers like to be hand-held when it comes to tech problems.  Hardly anyone has to understand Windows to use and install it.  Give that one to Microsoft.  Windows is a standard whether tech support comes from Microsoft, Dell, HP, or someone else.

Google adds something to the Windows alternative that the Linux community never had (and likely never will), which is a mainstream customer support for non-tech customers.  I'm assuming that will be in place because the OS will never succeed without centralized control over features and a support structure.  Both are essential for mainstream acceptance.

Microsoft will fight back, of course.  Expect to see more advertising for Windows 7 and Office than ever before.  A more scary possibility is Microsoft asserting the alleged 200+ patent violations claimed in Linux.  It's one thing to try and sue a band of rebels scattered throughout the galaxy (if the Star Wars analogy fits).  It is quite another to sue a fierce competitor who is undercutting your main source of revenue.  This development has the potential to get very interesting very quickly.

July 8, 2009 in Google | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 7, 2009

New Tech Papers From Bepress

From the announcement:

Announcing the Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology), part of the bepress Legal Repository found at

PUBLISHER: The Berkeley Electronic Press


Molly S. Van Houweling "Author Autonomy and Atomism in Copyright Law"

Pamela Samuelson "What Effects Do Legal Rules Have on Service Innovation"

Paul M. Schwartz "The Future of Tax Privacy" 

Pamela Samuelson and Tara Wheatland "Statutory Damages in Copyright Law: A Remedy in Need of Reform" 

Paul M. Schwartz "Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes' Jorde Lecture"

Paul M. Schwartz "Privacy and Preemption"

Pamela Samuelson "Unbundling Fair Uses"


Molly S. Van Houweling, "Author Autonomy and Atomism in Copyright Law" (June 23, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 71.


The power and ubiquity of personal computing and the Internet have enabled individuals - even impecunious amateurs - to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law - insisting on ownership of their rights and controlling the ways in which those rights are licensed to others. Facebook users are demanding ownership of their online musings. Scholars are archiving their research online and refusing to assign their copyrights to publishers. Independent musicians are streaming their own songs and operating without record companies. Organizations like the Free Software Foundation are encouraging individual authors to manage their copyrights in innovative ways.

When the myriad individual authors empowered by today's ubiquitous digital technology claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call "copyright atomism" - the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law, and of idiosyncratic permutations of those rights. The information and transaction costs associated with atomism could hamper future generations of technology-fueled creativity and thus undermine the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public.

In this project I aim to place contemporary copyright atomism in historical and doctrinal context by documenting copyright law's previous encounters with proliferated, distributed, and fragmented copyright ownership. Along the way I examine how copyright law has encouraged and discouraged atomism and managed its consequences. This history demonstrates the enduring relevance of my concerns within copyright policy, highlights countervailing interests, and provides a framework for thinking about how to alleviate the unfortunate consequences of atomism - and how not to.

Pamela Samuelson, "What Effects Do Legal Rules Have on Service Innovation" (June 23, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 70.


Intellectual property, contract, and tort laws likely have effects on levels of innovation in service sectors of the economy. Legal rules that are too strong or too strict may discourage investment in service innovation; yet, rules that are too weak or too loose may result in suboptimal investments in sound innovation. Intellectual property protections have traditionally been quite strong in protecting innovation in manufacturing sectors, but much less so in service sectors. Services have, for example, traditionally been unpatentable because they were perceived to be non-technological. Whether digital information services, such as web services, should be patentable is currently unsettled and highly controversial. Contract and tort rules are currently quite strict as to manufactured goods, but less so as to services. The emergence of digital information services raises questions about whether existing contract and tort rules governing goods or services should be applied to them, or whether some new legal rules are needed to promote innovation in digital information services and social welfare more generally.

Paul M. Schwartz, "The Future of Tax Privacy" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 69.


