Archive for the 'cyberlaw' Category

Patent Law News Roundup

Posted in cyberlaw, Intellectual Property, The Law on March 15th, 2008

Apple Sued Over ITunes Technology
These articles seem aimed at the general public, not law geeks. So I did a little research. It appears that this is regarding United States Patent 7.343,414

In other news, Activision’s “Guitar Hero” violates patent: Gibson which appears to concern Patent 5,990,405 After reading this, non-lawyer hubby Vinny and I had a long debate. He came up with the idea that by licensing use of Gibson guitars in the game, they had de facto ratified the software – perhaps waiving claims? I played devil’s advocate. I thought perhaps that if it was being examined equitably, or holistically, a judge might recognize the separation of the elements of licensing the guitar and policing patent rights – the former being done by the marketing folks, and the latter by an outside firm.

While there is no legal decision on the subject, Activision seems to agree with Vinny. The news came out after he had set forth the theory, confirming that the guy who sat in on fewer than a dozen law classes has a killer instinct for the subject. Ask me some-time about his mutual mistake theory for common-law implied obligations in marital contracts.

LiveBlogging the FCC Conference Part IV

Posted in cyberlaw, The Internet on February 25th, 2008

Video Comments:

Sarah McKee (retired Federal Attorney): Wanted to hear from non-techies how the ‘net improves their lives, and about ‘net neutrality.  She plays music for cancer and other hospital patients.  To organize them, they need the internet, without it they would not be able to operate.

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?

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.

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.

Note to McCain – RTFM!!

Posted in cyberlaw, In the news, The Law on February 8th, 2007

Senator to propose surveillance of illegal images

It also covers obscene images of minors including ones in a “drawing, cartoon, sculpture, or painting.” (The language warns that it is not necessary “that the minor depicted actually exist.”)

OK, I’m only a law student, but this immediately triggered a WTF? reaction since SCOTUS has recently held that you cannot ban cartoons or rendered images. Indeed, the first amendment requires a showing of ‘actual harm’ to a child in order to overcome the free speech protections. SCOTUS held that that actual harm exists not in viewing the images,but in the taking of them – at the outside, the potential psychological harm to the child that the image is ‘out there’.

Indeed this has presented evidentiary difficulties that nearly require production of the child in the image. Prosecutors have struggled to otherwise prove that it was a real image -with software and FBI experts’ declaration that an image is real and not rendered recently held insufficient. Of course, Thomas’ concurrence in the original holding postulated that the severe evidentiary burden, if it imposed too high a bar to prosecution, could be sufficient a cause to ban fake images. And while the recent problems may lean that way, a statement in one concurrence does not really provide McCain with legs for this bill.

What is he basing this law on? Does he really think that the recent decisions will cause SCOTUS to overturn its holding? Or is he just not paying attention to what the First Amendment jurisprudence? One would think the job of Senators includes RTFM, or at least getting their staff to do so. One would think that if this case was re-testing the holding, this would be articulated somewhere in the platform, in the article. Instead, it seems oblivious to the existence of the precedent.

Supreme Court strikes down ban on ‘virtual child porn’.

FYI – I’m actually behind Thomas’ concurrence. I would go so far as to say that the holding presents an evidentiary hurdle so high that it justifies a ban on virtual child porn. But it troubles me that the senators don’t seem to be paying attention.

What is my point?

Posted in cyberlaw, Cyberlaw Project on December 8th, 2006

I have been working with a fellow student on our projects. We have met to go over code issues when his blog wasn’t aligning properly (I’m an old hand at html) and have had a few discussions about our projects. After the in-class discussion, he e-mailed me on a matter that had been troubling me – what is the goal of my project?

A student pointed out that if I simply wanted to advocate for cafeteria plans, pitting the childfree against parents isn’t the best way to accomplish that. They’re right. Yet when I considered scrapping the whole Childfree Issues thing and focusing on the plan itself, the idea left me cold. It was more than just the fact that I would have to start from square one. It just wasn’t my goal.

