Archive for September, 2007

I hate Zango.

Posted in The Law on September 27th, 2007

Although the focus of our “Practical Lawyering in Cyberspace” class has been the approach the attorneys took, rather than the substantive issues they tackled, I can’t help but get sidetracked this week.  We were dealing with the Zango v. Kapersky Software case, whereas a spyware purveyor sued an anti-virus software seller for blocking their program. They claimed that Kapersky was interfering with the volitional act of their customers in downloading the software, when they know well the entire aim of their company is to make certain the download is not on purpose.  They have to – virtually noone downloads adware knowing that it is adware.

To be fair, they are required to do so as part of a package deal wherein they get free software.  But a stupid dress-up doll (Zwinky) or simple program like a game or screensaver is not such a grand program that many would be willing to be constantly interrupted with pop up ads in exchange for them.  Instead, they rely on buried EULAs, euphemistically phrased, to get “consent” and then bank that the end-user will be unaware where the sudden ads are coming from.  Evidence of this can be seen in the company’s evolution; like other spyware, Zango began as a completely non-volitional download which blocked itself from being uninstalled.  You don’t do that if you think customers will willingly make such exchanges.

It is only through back and forth struggles with the FTC, Attorneys General, etc that they have evolved at all.  They have been required to clearly disclose and get affirmative consent, not bury the agreement in those huge boxes that no one ever reads.  Of course, the clear warning only discloses that you get a “free toolbar” with the download; the malicious nature of the program is concealed as much as legally permissible.  According to Ben Edelman’s recent research, they are not complying with the FTC order and are still falling far short of even these pseudo-disclosures.

Why does this stuff have such a visceral impact?  Is it residual ire from purging these programs from my own, friends’ and family computers?  I would remove, they would re-install, operate covertly, fight me all the while.  I think my hatred remains.  Perhaps I should make use of this in my career/education, and funnel it into things such as this post.  Indeed they are tempting me away from my other reading, so with this I must sign off.

Posted in cyberlaw, Practical Lawyering in Cyberspace on September 27th, 2007

Is the argument that Google seeks to make money (presented in both complaints for McGraw-Hill and Author’s Guild) effective considering the plaintiffs also seek to make money through exercising their copyrights or engaging in other deals? Generally, how should plaintiffs approach arguments in their complaints that may also undermine their own claims?

I’m not really sure how this would undermine their claims within the scope of copyright law. As owners of the copyright, plaintiffs are entitled to profit off of the works, and indeed the level of profit they may receive (or lose) strengthens their claim on fair use. (The fourth fact the courts look at is “effect on the works value”)The profit that Google stands to make likewise stregnthens plaintiffs’ case, as the “purpose and character” of their use is also looked at. In this mushy test, the more commercial a use, the less it looks like fair use.

I think that the question here is less one of weakening their own claims and more one of proper audience. Even though to the layperson the profit motive may appear to weaken McGraw-Hill’s case, this impact would not really be seen on a judge or a properly-instructed jury. Which brings us into the tangential issue of how much the court of public opinion matters.

In my view, public opinion is going to be dealt with through press releases and news stories. How many lay people (OK, excluding my husband) read court documents? I don’t think a perceived double-standard rises to the level required to be posted on the Smoking Gun. So, for the audience that really matters, this strategy seems sound.

Even so, the plaintiffs do emphasize the educational nature of their business, de-emphasizing their status as a for-profit corporation. In my opinion, this evidences the fact that overall impression matters even outside the legal issues themselves and the facts directly relevant to them. Judges and juries are still human, and psychology will always be a part of brief-writing.

Developing and Articulating a Core Theory of the Case

Posted in cyberlaw, Practical Lawyering in Cyberspace, The Law on September 27th, 2007

The Egilman Complaint leaves out many details of the story, which are then supplied by the Answer. Is plaintiff’s case assisted by noting only those facts favorable to his case, or does it give the defendant an edge by detracting from his credibility? If the latter, is this factor amplified by the way credibility itself plays into the substance of the story? (for example, do you believe the critical article was planted as a false story to test defendants?)In the McGraw-Hill case, does the plaintiffs’ emphasis on Google’s value and profit motive change the reader’s perception of the library project? Does Google’s titling of the project, and description of it in their answer alter this perception?

After reading the complaint, what is the impression one gets of the plaintiffs’ identities? Is the ordering of the parties to list the educational companies first a tactic? Does it play into their theory of the case, and the picture they are attempting to paint on both sides?

In its answer, Google states that the plaintiff has used “rhetoric and legal argument” disallowed by the FRCP, in response to the allegation that there is “no need” for the project. If this is a violation of the FRCP, do you think it was an accidental one, or a tactical decision? What are the likely repercussions of including legal argument instead of just factual allegations and legal conclusions? Might it be a good idea for lawyers to use this tactic if the risks are low?

