IP/Internet/New Media Blog

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.

Electronic Frontier Foundation’s second set of comments on the FCC’s authority to regulate the internet:

Now, we turn to the substance of the FCC’s Order, and specifically how the Order stacks up against the concerns we raised in our January, 2010, comments to the FCC about the FCC’s October 2009 Notice of Proposed Rulemaking (NPRM). (The Order raises other concerns for us as well, like the exclusion of wireless, that aren’t addressed here; this post just tracks the issues discussed in our NPRM comments.) While we’re big supporters of an open Internet and neutrality in practice, we were concerned that the proposed rules would create large loopholes for non-neutral behavior and barriers to entry for small noncommercial providers.

Unfortunately, it appears the FCC doesn’t share our concerns—or at least not enough to make real changes. While the new rules do take account of some of our smaller points about the NPRM, the FCC has made only a cosmetic effort to tackle the bigger problems.(emphasis added)

Torrentfreak reports Department of Homeland Security allegedly erroneously siezed the domain, mooo.com. Because mooo.com hosted the service FreeDNS, which in turn provides sub-domains to thousands of users, the DHS act affected each of those sub-domains. Visitors to those sites were greeted with a DHS/ICE graphic warning of the penalties for distribution of child pornography.

The seizure occurred on February 11. It was reversed on February 13. A February 15 press release from DHS fails to mention the 84,000 potentially wrongful publication of accusations of distribution of child pornography.

White House Press Release, February 8, 2011. Commentary to follow.

ESTABLISHMENT OF THE INTELLECTUAL PROPERTY

ENFORCEMENT ADVISORY COMMITTEES

 

     By the authority vested in me as President by the Constitution and the laws of the United States of America, including title III of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (Public Law 110-403)(15 U.S.C. 8111-8116) (the "PRO IP Act"), and in order to strengthen the efforts of the Federal Government to encourage innovation through the effective and efficient enforcement of laws protecting copyrights, patents, trademarks, trade secrets, and other forms of intellectual property, both in the United States and abroad, including matters relating to combating infringement, and thereby support efforts to reinvigorate the Nation's global competitiveness, accelerate export growth, promote job creation, and reduce threats posed to national security and to public health and safety, it is hereby ordered as follows:

     Section 1.  Senior Intellectual Property Enforcement Advisory Committee.

     (a)  Establishment of Committee.  There is established an interagency Senior Intellectual Property Enforcement Advisory Committee (Senior Advisory Committee), which shall be chaired by the Intellectual Property Enforcement Coordinator (Coordinator), Executive Office of the President.

     (b)  Membership.  The Senior Advisory Committee shall be composed of the Coordinator, who shall chair it, and the heads of, or the deputies to the heads of:

(i)     the Department of State;

(ii)     the Department of the Treasury;

(iii)     the Department of Justice;

(iv)     the Department of Agriculture;

(v)     the Department of Commerce;

(vi)     the Department of Health and Human Services;

(vii)     the Department of Homeland Security;

(viii)     the Office of Management and Budget; and

(ix)     the Office of the United States Trade Representative.

James Cowie at the Renesys blog reports Egypt has severed itself from the international internet:

At 22:34 UTC (00:34am local time), Renesys observed the virtually simultaneous withdrawal of all routes to Egyptian networks in the Internet’s global routing table. Approximately 3,500 individual BGP routes were withdrawn, leaving no valid paths by which the rest of the world could continue to exchange Internet traffic with Egypt’s service providers. Virtually all of Egypt’s Internet addresses are now unreachable, worldwide.(emphasis added)

For some, Egypts acts call to mind S.3480 – Protecting Cyberspace as a National Asset Act of 2010, popularly referred to as “the internet kill switch”, which arguably would give a sitting United States President authority to order similar shutdowns. In a June 15, 2010 article, Declan McCullagh of cNet wrote:

TechAmerica, probably the largest US technology lobby group, said it was concerned about “unintended consequences that would result from the legislation’s regulatory approach” and “the potential for absolute power”. And the Center for Democracy and Technology publicly worried that the Lieberman Bill’s emergency powers “include authority to shut down or limit internet traffic on private systems.”.

While discussion of the U.S. Legislation centered around actual computer based attacks on government computers, concern remains that the elements of a qualifying threat could be construed to include use of internet services to coordinate mass non-violent protest or civil disobedience. If the meaning of “cybervulnerability” was found to include such concerns then a sitting U.S. President could easily follow Egypt’s example in response to activities otherwise protected by the 1st Amendment. That such a reading is possible is perhaps reflected in the very name of the bill, which invokes the dated and less than edifying term “cyberspace“, coined in a 1982 science fiction story and which, when used modernly, suggests a less than current and robust conceptualazation of that which is to be regulated or protected.