This essay considers the past, present, and future of tax privacy. Regarding the past, it took until 1976 for the concept of tax privacy to be explicitly established in statutory law. Congress established this concept in Section 6103 of the Internal Revenue Code, but has also made it subject to numerous exceptions. In the present, much personal financial information is now accessible out of the tax consent and is regulated by other statutes and regulations. This result has made the area of tax privacy somewhat less exceptional today as a regulatory area than in the past. Finally, in the future, tax information in the electronic age will be subject to the same critical issues, such as those involving data security, as other personal information. In conclusion, tax information remains important, but is increasingly subject to the same forces-- legal and technical-- as other personal information.

Pamela Samuelson and Tara Wheatland, "Statutory Damages in Copyright Law: A Remedy in Need of Reform" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 68.


U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.

This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

Paul M. Schwartz, "Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes' Jorde Lecture" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 67.


This Essay responds to Stephen Holmes' Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of "public liberty" by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right--a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.

Through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA), this Essay analyzes a number of Holmesian concepts through. Its Part I describes the background of FISA, the National Security Agency's (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory "fix" that has expired, and the FISA Amendments Act of 2008, which remains in effect. Its Part II turns to an analysis of the challenges to private and public liberty posed by the NSA's surveillance. This Part is organized around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.

Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government's performance by crafting new informational and deliberative structures for it.

Paul M. Schwartz, "Privacy and Preemption" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 66.



A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory approach with that of the European Union (E.U.) and possibly minimize international regulatory conflicts about privacy. This essay argues, however, that it would be a mistake for the United States to enact a comprehensive or omnibus federal privacy law for the private sector that preempts sectoral privacy law. In a sectoral approach, a privacy statute regulates only a specific context of information use. An omnibus federal privacy law would be a dubious proposition because of its impact on experimentation in federal and state sectoral laws, and the consequences of ossification in the statute itself. In contrast to its skepticism about a federal omnibus statute, this essay views federal sectoral laws as a promising regulatory instrument. The critical question is the optimal nature of a dual federal-state system for information privacy law, and this essay analyzes three aspects of this topic. First, there are general circumstances under which federal sectoral consolidation of state law can bring benefits. Second, the choice between federal ceilings and floors is far from the only preemptive decision that regulators face. Finally, there are second-best solutions that become important should Congress choose to engage in broad sectoral preemption.

Pamela Samuelson, "Unbundling Fair Uses" (January 6, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 65.


Fair use has been invoked as a defense to claims of copyright infringement in a wide array of cases over the past thirty years, as when someone has drawn expression from an earlier work in order to parody it, quoted from an earlier work in preparing a new work on the same subject, published a photograph as part of a news story, made a time-shift copy of television programming, photocopied a document for submission as evidence in a litigation, reverse engineered a computer program to get access to interface information, cached websites to facilitate faster access to them, or provided links to images available on the Internet, just to name a few.

The wide array of fair use cases has led many commentators to complain that fair use is unpredictable. This Article argues that fair use law is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns, or what this Article will call policy-relevant clusters. The policies underlie modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth-telling or truth-seeking, competition, technological innovation, and privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is likely to be fair or unfair. Policy-relevant clustering is not a substitute for appropriate consideration of the statutory fair use factors, but provides another dimension to fair use analysis that complements four-factor analysis and sharpens awareness about how the statutory factors, sometimes supplemented by other factors, should be analyzed in particular contexts.

Parts I through V mainly provide a positive account of how fair use has been adjudicated in a variety of contexts and suggestions about factors that should be given greater or lesser weight in certain fair use policy clusters. Its articulation of the policy-relevant clusters into which the fair use cases typically fall should not, however, be understood as attempting to limn the outer bounds of fair use or to foreclose the development of new policy-relevant clusters. Part VI offers a more normative account of fair use as an integral and essential part of U.S. copyright law that can, in fact, encompass the wide range of fair uses discussed in the Article. It also recaps the key lessons from this Article's qualitative assessment of the fair use case law and points to some encouraging trends in recent cases.