In the Viacom complaint, the plaintiff makes use of the verb ‘perform’ to describe YouTube’s actions. Is this a necessary step towards disallowing Google use of the safe harbor provisions, or is it a rhetoric device to make Google seem like a more active participant? (Or is it both?) If the term sounds awkward and disingenuous, does that affect your view of Viacom’s case?

The introductions in the Viacom Complaint and Answer attempt to put the issues raised in the case into a global context, and take on less of a still legalese character. The McGraw-Hill briefs are more straight-forward and factual, and incorporate their theories later on in the complaint. Does this have an effect on the reader’s perception of the issues? Does making the case sound vitally important affect the decisionmaker’s perception of who has the stronger case?

Creative Commons/Flickr photo lawsuit

Posted in The Law on September 26th, 2007

Another student posted on the course blog: “A minor, represented in a suit filed by her mother in a Texas state court, is seeking damages against Creative Commons for what the plaintiff alleges is an unauthorized use of her image in a photograph downloaded from the Flickr website and used in a Virgin Mobile print advertisement in Australia. Flickr allows private individuals to upload photographs onto the website, generally to facilitate ease of sharing. The question at issue in this new lawsuit is whether or not Creative Commons had the authority to allow for the use of the pictures by Virgin Mobile. The cell phone company acquired the image from Flickr using the Creative Commons attribution-only licensing scheme. The license allows for the free use of the photographs by third parties without the permission of the subject of the photo or the photographer as long as the reproduction of the photo contains a credit to the link from which the photograph was originally taken.”

Links: Internet Cases Blurb and the photo and discussion on Flickr.

This brings up an interesting aspect of the law and the internet – what constitutes informed consent? Back in the days when you had to sign your name on a form, there was something more important-seeming about your action, and although I am sure that few sat down to read car insurance agreements, you can now sign your rights over without ever seeing the form. (as in when there is a hyperlink you don’t bother to click) In most cases, these are still “contracts of adhesion” and their terms not iron clad if examined by a court. Still, there are many contexts in which this can be used to a party’s advantage; for example, many users may assume the agreement is fully enforceable and never sue.

To go on a bit of a substantive tangent, this is a key part of malware fights. When companies distributing ad/spyware wanted to facially comply with regulations, they will have a fine-print disclosure of the installation of additional software that generates pop-up ads. They can then claim, as Zango did, that the users consented to the presence of that software on their computers in exchange for the free screensaver, Zwinky doll, or game they had willingly downloaded.

The problem was, the companies were doing everything they could to have the user consent without realizing it. They have the agreement in a separate document that you have to click to open, bury it under expected and unremarkable legalese terms, and sugar-coat it by using euphemistic terms to describe their great “bonus” toolbar. A key part of the Zango settlement with the FTC(warning: PDF) was that it get “express consent” to “clear and prominent” terms. (according to , they are falling short of compliance)

Just when is consent actually consent? When you have to click a checkbox agreeing to unseen terms every time you join a new site, it becomes almost an unconscious act.

Obviously the Flickr agreement is not the same thing. They are not including the license for selfish or devious purposes, and those who have been hanging around Benkler’s class and the Berkman center have probably gotten the impression there are great benefit to having more things in the Creative Commons. To boot, CC is not the default; I just checked my own account, and fortunately have “All Rights Reserved” on the photographs that my professional photographer friends gifted me for my wedding.

But how much did ChewyWong really think about what she was agreeing to? Did she contemplate being mocked on bus stops in Australia? Have we made it too easy to give away our rights? In a world where the casual style of homemade Flickr photos is a hip advertising style, this question becomes more and more relevant.

Interestingly, I forwarded a few friends the website of a renaissance faire I was planning to attend. On the top of the page were a pair of eyes peeking out from a ninja wrap. A response from my friend, who is president of a database programming company: “Wow, that is my picture. And I don’t even know who these people are.” Perhaps it had been taken from a similarly CC endorsed photo site, perhaps it did not. It doesn’t really matter – it never occurred to him to sue. We’re not all Fields, waiting for the opportunity to seize on our rights and make a profit – in the real world people often let these things go. If Virgin does get sued, regardless of the outcome, perhaps their main mistake was not the picture, but the caption.

Atheists Charge Christian Group with DMCA Abuse

Posted in cyberlaw, Intellectual Property, The Law on September 26th, 2007

Creationist vs. Atheist YouTube War Marks New Breed of Copyright Claim.
According to Wired, the DMCA is now being used as a tool in religious wars. The Rational Response Squad had posted several critical videos that used Creation Science Evangelism ministry owned content. The latter reported to YouTube that they violated copyright law; YouTube took down the videos and even suspended the RRS’s account. According to an EEF attorney, the material was “clearly fair use” and CSE’s claim was “clearly bogus.”

