IP/Internet/New Media Blog

Orin Kerr, via Volokh, reports on District Court ruling, disagrees.

Interactive Advertising Bureau has posted IAB Calls on FTC to Rescind Blogger Rules; Questions Constitutionality, the general thrust of which is that the rules unfairly discriminate against online advertisers as compared to traditional advertising.

“…we—are not arguing that bloggers and social media be treated differently than incumbent media…Rather, we’re saying the new conversational media should be accorded the same rights and freedoms as other communications channels.”

Although IAB is clearly an advocacy group, the argument certainly is non-frivolous. But neither is it frivolous to observe that while the law must treat equal things equally, there are qualitative differences between on-line and traditional advertising and relationships, differences which may legitimately support the FTC position.

One of our anticipated contributors informed me he was unable to log in to the WordPress administration pages. He was using Internet Explorer. A spot of troubleshooting established he could log in just fine with Firefox, and I was able to log in to the admin pages for Oblio’s Cap from his Internet Explorer. I let it go at the for the time being, but today set out to solve the issue. This is what I found:

Kindly be informed that this web site is not considered as a domain and so it can’t be added to internet explorer.

This is by design in internet explorer structure and we can’t guarantee that this will be changed in the future.

You need to contact the web site support to make their web site compatible with Internet Explorer as it could be created using a language that is not supported in Microsoft products.

Please note that you can contact us through phone any time from 9:00Am to 6:00Pm every day including the holidays and weekends.

I hope I was able to help you enough and thank you for contacting Microsoft Support Center.

The person who received and posted the above had something of the opposite of our problem, a too-short URL where ours is too long. The issues are close enough, however. It is more than a little galling that the browser infamous for being terribly non-secure should block me from my legitimate sub-domain.

I have no plans at this time to move the site to a sub-domain that IE is happy with. I instead exhort my contributors to consider superior browsers such as Firefox, Opera, Safari, and lynx.

(Edited, in lynx, to add, “Yes, really, even in lynx”.)

From ars technica’s article announcing Eolas, after winning half a billion from Microsoft, is suing 23 more companies:

Lurking in the background is whether software should even be patentable, an issue being reviewed by the Supreme Court. Numerous tech companies have argued that a ban on software patents is necessary in order for them to continue innovating; if the Supreme Court eventually decides that their reach is reduced, it could dramatically affect Eolas’ case against these companies.
Further reading:

* Search PACER for case number 6:09-cv-00446 in the eastern district of Texas
* US Patent 5,838,906 covering a “Distributed hypermedia method for automatically invoking an external application providing interaction and display of embedded objects within a hypermedia document”
* US Patent 7,599,985 for a “Distributed hypermedia method and system for automatically invoking external application providing interaction and display of embedded objects within a hypermedia document”

Some observations in the wake of the T-Mobile Sidekick debacle. The cloud is a black-box. So is the internet. The difference, of course, is that the one is subsumed by the other; that is, “the cloud” is a representation of primarily corporate sponsored, for-profit activities hosted on the larger internet, with no duty other than to shareholders of the various corporations. One uses “the cloud” at one’s own risk. T-Mobile and Microsoft have given alarmists a clear and convincing example of exactly what those risks are.

Cloud computing is defined at Wikipedia as,

“Cloud computing is the provision of dynamically scalable and often virtualised resources as a service over the Internet.[1][2] Users need not have knowledge of, expertise in, or control over the technology infrastructure in the “cloud” that supports them.[3] Cloud computing services often provide common business applications online that are accessed from a web browser, while the software and data are stored on the servers.”(emphasis added)

Cloud computing is not new. If you have a hotmail account, you use “the cloud”. What is new is the extent to which things beside webmail are being offered via “the cloud”, including, in the case of T-Mobile’s Sidekick service, “personal information stored on [a] device – such as contacts, calendar entries, to-do lists or photos.”