July 7, 2009 in Papers and Scholarship | Permalink | Comments (2) | TrackBack (0)

Monday, July 6, 2009

Fire Disrupts Bing Travel - Did Anyone Notice?

I note that a fire in Seattle last week took down the Bing Travel Site.  It took more than a day to get the site back up.  What I missed were stories that suggested that Microsoft was unreliable, or could not be trusted to provide regular service.  Google certainly faced that scrutiny when some of its services stopped working for a few hours.  Or maybe not too many people noticed that Bing travel was down.

July 6, 2009 in Search Engines | Permalink | Comments (0) | TrackBack (0)

ASCAP Says Cell Ringtones are Public Performances - Pay Up!

One of the more outrageous attempts of a dying music industry to squeeze money from consumers is coming from the American Society of Composers, Authors, and Publishers (ASCAP).  The royalty collection agency represents song writers, among others, and has sued AT&T, Verizon, and other wireless carriers for royalty payments due whenever a cell phone rings by playing a snippet of an ASCAP artist's song.  The theory is that these rings are public performances of the song, inducing liability.  The wireless industry certainly promotes ringtones, as do the record labels.  It is big business for them.  But a performance royalty for when the phone rings?  I think not.

Assuming I have a cell phone with a covered song as a ringtone (and I don't, I have a generic sound), is it public if it rings in my home or my car?  How can ASCAP tell the difference between these locations and say, the train?  Would I be liable for one and not the other?  After all, if I'm liable, I want to limit my liability to those situations that can be characterized as "public."  The example that the Electronic Frontier Foundation uses consists of someone driving with their car windows down and playing the radio or a CD.  Are these public performances?  I would assume ASCAP would probably say yes, though the difficulty of nailing an individual consumer for blasting a tune is different than nailing a corporation for selling 10 seconds of a licensed recording.  One has money, and the other would just as easily (and quietly) pirate a ringtone via legitimate software than pay another fee.  Other performance rights societies have weighed in through amicus briefs supporting ASCAP.

I think the wireless industry would just as easily stop distributing ringtones if a decision against them yielded significant financial damages.  This would, in effect, reduce a revenue stream for the labels and ultimately the artists/copyright holders.  Maybe that wouldn't be a bad thing.

The EFF has kindly put up a page with documents in the case, here.

July 6, 2009 in Lawsuits | Permalink | Comments (1) | TrackBack (0)

Friday, June 26, 2009

Apple Gift Card Suit Filed

Apple is being sued over gift cards.  The claim, filed in federal district court in Illinois says Apple markets the cards saying that songs are available for 99 cents.  Low and behold, with variable pricing, songs may cost more that 99 cents, or even less than 99 cents.  That's why there are disclaimers that read something like "We reserve the right to alter these terms...."  I don't know if Apple has a disclaimer, but their lawyers can't be that dumb not to include one somewhere regarding gift cards.   File under stupid.

More in CNET.

June 26, 2009 in Lawsuits | Permalink | Comments (0) | TrackBack (0)

Thursday, June 25, 2009

Windows 7 Pricing Announced

Microsoft announced pricing for Windows 7.  It gets a bit complicated given the different versions and upgrade possibilities.  Ars Technica has it all in a matrix that makes sense (compared to other published reports).  Cost is a bit less expensive for comparable Vista SKUs.  Good for Microsoft on that one.  There will also be a pre-order program that allows for an almost 50% discount for copies of the OS.  Microsoft will offer 7 Home Premium for around $49 for a limited time pre-offer, for example.  The option starts Friday, June 26th and ends Saturday, July 11th.  Details are in the Seattle Post-Intelligencer online only edition here.

