IP/Internet/New Media Blog

Florian Mueller reports on allegations of MP3 related infringement. The complaint is filed by Hybrid Audio, LLC, with Apple, HTC, and Dell as defendants:

The MP3-related infringement allegation I quoted is very broad. The complaint, however, focuses on a smaller number of specifically accused products: the Android-based HTC Evo 4G smartphone; Apple’s iPod nano, iPhone 4, iPad, MacBook Pro, and iTunes; and Dell’s Inspiron desktops, Studio desktops, Alienware desktops, Inspiron laptops, Adamo laptops, XPS laptops, Alienware laptops, Streak pocket tablet, and Android-based Aero smartphone.

The contours of the complaint notwithstanding, such cases support increased reliance on unencumbered formats such as Vorbis:

The Vorbis format has proven popular among supporters of free software.[19] They argue that its higher fidelity and completely free nature, unencumbered by patents, make it a well-suited replacement for patented and restricted formats like MP3.

* * *

Third party developer support of the Ogg format and Vorbis still lags far behind that of the arguably technically inferior MP3 format. A March 2011 search of all software categories on Download.com shows more than 10,700 results for the term MP3, less than 2,000 for Ogg, and less than 400 for Vorbis.

From the Ogg Vorbis FAQ:

The Ogg Vorbis specification is in the public domain. It is completely free for commercial or noncommercial use. That means that commercial developers may independently write Ogg Vorbis software which is compatible with the specification for no charge and without restrictions of any kind. However, the software packages we have developed are available under various free/open-source software licenses with varying allowances and restrictions.

Canadian attorney James Gannon has posted an entertaining, if ill-conceived, little rant on the futility of copy protection, titled, “How I Learned to Stop Worrying and Love the Copy, from which:

The fight against illegal copying is one that cannot be won. I can no longer deny the simple truth that it is ultimately futile to try to create artificial scarcities in what would otherwise be non-scarce goods. The digital revolution has allowed us to copy and share media for free and we should not let our antiquated laws stop us from enjoying these incredible technologies. It is time to fully embrace the digital revolution.

To be clear, I’m not talking about using P2P programs, cyber-lockers, illegal streaming or any other file-sharing technology.

I’m going to start printing my own money.

It is an emotionally appealing argument, but not a sound one. It is, in fact, a text-book example of what Schopenhauer calls, in his famous “The Art of Controversy“, “The Extension“:

This consists in carrying your opponent’s proposition beyond its natural limits; in giving it as general a signification and as wide a sense as possible, so as to exaggerate it; and, on the other hand, in giving your own proposition as restricted a sense and as narrow limits as you can, because the more general a statement becomes, the more numerous are the objections to which it is open. The defence consists in an accurate statement of the point or essential question at issue.

* * *

By using dialectical tricks of this kind a writer betrays that he is secretly conscious of being in the wrong.(emphasis added)

The essential question at issue is the wisdom and feasibility of imposing artificial scarcity on various artifacts. Gannon’s argument lumps all copyable artifacts, including electronic files and legal tender, into the same pot, as if there were no legitimate basis on which to enact different policies for differing artifacts. Gannon may or may not be “secretly conscious” of being in the wrong, but he is in the wrong all the same.

Internet radio provider Grooveshark has posted an open letter at Digital Music News. The subject is Google’s removal of Grooveshark’s app from the Android Marketplace:

In light of the recent misleading press concerning Grooveshark’s application, it is important to make clear that we will defend our service, and the letter and the spirit of the law, in court and in Congress. We will defend our name and our ideals for the sake of our users who expect modern delivery systems and comprehensive access across devices, for the sake of artists and content owners who fear another decade of decline, and for other innovators who continue to bring new ideas to market through the expression of creativity in the form of technology.(emphasis in original)