J.D. Rucker at techi.com writes:

In essence, Google is removing keywords from their Suggest and Instant results so that they are no longer recommended when people start typing them. If you continue all the way through on a term such as “BitTorrent,” Google will offer the results. Reluctantly. They won’t help you out at all, even if you type all the way to the “n.” Try typing in “BitTorren” without the last “t” into Google.

Rucker certainly isn’t the first to express concern over the shaping power of text completion in search terms, with some expressing similar concerns over text completion in mobile devices. Nor does it seem likely Google will be able to credibly argue demonstrable greater interest in making mustard gas than in the popular bitorrent protocol. Rucker does not go so far as to suggest Google’s choice is the result of industry pressure, but the inference is easily reached:

It’s their search and they’ve made their choice. The funny part is that something as relatively harmless as downloading torrents is considered taboo on Google, but there are plenty of other more harmful searches that Google is all too willing to recommend…

(BHBA Event Registration Here)

"Acknowledgement with appreciation to
Association of Media and Entertainment Counsel (AMEC)for marketing assistance"

Media technologies continue to evolve at a rapid pace. This evolution has remarkably changed the methods by which content and information are distributed, the manner in which people share and communicate, and the legal risks for businesses. Keeping up with the latest technological innovations can be a challenge, but this program will provide an overview of the latest trends and legal issues so you can help clients navigate today’s evolving media landscape.

Back by popular demand to give a 3rd annual State of Evolving Media address is leading IP and new media lawyer James D. Nguyen, a partner in the Beverly Hills office of Wildman, Harrold, Allen & Dixon LLP. In his dynamic, entertaining style, Jimmy will discuss:

The latest technology and business trends with evolving media, including:

Digital distribution of audiovisual content
Rise of the real-time web
Group buying deals for online portals
Image-driven social network sites
Apps move onto more devices
Smartphone games
Games of chance and skill go digital

Key legal issues in the evolving media landscape

Current copyright and DMCA issues
Immunity under the Communications Decency Act
Online privacy issues
Advertising and marketing challenges in evolving media

About the Speaker

Jimmy Nguyen is a partner in the Beverly Hills office of Wildman, Harrold, Allen & Dixon LLP, a leading firm for new media and entertainment law. After graduating law school at age 22, Jimmy has quickly become a leader in evolving media. In 2008, Lawdragon named him, at age 36, one among the 500 Leading Lawyers in America, describing him as: "Wildman’s dynamo talent is a one-stop shop for companies in entertainment, technology, advertising, sports and other industries seeking IP, litigation and transactional advice." In 2010, the Daily Journal

Jimmy is Immediate Past Chair of the Executive Committee for the State Bar of California’s IP section. He formerly co-chaired the Beverly Hills Bar Association’s IP, Internet & New Media section, and served on the Law Firm Advisory Board for the Association of Media & Entertainment Counsel (AMEC). An advocate for diversity, in 2010, he was Co-Chair of the California Minority Counsel Program and continues to serve on CMCP’s Board of Directors.

Jimmy is a 7-time national gold medalist in collegiate speech competition. He is a frequent speaker on entertainment, new media, IP and diversity topics. He loves to laugh (and hopes you laugh with him), and is seeking to bring more positive, creative and digitally expressive energy to the legal and evolving media sectors

Time and Location:

Cost:

The Electronic Frontier Foundation(EFF) has compiled a comparison of how 13 social media companies “handle [law enforcement] requests for user information such as contact information, photos, IP logs, friend networks, buying history, and private messages.”

Of the guides we received, only Craigslist provides law enforcement disclosure information on its website (Twitter does too, but we didn’t get a copy of its guide in response to our FOIA request). This is unfortunate. Social media sites’ users should be able to see how the companies that hold their data respond to government requests for it. And, as we know, this affects a large number of real people. Twitter states that it has 175 million users. Myspace has over 100 million, and Facebook states it has 500 million. Without access to this information, it is impossible to evaluate how well these companies protect their users’ data.

The comparison documents are available in .xls and .pdf. Individual guides can be found here.

As blogged by Ben Sheffner, Associated Press announced via release:

In settling the lawsuit, the AP and Mr. Fairey have agreed that neither side surrenders its view of the law. Mr. Fairey has agreed that he will not use another AP photo in his work without obtaining a license from the AP. The two sides have also agreed to work together going forward with the image and share the rights to make the posters and merchandise bearing the image and to collaborate on a series of images that Fairey will create based on AP photographs. The parties have agreed to additional financial terms that will remain confidential.