June 25, 2009 in Microsoft | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 24, 2009

7th Circuit Upholds Mass Market Sentencing Enhancement for Internet Auction Fraud

The Seventh Circuit on Monday affirmed the enhanced sentencing of Jeffrey Heckel for mail fraud by using the Internet to conduct mass marketing.  Heckel conducted Internet auctions for items, cashed checks by winning bidders, and sent inferior items from those advertised.  Heckel claimed that only five people were defrauded, and that only one person, the winner, can be defrauded in an auction.  The Court analyzed the sentencing guidelines (§ 2B1.1(b)(2)(A)(ii)) and concluded that they support the enhancement because of the number of people the scheme could reach irrespective of the number that were victimized.  Recognizing that Internet auctions can attract a potentially large number of competitive bids which drive up the price of an item was enough to justify the enhancement.  The opinion is U.S. v. Jeffrey Heckel, (No. 07 CR 41, June 22, 2009).  The oral arguments are also available as an mp3 file here.

June 24, 2009 in Court Opinions | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 23, 2009

Microsoft's Free Virus Beta Now Available

Microsoft's free real time virus program is available as a beta download.  It's available here.  Computerworld and PC World have reviews, generally positive .  One feature that stands out is the minimal use of resources for background scanning.  That's something that commercial virus applications should try some time.  The weekly full machine scans of some products can bring even a relatively powerful machine to a slow grind.

June 23, 2009 in Software | Permalink | Comments (0) | TrackBack (0)

What Were They Thinking?

Bozeman, Montana, has eliminated the practice of requiring job applicants to supply their usernames and passwords to their social networking sites.  Yes, it is crazy for them to ask for that information at all.  Plenty of investigations take place that see the public sides of these sites, and they still bring up questionable material for some targets.  One commentator in US News defends the request, sort of.  You can read that here.  The Wall Street Journal reports on the controversy here.

June 23, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Netbooks Disappoint Consumers

What a surprise.  Consumers confuse netbooks for laptops.  Netbooks are light, inexpensive machines geared for web and email.  Laptops have the power to run productivity and entertainment applications and do the web stuff.  A significant price difference of say, $300, always seems to translate into a less capable (powerful) machine.  The story is in Business Week.

June 23, 2009 in Hardware | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 16, 2009

Microsoft May Do To Antivirus What It Did To Browsers

Microsoft will unveil a new free antivirus app.  The big players in the antivirus market have some concern.  Will they complain to the European Union as everyone else does when Microsoft offers something free for which others pay?  Details in Daily Tech.

June 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Amazon May Open Up Kindle, e-Book Business To Other Formats

Amazon is willing to separate the the e-book business from the Kindle business.  Jeff Bezos is quoted in Information Week saying e-book content from Amazon will be available on a variety of platforms for the same $9.99 price point.  He also suggested that the Kindle open itself up to other content from other vendors.  How serious this may be is another question, though it may help Google with its Justice Department investigation on the book settlement.  The market gets a bit more open if Amazon moves away from linking its own content exclusively with its own reader. 

June 16, 2009 in Books | Permalink | Comments (1) | TrackBack (0)

Monday, June 15, 2009

Are Lawyers Competent to Construct Keyword Searches?

This issue raises its head every now and then in the context of electronic discovery.  One of the latest opinions on this comes from Magistrate Judge Andrew J. Peck in the Southern District of New York.  The case is William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. Mar. 19, 2009).  It involves delays in the construction of the Bronx Criminal Court Complex.  The Dormitory Authority of the State of New York (DASNY) owns the project and agreed to produce emails from non-party Hill International, the project construction manager, as part of the discovery.  The parties could not agree on keywords for locating the relevant emails.  DASNY proposed one set of words that were specific to the project, but possibly too narrow to give comprehensive results.  The other side proposed terms that were broad, and almost generic enough to include the entire email archive.

The opinion, and others quoted in it, suggest that the problem here is more than simply a dispute between litigants.  Judge Peck thinks it may be that lawyers simply don't have a handle on what they are trying to find.  That includes more than the information in the relevant electronic archive.  The context is an archive of emails.  Searching it should take into account how individual emails were created, their purpose, how they are stored, and the form of the documents.  Practically every vendor of e-discovery systems offer contextual search using Boolean style connectors.  One would think that with some 30 or more years using a similar and  sophisticated search strategy with Westlaw and Lexis that constructing keyword searches in document sets wouldn't be that much of a problem.  Apparently it is.