Large corporations like T-Mobile and Google encourage users to rely on their services for storage of and access to this kind of personal information, and it seems that the number of people who truly rely on these services is ever on the rise. But only a very few of those users are aware of the dangers associated with such reliance, not the least of which being that the terms of service may include language such as this from T-Mobile:

21. * Disclaimer of Warranties. EXCEPT FOR ANY WRITTEN WARRANTY THAT MAY BE PROVIDED WITH A DEVICE YOU PURCHASE FROM US, AND TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND DEVICES ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OF ANY KIND. WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR DEVICE. WE CAN’T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DON’T AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. THIS DOESN’T DEPRIVE YOU OF ANY WARRANTY RIGHTS YOU MAY HAVE AGAINST ANYONE ELSE. WE DO NOT GUARANTEE THAT YOUR COMMUNICATIONS WILL BE PRIVATE OR SECURE; IT IS ILLEGAL FOR UNAUTHORIZED PEOPLE TO INTERCEPT YOUR COMMUNICATIONS, BUT SUCH INTERCEPTIONS CAN OCCUR.

That paragraph ostensibly applies to services T-Mobile provides via “the cloud”:

Please read these T&Cs carefully. They cover important information about all T-Mobile services provided to you (“Service”) and your T-Mobile phone, handset, device, SIM card, data card, or other equipment (“Device”).

Some readers will by now have responded to the repeated use of scare-quotes for the term “the cloud”. The quotes are used intentionally, because, as has been mentioned in prior posts, the metaphors we use affect our use of the technology and, perhaps too often and too strongly, influence the creation and application of relevant law. In this case what engineers might have called a black-box has been tarted up with the fluffier label, “the cloud”.

Black box is a technical term for a device, system or object when it is viewed in terms of its input, output and transfer characteristics without any knowledge required of its internal workings. Almost anything might occasionally be referred to as a black box: a transistor, an algorithm, humans, the Internet.

The opposite of a black box is a system where the inner components or logic are available for inspection (such as a free software/open source program), which is sometimes known as a white box, a glass box, or a clear box.

“The cloud” is, by definition, a black-box into which one throws one’s personal data with no knowledge required of the internal workings. If that black box is provided by a responsible purveyor of services then use of that black box for mission critical information may make sense. If, however, that black box is provided by entities that expressly disclaim any responsibility to the user, one might do better to put into it nothing of importance (and certainly nothing unique).

Calling this particular black-box “the cloud” subtly shifts users away from common sense concerns over reliance on black-box technology. In the case of the T-Mobile Sidekick failure, users paid the price for accepting that shift and failing to recognize the dangers of the black-box that so eagerly swallowed their personal information.

(Modified version crossposted at enBanc The Los Angeles County Bar Association Blog)

Two bits of suggested reading, both of which should serve as fodder for subsequent posts here:

• With a look at the doctrine of “Initial Interest Confusion”, Wetmachine’s Harold Feld writes in his post Some Domain Name News:
  

  Time goes on and judges eventually catch up with reality.

  One can only hope this optimism is well founded and that the doctrine of “Initial Interest Confusion” is on its way out.

• Caroline McCarthy at CNET writes about FTC’s Final Guides Governing Endorsements, Testimonials (codenamed, “Endorsetest” if we are to go by the FTC’s name for the page:
  

  …at least one blogger is already raising concerns that angry readers may use the regulations to attempt to get back at blogs they don’t like.

  The FTC’s position? “Right now we’re trying to focus on education.”

EFF and boingboing are touting a conflict between free file hosting service, MediaFire, and the makers of skipscreen, a plugin for the Firefox browser that makes it easier for users to ignore ads from services like MediaFire. EFF has taken the side of skipscreen and issued a letter to Mozilla(pdf), the organization that makes the Firefox browser and hosts the primary plugin repository for Firefox browser plugins. EFF’s stance in one sentence: “Here’s the short version: it’s my browser, and I can ignore your ads if I want to.”

But perhaps the issue isn’t ownership of the browser. Perhaps the matter should be determined by the terms of service to which one assents when one uses a service such as MediaFire. Certainly MediaFire has a right to contract for a term requiring users to sit through ads (which makes comparisons to broadcast television moot). Stipulate that MediaFire has such a term in their terms of service, the question becomes, not “Whose browser it it?” but “On whose terms shall the service be used?”