Sheffner’s discussion includes mention of suits pending between AP and Fairey’s corporate entities, as well as fine points of the arguments offered by both sides.

The United States Supreme Court has denied the certiorari petition of Sony Music Entertainment, et al., in the case of Starr v Sony (2nd Circuit Docket No. 08-5637-cv.).

Plaintiff Kevin Starr argued in District court that Sony and other labels violated the Sherman Act under Bell Atlantic v Twombly (425 F. 3d 99). The District court dismissed for lack of a claim. Starr appealed to the 2nd Circuit, which vacated the district court’s judgment and remanded. Sony, et al, petitioned for certiorari, hoping to have the District judgment upheld. Cert. was denied January 10, 2011. The case will thus return to the District court.

From the Circuit decision:

By early 2005, Defendants Sony BMG’s, Capitol-EMI Music’s, UMG’s and WMG’s direct costs had gone substantially down because each of these Defendants’ digitization costs of the initial cataloging had been completed, technological improvements (including increased computer processing power and speed) had reduced the remaining costs of digitizing new releases, the return and store credit and other costs alleged in ¶ 71 remained at zero or virtually zero despite substantially higher sales volumes, and the fixed costs of each of these Defendants’ digital business per unit of sales volume had declined by approximately two-thirds. Nonetheless, these Defendants then engaged in or about May 2005 in the parallel, highly unusual behavior of each raising prices from the 65 cents per song level to at or about 70 cents per song.

These parallel, highly unusual increases in prices when direct costs had substantially decreased, enforced by MFNs, were similar to Defendants’ causing, as alleged in ¶¶ 74-75, the joint ventures, via MFNs and other means, to increase the prices of Internet Music during 2002 to 2003 to unreasonably high levels despite substantial reductions in the direct costs of Internet Music relative to CDs.

By Memorandum and Order dated October 9, 2008, the district court granted the defendants’ motion to dismiss, holding that the complaint did not state a claim under Bell Atlantic Corp. v. Twombly. The district court first found that plaintiffs did not challenge the existence or creation of the joint ventures, and the operation of the joint ventures therefore did not yield an inference of illegal agreement. At the same time, the district court held that plaintiffs’ “bald allegation that the joint ventures were shams is conclusory and implausible.” In re Digital Music Antitrust Litig., 592 F.Supp.2d 435, 442 (S.D.N.Y.2008). According to the district court, plaintiffs did not challenge the joint ventures’ “explicit agreement,” and any inference “of subsequent agreement based on prior, unchallenged explicit agreement is unreasonable.” Id. at 443. The district court went on to hold that other circumstances alleged by plaintiffs were “equivocal” and did not justify the inference of agreement, and the imposition of the unpopular DRMs and pricing structure was not against defendants’ individual economic self-interest when viewed against the backdrop of widespread music piracy. Id. at 444-45. Finally, the district court denied plaintiffs’ motion to amend paragraph ninety-nine of the SCAC as futile. Id. at 445 n. 14. This appeal followed.

* * *

Defendants’ arguments that plaintiffs have failed to state a claim are without merit. Defendants first argue that a plaintiff seeking damages under Section 1 of the Sherman act must allege facts that “tend[ ] to exclude independent self-interested conduct as an explanation for defendants’ parallel behavior.” Appellee’s Br. 15-17. This is incorrect. Although the Twombly court acknowledged that for purposes of summary judgment a plaintiff must present evidence that tends to exclude the possibility of independent action, 550 U.S. at 554, and that the district court below had held that plaintiffs must allege additional facts that tended to exclude independent self-interested conduct, id. at 552, it specifically held that, to survive a motion to dismiss, plaintiffs need only “enough factual matter (taken as true) to suggest that an agreement was made,” id. at 556; see also 2 Areeda & Hovenkamp § 307d1 (3d ed. 2007) (“[T]he Supreme Court did not hold that the same standard applies to a complaint and a discovery record․ The ‘plausibly suggesting’ threshold for a conspiracy complaint remains considerably less than the ‘tends to rule out the possibility’ standard for summary judgment.”).

CNET is reporting the Obama administration will charge the Commerce department with establishing internet IDs:

That news, first reported by CNET, effectively pushes the department to the forefront of the issue, beating out other potential candidates, including the National Security Agency and the Department of Homeland Security. The move also is likely to please privacy and civil-liberties groups that have raised concerns in the past over the dual roles of police and intelligence agencies.(emphasis added)

It might overstate the case to say this move “pleases” privacy and civil-liberties groups. Instead this may be viewed by such groups as an attempt to end-run 4th Amendment protections by substituting governmental surveillance with commercially collected demographic information and datamining.