Westlaw and Lexis are really misleading in this regard, and it's not their fault.  It's easy with practice and experience to extract relevant documents from Westlaw and Lexis once an individual masters the search strategy.  There is a combination of knowing the terminology of the legal subject, what kinds of documents are in an individual database, and some thought in the use of language as to how these legal concepts appear in text.  The misleading part is that these massive collections of documents have similar structure.  Cases have captions, docket numbers, counsel lists, authors, and a stylized language that uses consistent terms of art.  Statutes, law review articles,long-form commentary such as treatise, and even newspaper articles have enough of a regular structure that makes searching within them relatively easy for an experience searcher. An archive of emails or irregular documents is another matter entirely.  Westlaw and Lexis carefully run their additions through editors to eliminate misspelling's and other typographic issues.  Even then problems crop up.  Raw archives present problems with typos, short form language (LMAO anyone?), incomplete sentences and other off the cuff communication syntax.

Judge Peck bluntly lays it out:

This case is just the latest example of lawyers de-signing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.

He quotes from Judge Grimm in the Victor Stanley case:

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

* * *

Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.   Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D.Md. May 29, 2008) (Grimm, M.J.).

And from Judge Fasciola in the O'Keefe case:

Whether search terms or “keywords” will yield the information sought is a complicated question in-volving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.  United States v. O'Keefe, 537 F.Supp.2d 14, 24 (D.D.C.2008) (Facciola, M.J.).

Judge Peck suggests applying some thought to conducting searches, and that counsel cooperate.  He also suggests using sampling techniques to see what's there and then refining the search.  This is a technique that librarians and other information professionals use all the time.  Sometimes one has to get a sense of what the archive contains before constructing specialized searches within it.  That means finding out about what is being searched.  Competent information management in discovery may mean that lawyers may need to hire an expert when necessary.  Judge Peck noted that in passing through other cases he cited.  He also endorsed the principles of the Sedona Conference, available on the Internet.  Ironically, the site address in the opinion was malformed.  The correct address is  (Judge Peck, or at least the editors of F.R.D. used spaces to separate elements of the domain name.) 

From the site description:

The Sedona Conference® is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. Through a combination of Conferences, Working Groups, and the "magic" of dialogue, The Sedona Conference® seeks to move the law forward in a reasoned and just way. The Sedona Conference® succeeds through the generous contributions of time by its faculties and Working Group members, and is able to fund its operations primarily through the financial support of its members, conference registrants, and sponsorships. See "About Us," "Working Group Series," and "Sponsorships" for further details.

Electronic discovery and best practices associated with it are one of the areas covered in detail at the site.  Much of the information there is free with registration.

June 15, 2009 in e-Discovery | Permalink | Comments (1) | TrackBack (0)

Friday, June 12, 2009

No IE? Europe Reacts

The European Union is none too happy with Microsoft's announcement to remove Internet Explorer from Windows 7.  That's not what it wanted, they essentially said.  No, no, (as best said in 27 languages), we want Microsoft to offer a range of competing browsers.  Or, as quoted in the statement, "Rather than more choice, Microsoft seems to have chosen to provide less."  Ahem. 

Microsoft's plan leaves it up to OEMs to put whatever browsers it wants on their computers.  It happily provides copies of IE for that purpose.  The move, by default, requires other browser suppliers to do the same.  Opera is as miffed as can be about the development.  This article in CNET says Opera wanted Microsoft to act like a browser common carrier.  The problem is Microsoft is not a utility.  Will Apple have to do the same?  Will Linux or Unix?  Microsoft's action makes the Commission look stupid, and will reflect on its inevitable decision in the case.  Can it actually force Microsoft to supply competing browsers when it does not supply one itself?  Windows will sell either way, with or without IE.  Microsoft's move just makes it all the more inconvenient for its browser competitors in Europe.  To quote Ricardo Montalbon (from Freakazoid), "Laugh with me."

