Cyberlaw Central

A good article over at the Wall Street Journal on the recent controversy over warrantless searches of laptops was pointed out to me by Venkat Balasubramani. Thanks, Venkat!

The article is worth reading as it discusses the recent cases involving searches of electronic items at the border (based upon a “reasonable suspicion” test), and contrasts that to searches the police can do when you are stopped for another reason. The latter doctrine is called “search incident to arrest” and is meant to allow the police to search the person’s immediate possessions, or “containers,” to search for items that are dangerous, like a gun, or from concealing or destroying evidence. The question is whether the same doctrine will allow the police to search your cell phone, iPod, or laptop.

It’s an untested area of the law, and one which can be debated. Certainly, it is easy to imagine a scenario where a person is able to quickly wipe the memory on the laptop, etc. before a regular warrant could be obtained. The flip side would be that the officer could detain the item for a short period of time until a warrant could be obtained.

Any thoughts? Let me know in the comments.

It’s been 10 years today since President Clinton signed the Digital Millennium Copyright Act into law.

Wired has put together a nice retrospective, available here. They call it a misunderstood law that created the Internet commerce as we know it today.

Public Knowledge’s take on the act is here.

David Robinson at Freedom To Tinker has Part I of a retrospective here.

The Electronic Frontier Foundation covers “Unintended Consequences: 10 years under the DMCA” here.

The McCain campaign’s efforts to have YouTube deal with DMCA takedown notices directed to its commercials uploaded to the video sharing site differently from other content owners have been rebuffed. Recent commercials have featured clips taken from CBS News and other news sources, which the campaign argues is a fair use of the material. Rather than file a counter-notice as allowed by the DMCA, the campaign instead has written a letter requesting expedited review of their fair use claims.

To their credit, YouTube’s response acknowledges the urgency of the McCain campaign’s situation, but reminds them that there are alternative solutions. The company will not favor any one political candidate, which I believe is the right solution. The law is clear regarding the available options, and making an end run around the counter-notification provisions is not one of them.

Here’s a link to a good article written by Declan McCullagh if you would like to read more about this situation.

Here’s a link to a great article by Professor Lessig on the need for copyright reform. Despite the article’s title, he’s really not defending piracy per se, but merely noting that the law criminalizes certain behaviors that he believes should instead be encouraged. It’s well worth a read.

Posting here on the blog has been rather lax lately, I’ve apologized directly to those who have inquired. I’ve been busy with work, as well as some speaking. For example, I did a repeat of my copyright presentation to the Chicago Bar Association’s seminar on IP law for non-IP attorneys on October 1st.

Interested people can also follow me on Twitter, my profile is at http://www.twitter.com/cyberlaw. The discussions there are limited due to the 140 character limit per post, or “tweet”, but I believe it is a worthwhile forum. Topics are wide ranging and are usually non-legal, so caveat emptor.

In the meantime, enjoy the above-linked article.