Following yesterday’s post about U.S. government efforts to shut down the Coreflood botnet, I felt a need to educate myself about one of the entities working with the DOJ and the FBI: Internet Systems Consortium (and a note of thanks here to James Tyre for his encouragement). From ISC’s own history page:

ISC was originally founded in 1994 as Internet Software Consortium, Inc., to continue the work of maintaining and enhancing BIND following in the footsteps of CSRG at U.C. Berkeley, Digital Equipment Corp., and Vixie Enterprises. BIND was then (and is now) an essential component of the Internet’s infrastructure, and ISC’s founders (Paul Vixie, Carl Malamud, and Rick Adams) felt very strongly that BIND’s continued support and enhancement should be managed and funded by an independent entity. IANA (Jon Postel, 1943-1998) designated ISC as a root name server operator (first NS.ISC.ORG, then F.ROOT-SERVERS.NET) so that we could properly support the use of BIND by root name servers.

To put this in perspective, BIND was, as of 2004, the most commonly used Domain Name Server (DNS) application on the Internet. For less technically oriented readers, the DNS system is what connects human readable domain names like “google.com” to human confounding addresses like 74.125.224.52. Computers that want to be found by way of a human readable name need a DNS program. In the vast majority of cases that program is BIND.

In addition, ISC maintains the F server in the Domain Name System’s root zone. While most users are accustomed to thinking of either .com or .biz or other top-level domains as the largest umberella under which individual domains exist (e.g., “robertlink.com” versus “robertlink.org”), there is one level higher, to which all top-level domains belong: The root zone. Techincally, the full address of “www.google.com” is “www.google.com..”. The extra dot is generally omitted because it is implicit in all DNS addresses. There are 13 root zone servers worldwide, labled A – M, and they provide the list of designated authoritative name servers for a given top-level domain.

The A and J root servers are operated by Verisign, the L root server is operated by ICANN. E is operated by NASA. H is operated by U.S. Army Research Lab. At this time I have no information suggesting why ISC was chosen to work with DOJ/FBI/Microsoft, rather than one of the other root servers.

Because this blog is the semi-official organ of the Beverly Hills Bar Association’s Intellectual Property/Internet/New Media Section’s Executive Committee, I feel compelled to at least strive for a tone, and a quality of information, consistent with the well-earned prestige of the Beverly Hills Bar Association as well as the caliber of the attorneys with whom I have the good fortune to work as a member of that group.

But I can no longer avoid the first person singular pronoun.

I also have hopes of recruiting other contributors in the near future. If you are interested in contributing to this blog, please contact me directly.

Jennifer Granick‘s headline at Law Across the Wire and Into the Cloud reads, “Court Authorizes U.S. Gov’t to Kill Zombies. The headline is entertaining, but at issue is a potential threat to online rights:

As for the more controversial aspect of the operation, the method to kill switch power, the DOJ relied on 18 U.S.C. 2521, entitled “Injunction against illegal interception” for this authority. That statute allows the Attorney General to file a civil suit to get an injunction again unlawful felony interception of communications. The provision says, in part,

The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought.

The government argued that the kill switch is an “other action” warranted to protect the individuals whose computers are infected. This argument is unprecedented, literally. No court has ever analyzed the meaning of this section and there are no reported decisions which cite this provision. Certainly, the Coreflood operators are unlikely to challenge this part of the Court order. But, if an infected computer gets taken off-line as a result of this operation, the owner may seek redress against the government. And civil libertarians have to ask what the limits of this new power the government claims are.

Because this is an untested area of law, one can expect a war of metaphor and analogy to commence. Be wary of discussions that gloss over the technical details of what is being done. The Department of Justice, the Federal Bureau of Investigations, a non-profit called the Internet Systems Consortium, and Microsoft are working together to find machines that, ostensibly, are running malicious software unbeknownst to the owners of those machines, and having found them, are working to disable that code. Having developed this capability for a plausibly legitimate purpose, one is perhaps justified in being concerned about the potential for abuse of such capabilities, and about possible unintended consequences. In the current socio-political milieu (i.e., the so-called “war” on terror) there is a zeal in such efforts that seems to place concerns about possible governmental overreach on a lower priority. The language of killing zombies, playful as it is, lends itself well to masking such overreach.