June 12, 2009 in Browsers | Permalink | Comments (0) | TrackBack (0)

The Day Analog TV Went Dark

Finally, it's happened.  Today is the day that televison stations nationwide are broadcasting in digital form, shutting down their analog transmitters forever.  Instead of the old rabbit ears, consumers must get their broadcasts using a digital television with a digital receiver, or an analog TV with a converter box.  Both, however, need digital rabbit ears or an outdoor antenna that does the same thing.  Way back in the 60s there were photographs of cityscapes with hundreds of antennas littering the roofscapes.  How ironic that we move forward to better broadcast television by going back to those days.  Maybe not, though.  Cable and DSL access negates the need, and antennas compete with satellite dishes for rooftop spaces in the enlighted age of television.  Reports estimate that two million citizens will have problems with the transition.  Out of a country of 300 million plus, that's not that bad.

The Washington Post has a special DTV transition page with more information than anyone will ever need about this.

June 12, 2009 in Television | Permalink | Comments (0) | TrackBack (0)

Thursday, June 11, 2009

WIndows 7 Will Not Have IE in European Editions

Microsoft has announced that it will ship European copies of Windows 7 without Internet Explorer.  This is an attempt to calm down European regulators who are investigating the company for abusing the browser market with pre-installed copies of Explorer.  Computer manufacturers are free to add IE back or install other browsers.  Consumers not so lucky to have a browser installed on their machines will find the Internet a little hard to reach without some extra effort.  They will have to get copies via CD, FTP, or from another source.  I think here is still command line FTP in the Windows DOS emulator.  I would imagine that the likelihood of a European-sold machine without some type of browser is small.  Manufacturers know that the Internet is ubiquitous so they will likely install something for customers to get to the web on their machines.  

Microsoft still has a basis to compete for browser share on the web.  I use Chrome most of the time, but there are still features it lacks such as the integration IE has with other Microsoft programs.  I can't print only a selection, or right click and automatically email a picture through Outlook in Chrome.  I usually open Explorer when I want that convenience.  It will be interesting to see what market share the other browsers get in Europe in light of this decision, or if it will even matter.

June 11, 2009 in Browsers | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 10, 2009

French 3 Strikes Law Struck Down

The French law Création et Internet, also known as the three strikes law, is struck down by the French Constitutional Council.  Ironically, it only took two strikes, it's parliamentary defeat on initial consideration, and this decision, to be disconnected from French law.  As the law would operate, content owners would investigate and send complaints to to an authority set up under the law.  The authority would then contact ISPs who would send letters to customers warning them of their illegal activities.  The customer would be disconnected from the Internet on the third notice.  Simple, clean, and endorsed by Paul McGuiness, manager for U2, who thinks the world of graduated response laws as the model for protecting content, or is it really an analog business model?

The Constitutional Council took issue with the law's apparent disregard for the principle of innocent until proven guilty.  This is so even though the law is extrajudicial.  The Council also took into account the importance of the Internet as a means of participating in a democracy.  The French government is naturally disappointed in the outcome.  The New York Times reported that Christine Albanel, the French culture minister would suggest remaking the law to account for the Council's decision, bringing it into a court's purview.  If so, that means a mechanism such as the one in the United States where the RIAA pursues file sharers in court.  With or without ISP cooperation, that is a painful and expensive process for the content owners.  

Albanel added that warning letters would go out in fall in any event.  This story in Ars Technica suggests that the number of people who would be intimidated by those letters would be small.  The story reports on a study conducted in the U.K. suggested that without sanctions, the number of people who would take heed of warning letters would drop from 70% to 33%.  The British government is still considering the issue of a legal response to file sharing.

Here is the reports from the New York Times and Ars Technica about the Court's decision.  The Ars story has links to the text of the Constitutional Council's decision, which, of course, is in French.

June 10, 2009 | Permalink | Comments (1) | TrackBack (0)