Archive for the 'The Law' Category

The constitutional inevitability of same-sex marriage

Posted in The Law on August 29th, 2011

Laurence Tribe, SCOTUS Blog



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.

More about my current Cyberlaw class and the FCC hearing

Posted in The Law on February 25th, 2008

These are two other live blogs on the hearing, the first being the course’s blog as a whole.  The direct link to the live blog on the course website is here.

LiveBlogging the FCC Conference Part III

Posted in The Law on February 25th, 2008


Q: Best case scenario network?

A: Their business follows broadband – hence a lot of oportunity in Asia (i.e. China and Japan) Can work when we understand what is being done to them.  They rely on the structure of the internet to habndle things like basic congestion control.  has been functioning for a long time with Forsythe’s protocols. That is where the purview of basic communications take place.

Q: Is that the basis or one of the points of BitTorrent Technology?

If they can develop technology that works with cable, they will have a competitive advantage. because it is a closed commercial servcive they have innovated a lot in the area.

Q: If your protocol were not to work on a specific type of network, and they were to adopt a disclosure of this – we have public disclosure requirement on food, even though it is competitive, how would you feel about such a requirement?

A: There is considerable disclosure on the function of bittorrent.

Q: Is the application developer or the network operator the one who ought to be adapting?  The expectation is that if you have internet service, your app can function regardless of who is providing it. it is like telling people n ot to speed, but not disclosing the speed limit.  What is missing here from the current disclosures is there is no way for the applicaitons to conform becaus there is no alternative information being provided.  Not a simple problem to solve, but there need sot be more back and forth about how they are expected to behave.

LiveBlogging the FCC Conference Part II

Posted in The Law on February 25th, 2008

* Scott Smyers, Senior Vice President, Network & Systems Architecture Division, Sony Electronics Inc

Competition in the video content distribution space would be advantageous, and allow new providers to enter the market. Sony experiences competition a little differntly.  There are over 80 TV manufactureres, every year costs go down and technology improves.  This is not the case in the video content distributon space.  He hopes the Commission will recognize the alue of competitors entering this new maarketplace.

ISPs make rational busines decisions when designing and deploying their networks. They must make sure t remains useful for at least basic internet traffic.  They must find a means of coping with bandwith scarcity – which can result from over suppy or ver-demand, and overuse.

LiveBlogging the FCC Conference

Posted in The Law on February 25th, 2008

* Eric Klinker, Chief Technology Officer, BitTorrent 

Comcast has introduced the idea of blocking BitTorrent.  The speaker is dicussing the potential of this medium to have beneficial uses for the ‘net.  It has many legitimate uses, including those companies that use it as a free distribution stream for their content, like Fox and Warner.  Blocking this technology under the mantle of ‘network maintance’ would block the potential development that we might see in this area.

There is a lot of congestion on the network, though.  but this is evidence that we are no country for old Broadband. Survival of the ‘net as a whole means that content providers are transparent in the way they deal with the internet.  He wishes there were a way to do this without regulation.

David Reed: (Adjunct Professor, Massachusetts Institute of Technology Media Lab) Network Management of High-Speed internet providers.

Potential for worldwide internet to work for all users.  Datagram – there are only four items stamped on the outside: origination address, destination address, protocol indicator, and the directions for how it should be delivered. The content is inside the envelope – this is crucial to the nwtorks ability to adapt to new techniques.

Content is meaningful only to the sending and receiving hosts.  When congestion becomes extreme in autonomous systems it is common to discard the envelope – the sender is responsible for retransmitting the content in a new envelope.

Responsibility for indicating priority s part of this particular TCP. Comcast secretly used a different system.  Proviers must use standard mechanisms – it it doesn’t like them it has to bring its problem to the IEPF along with proposed solutions.   When they participate, they agree to do so according to the standards of the internet as a whole.

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.

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.