The Humble Bundle is back, this time with a suite of three full games and two bonuses. Humble Bundle offers these games on a “Pay What You Want” basis, without Digital Rights Management protection on the files.

At this writing there are ten days left for this campaign. Over 118 thousand purchases have been made, raising over $600,000. Previous campaigns broke the million dollar mark.

By default, half the proceeds of each sale go to the developer, in this case Frozenbyte. The other half is divvied up between Electronic Freedom Foundation, Child’s Play, and “Humble Tip” to cover bandwidth costs for the campaign.

By way of Cory Doctorow‘s post on boingboing.net, an article at Courthouse News Service reports on a class action suit in which plaintiffs allege digital rights software accompanying a trial download triggered contact from the rightsholder with threats of suit for infringing use.

[Plaintiff] says he downloaded a free, 7-day trial copy of Transmagic software from a website, didn’t like it, and uninstalled it the same day.

Three months later, he says, he got a phone call from ITCA: “ITCA, while claiming to serve as a ‘mediator,’ used various coercive techniques to induce plaintiff to agree to a large penalty for ‘illegally downloading’ software. For example, ITCA told the plaintiff that if he did not agree to purchase the product license and service plan for $10,000 plus annually recurring maintenance fees, Transmagic and ITCA would take legal action against him for $150,000, an amount ITCA claimed it had successfully obtained in prior actions. Further, ITCA made clear it knew where plaintiff worked and, as long as payment was made, ITCA would not disclose the ‘piracy’ to his employer.

Research conducted into such actions has not revealed the existence of any such instances of recovery by Transmagic.

A pdf of the complaint is hosted at http://www.courthousenews.com/2011/04/01/Transmagic.pdf

Alexia Tsotsis, writing for TechCrunch, reports intruders have gained adminstrator level access to several servers hosting wordpress.com sites. Tsotsis lists TED, the popular site hosting videos centered on technology, entertainment, and design, along with CBS as potentially affected by the security breach.

For those not already familiar with it, take a moment to visit IP Colloquium, a resource for IP oriented podcasts and even free CLE credits. The current show features Suzanne Michel of the Office of Policy and Planning, and Deputy General Council William Cohen in conversation with host, UCLA Law Professor Doug Lichtman discussing the FTC second report on patent reform.

Cory Doctorow at boingboing.net points to a BBC report of opposition to a law in France requiring ISPs to maintain unhashed passwords:

The law obliges a range of e-commerce sites, video and music services and webmail providers to keep a host of data on customers.

This includes users’ full names, postal addresses, telephone numbers and passwords. The data must be handed over to the authorities if demanded.

As Doctorow describes this, “Requiring French online services to keep a record of unhashed passwords is a reversal of decades of best practices in security.” Doctorow also points to a post by security expert Bruce Schneier, the comments of which offer insights to some of the techincal concerns.

Serial entrepreneur Michael Robertson offers the following regarding Apple Inc. v. Amazon.Com, Inc.

It irks me when companies try to use legal tactics to block legitimate competition. When I built Linspire, Microsoft tried to rewrite history, claimed they invented “Windows” and prevented anyone else from using it or anything close to it (e.g. Lindows). Apparently, Apple has stolen Microsoft’s playbook.

At the core of Apple’s complaint is the claim:

Amazon has begun improperly using Apple’s APP STORE mark in connection with Amazon’s mobile software developer program. Amazon has also taken actions which, on information and belief, evidence Amazon’s intent to improperly use Apple’s mark in connection with Amazon’s mobile software download service.