If the second question is indeed the more apt question, there remains a further question: “When do non-negotiable, take-it-or-leave-it terms requiring one to accept severe limitations on the legitimate uses to which one can put their possessions give rise to adhesion or unconscionability?” The current legal landscape seems to favor the creators of End User License Agreements (EULAs) with the only real recourse for users being to forgo use of services with EULAs they find disagreeable. Might it be time to reconsider that anti-user stance?

Law of the Level’s post Creating the (Virtual) American Dream: User-Generated Content and Trademarks in Virtual Worlds asks:

A virtual world allows users to live out fantasies that they might never be able to fulfill in real life. So if you were creating a car for yourself, or to sell to others within that world, why not make it a Ferrari or a Lamborghini? When you create a pair of sunglasses, why not decorate them with the Gucci logo to mimic a pair you’ve admired at the shopping mall in real life?

Answering its own question, the article goes on to say:

At present, there is no legal precedent on this subject. But as the popularity of virtual worlds continues to grow, it seems likely that it will only be a matter of time before the courts make a decision on the issue.

But there is legal precedent, for the so-called virtual world is in reality a non-virtual, that is, real, computer program in a real world with real infringers. Letting the metaphor, the make-believe, of virtual reality distort one’s understanding of the underlying physical realities is a mistake forgivable, perhaps, in a gamer who spends much of their time watching dynamically generated cartoons and pretending to be the star of that cartoon. The legal system, however, must not make this mistake.

If one writes a program and includes the Coca-Cola (TM) trademark within it or upon it, then that is clear infringement. If one’s program gives a user the ability to do this, that is still infringement. If that program is Adobe’s Photoshop and a user creates a graphic infringing on a trademark there is no confusion. If that program is SecondLife or World of Warcraft the situation is the same. The very fact that one would want to create a cartoon of a Lamborghini speaks to the value of the brand to the person creating the cartoon. One wants a Lamborghini in one’s fantasy world because of the value of the brand in real life. When the fantasy is all in one’s head, there is no infringement. When the fantasy is supported by a computer program that creates a dynamic cartoon of a Lamborghini for the fantasist to fantasize driving, the infringement is direct and clear.

The question, then, is not “Is so-called ‘virtual infringement’ really infringement?” Instead the question is, when does it become actionable and what is the cost-benefit analysis of bringing action? The Court is notoriously ill-equipped to answer such questions, in no small part because legal professionals as a rule lack the technological background to understand where a metaphor like “cyberspace” falls apart. Failing to parse the underlying metaphors correctly can lead to bad law.

As an educational exercise it is important to remember: There is no virtual reality, no matter how many people fantasize in front of little plastic boxes with moving pictures. When one of those people makes a moving picture with your trademark, they are infringing.

From IP Thinktank Blog‘s September 24 post, “Hold everything guys isn’t IP already clearly understood and important?“:

Coca Cola sells carbonated water and flavouring, their brand is worth nearly 69 billion dollars…Isn’t it supposed to be the world’s best practices (in any field) that other companies should be trying to emulate? If that’s right, shouldn’t the success of these companies be a guiding light to others about how to invest in and manage their intellectual property? Shouldn’t that be enough (or at least a very good start)?

This writer has to answer, “No”, because IP is not a monolithic practice area but a patchwork held together by the loose threads of historical coincidence and practice rather than any necessary relationship between the interests and activities. We have come to think of copyright, trademark, and patent all in the same breath under the banner of “IP” but in reality these are vastly disparate pursuits (e.g., patent law has its own Bar).

Not only are the roots of “IP” disparate, but the various communities of “IP rights-holders” are equally mixed, rising as they do from different eras and operating principles. For instance, in a tech setting promiscuous sharing of what might otherwise be deemed “property” can serve goals of efficiency (and thus bottom line). In an art setting there is rarely any similar economic offset. And, of course, neither of these examples are relevant to the consumer goods branding example of certain cola companies.

Adding to the confusion is the increased interest in IP created by widespread use of the internet. Everyone who posts a picture or leaves a blog comment or sends an email now has a stake in what exactly IP is and how its laws operate and what it means in terms of their ability to lawfully do the things modern technology makes so very easy to do. Technological advances provided by everyone from Gutenberg to Tim Berner-Lee have muddied the IP waters. The first step to navigating those waters must be to better understand the varieties of IP, to know the name of an ocean from the many varied shifting currents to which it refers.