It is also likely that the group disclaimed copyright in the materials; although they have now edited their site to state that copyright was placed on all materials in 2005. Those who have taken copyright can help me out here, but I believe you cannot rescind something from the public domain; assuming the screen shot is genuine, they are attempting a slight of hand by back-dating it.

This brings up interesting issues that we discussed in the first week about the wisdom of DMCA procedures that might lead to a “chilling effect.” Here, the concern is deepened – could the quick take down response that the safe harbor provisions incentivise be subject to more than just the haste and zealousness of the entertainment industry, but to targeted misuse?

Wired’s take:

“As more people catch on to how useful YouTube can be for delivering political, religious and cultural messages, DMCA claims are likely to increase. With news cycles moving at light-speed, an illegal copyright claim might well suppress unwanted news long enough to distort coverage. And if previous incidents are any indication, the issues involved could get much weightier, especially in an election year.”

Here, one could place more responsibilityon YouTube for failure to investigate before the takedown. Instead of a list of hundreds from a major content owner, you have at most a few dozen videos in the report. Of course, those videos are still aggregated with the mass of requests from other sources. You also run the risk of running too far the other way – giving a wide berth to major companies, and unequal protection to smaller copyright owners.

Once again, we are dealing with a legally-savvy recipient of a takedown notice; there may be many such takedowns that we are not hearing about.

The videos, and the atheists’ accounts, have been reinstated. The RRS is planning legal action. Such suits are not unprecedented: in 2004 Diebold falsely claimed copyright over leaked internal emails, and attempted to get them removed from the internet. Like our author friend Mr. Field, they ended up paying damages and penalties for their bogus copyright claims.

With cases such as these, perhaps there is a counter to the chilling effect of widespread DMCA claims. If copyright abuse can be charged independently in response to a takedown notice, instead of solely as sanctions on a plaintiff, it will give attorneys another reason to pause before sending cease and desist letters.

Copyright Clash at the Coop

Posted in The Law on September 25th, 2007

Posted by student to course blog: “In a bit of copyright news close to home, the Cambridge police were called last week to quell the purportedly illegal activities of several undergraduates.  What were those crazy kids doing?  Not drinking, not disturbing the peace, not engaging in any activity remotely evocative of “Animal House” — they were … copying down information about textbooks at the Coop.

Last year, two Harvard undergrads started a website to help students find their course books at the lowest price – and to donate money to charity at the same time.  The site, called, allows students to compare prices for those books at the Harvard Coop and several online retailers.  The group ran into trouble from the start with the Coop, which was none too happy about students writing down the ISBNs of course books on the shelves and then walking out without purchasing.  Last week, the Coop tried to eject two staff members from the store floor, where they were copying down ISBN information.  When the students refused to leave, the Coop staff called the police.  The cops came and went without making any arrests, and the students continued to write down ISBNs for another hour and a half. 

In an attempt to justify the store managers’ attempts to eject note-takers, Coop President Jerry P. Murphy claimed that the Coop considers the ISBNs of its textbooks to be the Coop’s intellectual property.  Alas, the law is not on his side – while an edited collection of information may be copyrighted in its particular arranged format, the facts themselves are not copyrightable.  See Feist v. Rural, 499 U.S. 340 (1991).  And as Jonathan Zittrain noted, the reading lists may be the intellectual property of the professors compiling the lists – but not the Coop stocking the books.  The Coop can assert real-property rights to exclude students from its premises (as long as they’re not doing it on the basis of, e.g., race or sex), but the intellectual property claim won’t get them far.”

There is another article in today’s Crimson, with a Copyright 101 guide on the issue by HLS folks, including our own John Palfrey. It also includes reference to policy issues – namely the purpose of copyright. It doesn’t promote the arts and sciences to allow bookstore presidents to keep Book names and ISBNs secret, especially when this is information the professors should be releasing to the students directly. I’m glad the law school Coop doesn’t have such a policy. At different points, I have roamed there with a notebook and a pen, or my camera phone, getting information for price comparison. I ended up buying most of my books there anyway, since the convenience of having them right away trumped the savings. But the Law School Coop does indeed offer additional services to make them attractive. I may be able to save $2 buying a study guide on Amazon, but the staff there is always able to offer helpful advice on which are best, especially contextually. That kind of competition is much more in the best interests of the community. Alison brought up a very good point – this does relate to the idea of sending cease and desist letters as a means of scaring people off regardless of the law. These students are at Harvard, and are less likely to be scared off than less-savvy shoppers in the face of similar claims. They have the resources of the law school at their disposal – and they are aware of this. Was the president’s real mistake making false claims to the wrong people? Could it be a good thing that such claims are being made here first? Now anyone with a Google account will be able to quickly access information about whether booksellers can claim IP rights to block customers from copying basic identifying information.