At the risk of presenting a viewpoint adverse to the interests of some of the clients of some of our readers, the IP/Internet/New Media Blog invites you to visit What Could Have Been Entering the Public Domain on January 1, 2011? at the Center for the Study of the Public Domain:

What other works would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

• The first two volumes of J.R.R. Tolkien’s Lord of Rings trilogy: The Fellowship of the Ring and The Two Towers
• Samuel Beckett’s Waiting for Godot (his own translation/adaptation of the original version in French, En attendant Godot, published in 1952)
• Kingsley Amis’ Lucky Jim
• Aldous Huxley’s The Doors of Perception
• Dr. Seuss’ Horton Hears a Who!
• Pauline Réage’s Histoire d’O
• Fredric Wertham’s Seduction of the Innocent, subtitled “The influence of comic books on today’s youth”
• Tennessee Williams’ Cat on a Hot Tin Roof
• Mac Hyman’s No Time for Sergeants
• Alan Le May’s The Searchers
• C.S. Lewis’ The Horse and His Boy, the fifth volume of The Chronicles of Narnia
• Alice B. Toklas’ The Alice B. Toklas Cookbook

***

If the pre-1978 law were still in effect, we could have seen 85% of the works created in 1982 enter the public domain on January 1, 2011. Imagine what that would mean to our archives, our libraries, our schools and our culture. Instead, these works will remain under copyright for decades to come, perhaps even into the next century. And for most of them – orphan works – that means they will be both commercially unavailable and culturally off limits, without any benefit going to a copyright holder.(emphasis added)

The matter of orphaned works is particularly troubling, as there is no way to measure the value of what could be made of them were they released to the public. Under current policy they serve no one. While IP attorneys must zealously advocate the interests of their clients, and IP corporations are beholden to their shareholders, IP policy is, by Constitutional text, aimed at promoting the useful arts and sciences. This author sees no way to justify the current status of orphaned works in the context of the Constitutional aim.

The New York Times has an interesting opinion piece penned by Stanley Fish, seeming to suggest protection of anonymous speech on the net is a questionable public policy.

The practice of withholding the identity of the speaker is strategic, and one purpose of the strategy (this is the second problem with anonymity) is to avoid responsibility and accountability for what one is saying. Anonymity, Martha Nussbaum, a professor of law and philosophy at the University of Chicago observes, allows Internet bloggers “to create for themselves a shame-free zone in which they can inflict shame on others.” The power of the bloggers, she continues, “depends on their ability to insulate their Internet selves from responsibility in the real world, while ensuring real-world consequences” for those they injure.

It bears mention that “avoiding responsibility and accountability” includes avoiding unjust reprisal at the hands of entrenched power, either governmental or corporate, for acts of whistleblowing or other truth-telling. Some slopes are in fact quite slippery, and this author continues to support an expansive free and anonymous speech policy, on and off the net.

Photography giant, Kodak, has turned it’s IP-rights-enforcement sights on the Shutterfly web service, claiming Shutterfly is violating Kodak’s patents. From domain-b.com:

Kodak filed its suit against Shutterfly earlier this month in the US for allegedly infringing on its patents related to the display of digital images. It claims that it owns the patent to the selection of photographic images using index prints and sought an injunction against Shutterfly….this is the first time that a major player like Kodak – which has over 400 patents to its credit – has dragged another rival to court. Both Kodak and Shutterfly, who had cooperated in the past, have been offering competing services to customers.

cnet.com reports Kodak took similar action against Sun in 2002, Samsung in 2008, as well as Apple and Research in Motion in January of 2010.

Mike Masnick at techdirt offers a damning analysis of the recent ICE takedowns of 82 allegedly copyright-infringing domains:

The entirety of the evidence against Torrent Finder appears to be that because you could do a search that takes you to another site and because the site’s admin linked to some blog posts that discuss — but do not encourage — the state of file sharing, that there is probable cause of criminal behavior and your domain can and should be seized without any adversarial trial.

…

Equally troubling is that magistrate judge Margaret Nagle signed off on the warrants (literally, with a rubber stamp) without questioning any of this, from the look of things. Nowhere is there any discussion on how the seizure of domain names has nothing to do with the actual servers. Nowhere is there any discussion about first amendment issues in seizing domain names. Nowhere is there any discussion about prior restraint. Nowhere is there any discussion about the difference between a search engine and a torrent tracker. Nowhere is there any discussion about the difference between an infringing file and a torrent. Nowhere is there any discussion about the difference between a link to a news blog post about current events and encouraging people to download infringing content.

Docstoc hosts an online copy of the affidavit on which the warrant issued, here.