My classmate’s email helped me hone in on the problem:

i had some thoughts on your project. i think your benefits issue and invisibility issue are kind of tension with one another and it’s probably best to focus on one for the purposes of the project. the benefits issue as you express it doesn’t seem to have a lot of appeal to parents or companies – they’re not getting anything out of this – as i understand it, you’re appealing to their basic sense of fairness, which is especially difficult if they’re not sympathetic to the childfree issue. i’d think the best way to get support on the cafeteria plan would be to show how this could benefit all kinds of employees, i.e. giving them more choice, as opposed to making it a “childfree rights” sort of issue.
the problem with that kind of argument is that it makes the childfree constituency more “invisible.” my gut reaction is that the best idea is to compartmentalize the benefits and childfree-awareness issues into separate projects.
hope this helps,
The invisibility I had mentioned is my project. However, getting the childfree recognized as an interest group is a project that can last for years, probably decades.

The first step is to get people to self-identify. While there is a vocal childfree community, the majority of people who will choose to have children do not join it. I have friends who don’t want kids, and they do not make friends on that basis, or even attach a label to it. It is not something they seek out. Furthermore, as a commenter on my blog noted:

The childfree person is seen as disparaging the lifestyle choices of parents and syblings of alternate views by speaking out about not having children. . . .Many childfree people simply decline to talk about it to avoid arguments that have no fundamental solution because it would equate with the “your living your life wrong” arguments that generally have no result other than to fracture relationships.

If the real challenge is to get people to admit to ones around them that they don’t want children, (the compounding effect being the recognition of that subgroup by society) then first one must change society itself to make it more of an acceptable choice and erase that stigma. It is a cyclical process – one feeds into the other. It also happens to be a process I started a long time ago, the first time I went on CNN to discuss my choice. By being just a normal couple speaking openly about a very personal decision, Vinny and I hoped to break stereotypes and make Americans realize that some people just don’t want kids.

Obviously, this aim is a bit large for a single semester project. What I am trying to do is the second step – getting those who do self-identify to speak more openly and address the issues that are common to all of us.

My goal, simply put, is motivation.

People complain frequently on childfree discussion boards about various unfair policies, such as taxes, employee benefits, stork spots, etc. I have noticed for some time the lack of any sort of organization to channel the frustration people were feeling into action. By creating that channel, I can harness the energy that is already out there and translate it into visibility, into advocacy. If people call talk shows, write letters to the editor, and talk more about these issues, even the small subset of childless people who already self-identify as childfree can make more of an impact than they are now.

This is why my project is two-part and two-stage: the blog to last long after class and the website to begin advocacy on a single issue. It can help to get the ball rolling, show people what to do and embody the future of my project for the purposes of the course.

Since the goal is motivation, divorcing the dichotomy from the project is counter-productive. I don’t want workplace benefits, I want childfree people to start feeling less invisible, or at least to see that visibility is within their power.

I’m not sure how well I can compartmentalize – it is certainly possible to create a separate project just to hone in on the benefits package. Perhaps I can package this separate project as a tool for those I am trying to motivate.

One thing is for sure. Nothing ends when I hand this in.

(In case you’re wondering, the poster is from Australia, which spells sibling differently)

Second Life, Part Two (Project Fest)

Posted in cyberlaw, Cyberlaw Project, Second Life on December 8th, 2006

I entered Second Life today, probably at the expense of the Constitutional Law work sitting in front of me. It feels strange to be doing something so closely related to how I previously entertained myself, even if it is for a course.

On the syllabus there was scheduled a “Second Life Fest” for both the law and extension school students, apparently mandatory for the latter. I suppose I am not up to date on their altered syllabus, since there were not too many people there. Fortunately, I did run into a few ‘at-large’ participants who were interested in discussing the projects (although they had not done projects of their own) and was able to observe those portions and representations of ES projects that were stationed in Second Life. I viewed websites advocating warnings before an avatar enters a mature area, a project about Second Life, specifically Linden Labs owning the creations of the users.

The person who asked about my project had already seen the video, but I was able to discuss it more. I realized that my project was requiring a little too much in the way of explanation, and created a gateway page for entering the website and blog… I might have to refine it, but it forced me to state more clearly what I am trying to accomplish. I also altered the text on the “What Can I Do?” page of the site to reflect the aim, which is a very abstract goal of sheer awareness… More on that later.