Extraneous Information in Legal Briefs

Posted in Practical Lawyering in Cyberspace on September 22nd, 2007

“In its memo in support of motion for summary judgment, Google continuously stresses the bad faith inherent in Field’s actions, though it is not mentioned by the judge in his decision, nor is it an element of any defense Google raises. Strategically, who is this language aimed at and what was the purpose of its inclusion in the motion?”

This seems related to the analogy question Proshanto asks – what about elements of the brief that do not go directly to legal standards and the question presented, but will otherwise influence a decision maker?

Juries as well as judges are not objective machines; we cannot input the facts and legal standards and extract a decision clear of subconscious influence. Add to this the fact that law is not a science; in many cases there will be room within the doctrines to justify either decision. For example, the same SCOTUS judge may come down on different sides of the same legal issue depending on the ideological situation of the case.

The quote from Field’s self-proclaimed “talented and creative” writings might not be directly legally relevant, but it is not superfluous. The same goes for the mental image of a spy at one’s door. If it convinces the judge that one party is a shady character, that predisposition (or even prejudice?) is going to influence where she falls within the range of legally justafiable conclusions. Which means that, like it or not, fancy prose and creativity may indeed be part of a good lawyers arsenal. And just when I got accustomed to bland legalese, too.

New Courseload

Posted in cyberlaw on September 12th, 2007

So I am beginning my first official foray into Cyberlaw and IP, outside of the work context.  I have dealt with cyber issues fighting malware at the FTC, analyzing copyright law for bloggers at the Berkman Center, and wresting with Safe Harbor provisions during my temporary stint as‘s in-house counsel.  I have also done trademark and patent law at my firm last summer.  But never before have I had a general background or any academic training – it was always learn as you go.

I’m hoping this will present much blogging fodder, particularly as I am finally free of confidentiality issues on the matter.  I will also be attempting to understand the relationship between the two.  As I learned about them, and dearly missed my passion for all things internet while reading valve schematics, I began to get the impression that they were distinct entities.  As the members of my “Practical Lawyering for Cyberspace” seminar rattled off the IP courses they were taking, I realized that the connection between them is something I am just beginning to understand.

I suspect that this and my introductory intellectual property course will make up the bulk of my entries this term.  My interest is fully piqued, and one of my grades dependent on online participation, so we might see a spike in volume as well.

Copyright Bullies?

Posted in cyberlaw, Intellectual Property, Practical Lawyering in Cyberspace, The Internet, The Law on September 12th, 2007

The first week in our Lawyering in Cyberspace Course dealt with Cease and Desist letters, including those sent by copyright holders to individuals.

In one instance, the NFL had YouTube remove a video that a law professor had posted, mostly consisting of their overreaching copyright notice. She purposefully included some footage of the game itself, and entitled the video “SuperBowl Highlights.” This layered the irony of the act; her point about the wild claims of copyrights within the SuperBowl would be made not just by its repetition, but by the act of removing that repetition under a copyright assertion.

My first reaction to the conflict was visceral, and sprung not by the removal but by the claims I saw in that video made by the NFL:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

What? Accounts? granted I have far to go in my understanding of copyright, but I believe you can only copyright expression, not facts. The NFL’s purported prohibition from talking about what happened in the game is therefore claiming more rights than they have. This reminds me of those little liability waivers in contracts of adhesion which parties have no hope of upholding in court, but nonetheless serve to discourage people from suing.

Furthermore, although fair use is a fuzzy doctrine, it looked pretty clear to me that this was well within the bounds of it. The purpose and character is non-commercial, and indeed political, the very essence of what is being protected. The NFL would seem to have no real property interest in the copyright notification itself (who is going to buy that?). The clip of the game itself is small and uninteresting, with no market in and of itself.

The initial takedown, prompted by NFL’s assertion of rights under the DCMA and complied with to keep YouTube within the Safe Harbor, appears to have been the result of mere carelessness. An assertion the NFL sloppily made of similarly-titled videos and/or those whose screen shot showed the game.

I’ll pause here, since this itself is problematic. Not all YouTube users are savvy law professors, who know they are in the right. Many would have no clue how to respond appropriately to get the video reinstated, a complicated procedure that requires specific claims and statements, and consent to jurisdiction they may fear making. The result will therefore be that many fair use videos will be removed, and free speech wrongfully silenced. Of course, the administrative hurdles to finding, watching, and evaluating every video present no clear alternative.

After the reinstatement, the NFL re-asserts its copyright, causing a second takedown. This is more focused, and individual. It is therefore more offensive, since they had a clearer indication that there were legitimate fair use claims here, perhaps even to the point of it being obvious there was no copyright violation. Since there was no harm to Viacom in showing the clip, as in taking away from their ownership in the game, why did they do it? At that point it becomes suspicious – they may be attacking her for the message itself.