However, as Robertson aptly argues,

Linspire does deserve credit for building a graphical interface around a nicely-categorized application library and making it one-click easy. However, a big chunk of the underlying technology about how to install the software was created by the Linux community. One example is APT (Advanced Packaging Tool). Although ugly and requiring the typing of commands rather than clicking, one could argue that this app store pre-dates CNR…”App Store” is a generic computing term that was in use prior to Apple’s product. App store was used by reporters, competitors and dictionaries to describe a category not Apple’s service. There’s no question Apple’s app store is hugely popular but that doesn’t mean they invented it or can block others like Amazon or Google from competing.

It bears mention that while Apple has in fact applied for registration of the mark, that registration is being held up by none other than Microsoft:

Apple has applied to register the APP STORE mark in the United States. The U.S. Patent and Trademark Office approved Apple’s application to register APP STORE as a trademark. Microsoft has opposed that application’s registration. The matter is currently subject to opposition proceedings before the Trademark Trial and Appeal Board.

Apple’s complaint also mentions advertisements which claim, “If you don’t have an iPhone – you don’t have the App Store,” but it is hard to believe that Apple’s legal team considers this bit of puffery to have any legal significance in the face of a clear history of tools like dpkg, which, despite Robertson’s emphasis on “single click” solutions to software installation and management, represents a 1993 solution to the same desire: to install and maintain programs on a computer with a bare minimum of user effort. In order for Apple to succeed in an application to register “App Store” one would expect Apple to prove the two component pieces were not separately in use and or the combination is other than generic. This is not a plausible claim, as the obvious abbreviation for “application” is “app”, “store” is a very common word, and there is nothing about combining the two that is particularly innovative or unexpected. Instead we have a scenario similar to a hypothetical in which Pepsi tried to trademark the word “cola” or Kleenex tried to trademark the word “tissue”. Such efforts should fail.

David Edwards reports at The Raw Story that a domain owner has been arrested for linking to copyrighted material:

mccarthycomplaint –

Social Science Research Center has released it’s report “Media Piracy in Emerging Economies” under the Consumer Dilemma license, which must be read to be appreciated:

• US$8 for non-commercial use in high-income countries—a list that for the present purposes includes the USA, Western Europe, Japan, Australia, Israel, Singapore, and several of the Persian Gulf States (Kuwait, Qatar, the United Arab Emirates, Brunei, and Bahrain), but not Canada.
• Free for non-commercial use outside the above-listed high-income countries.*
• US$2000 for commercial use, defined as use by businesses that realize financial gain from film, music, software, or publishing, and/or the enforcement of copyrights thereof, with annual revenues greater than US$1 million. Volume licensing is available.

A softcover print edition is available for $27.95

“Use,” in this license, refers to the acts of acquisition, not to the commercial reproduction or sale of this work, which is prohibited without permission from the publisher.

The terms of this license do not restrict use pursuant to copyright limitations and exceptions under applicable law.

Non-compliance with this license (or with appropriate fair use/fair dealing exceptions and limitations) is an act of piracy, subject to prosecution under applicable national law. For US residents, this includes criminal prosecution under the No Electronic Theft (NET) Act, punishable by up to five years in prison and $250,000 in fines per act of infringement.

For those who must have it for free anyway, you probably know where to look.

* Determined by the IP address of the visitor.

The EFF has a post up on proposed “Do Not Track” policy.

Do Not Track is important because it creates a policy mechanism to augment the privacy enhancing technologies that we currently have. There is an arms race between practical privacy tools and ubiquitous online tracking, and we fear that the trackers have powerful techniques that will almost always allow them to win the arms race against ordinary people.

Perhaps cynically, this author suspects such an initiative is futile. It is, to coin an admittedly awkward phrase, consumer privacy theater. The entities most likely to abuse such tracking are not likely to be influenced by an optional plan. In order to fully appreciate the matter, readers are invited to visit EFF’s Panopticlick. So long as data can so easily be collected, there is no reason to think it won’t be.