Blawg Review #295

Welcome to a special “Cyberlaw” edition of the weekly carnival of legal blogging, Blawg Review! I am honored to host, especially since today, January 24, 2011, is a special day. It’s the 27th anniversary of the first sales of the Apple Macintosh [I’m writing this on a Macbook Pro, the best laptop I’ve yet owned]. So, we’ll look at some of the best legal-related Mac and Apple blogging this week. January 24th is also the 8th anniversary of the day the Department of Homeland Security officially began operations, so we’ll look at some great security and internet posts as well. I’ve also included a few others I found particularly noteworthy. It just wouldn’t be Blawg Review without an eclectic mix of this week’s posts.

I certainly would like to point people to another great way to keep up with the best posts around – Colin Samuels’s Round Tuit. I really liked this week’s entry, #53. Way to go, Colin, and thanks for getting around to sharing these posts with us.

Internet Law
Eric Goldman’s post on the new book “The Next Digital Decade” is well worth reading. The book itself is a free PDF download. Eric says:

What makes this book so special is that *every* essay I’ve read is top-notch. In contrast, in many essay collection books, the essays are spotty—some great, some clearly inferior. Berin and Adam did a fantastic job curating the collection. They also did a nice job tying the essays together into coherent chunks.”

Homeland Security
Critics of the Department of Homeland Security often point out that it is “Security Theatre.Art Carden asks the incoming Republican House of Representatives whether we really need a Department of Homeland Security or a TSA. He says:

“The Department of Homeland Security and the TSA are clear examples of trading something to get–not nothing, but actually less than nothing because they actual imperil our safety. If we are serious about the Constitution and serious about security, we will get rid of them.”

In the New American, Jack Kenny writes about DHS’s policy of laptop seizures:

There appears to little choice for those confronted by border agents demanding their computers and cell phones. Refusing to yield them means the traveler won’t be allowed back into the country, in essence a sentence of exile. Since most people like to return home from their travels at some point, compliance is virtually assured.”

Wikileaks is still in the news. This week, Glenn Greenwald writes in Salon that the Obama administration has been caught lying about the severity of the damage done by Wikileaks to US interests. He says:

“And this, of course, has been the point all along: the WikiLeaks disclosures are significant precisely because they expose government deceit, wrongdoing and brutality, but the damage to innocent people has been deliberately and wildly exaggerated — fabricated — by the very people whose misconduct has been revealed. There is harm from the WikiLeaks documents, but it’s to wrongdoers in power, which is why they are so desperate to malign and then destroy the group.”

Venkat Balasubramani had a great post on a novel theory of “contributory cybersquatting”.

It’s tough to say whether this cause of action will alter the landscape for either cybersquatting or dilution, or whether this is a scenario where the court let the contributory claims move forward since Microsoft alleged primary claims for cybersquatting that on their face look strong. (Courts seem to have this bad habit.) If it sticks, it seems like a broadening of the scope of ACPA liability, which courts in the Ninth Circuit seem willing to do. “

The Comcast/NBCU Merger
Be sure not to miss Susan Crawford’s great initial analysis of the FCC’s conditions on the proposed Comcast/NBCU merger:

“Now that Comcast is deeply invested in content as well as distribution, there’s a substantial risk that it will wield its power to favor its own programming. It has a built-in conflict of interest.
Because Comcast doesn’t face real competition for bundled services (very-high-speed wired Internet access, voice, video) in the communities in which it operates, that conflict of interest isn’t constrained by market forces.
The agencies have established conditions that they believe will mitigate the risks of the transaction for the public. Some of the conditions have to do with protecting competitive online video services that have the potential to constrain the pricing of Comcast’s pay-TV services.”

Radley Balko writes about another Illinois resident who has been charged with violating Illinois’s eavesdropping law for recording conversations with police. She had recorded her conversations with Internal Affairs officers after reporting her alleged sexual assault by a police officer.

“So five months later, they’re still investigating a possible sexual assault by a police officer. But they had no problem immediately arresting, charging, and jailing the woman who tried to report it. That would seem to send a pretty clear message about how seriously the city takes police misconduct.”

DMCA Takedowns
Jonathan Bailey had a great post this week discussing the Chilling Effects website. Jonathan doesn’t fear it, and explains why you shouldn’t fear it either:

“If you are ashamed of the notice or are uncomfortable with public scrutiny of your actions, you should probably not be filing the notice in the first place.”


Computer Security
Galrahn’s post on “Our Flawed National Cyber Security Focus” is well worth reading. I liked this part the best:

“This is the best advice for those who think about cyber warfare issues: The reason no one understands cyber warfare is because nobody understands cyber warfare. Repeat that sentence until you get it. Cyber warfare is people, not networks. Think of domain as terrain, and attacking the network is like bombing the ocean. Security in cyber warfare is measured by mitigation, risk assessment, and resiliency; and measures that go beyond those areas almost always do more harm than good and do not represent security at all – rather represent attempt at control.”

Personally, I think we’re bound to see more Cyber Warfare like the Stuxnet worm. I liked Jack Newton’s discussion of Stuxnet in Slaw:

“Widely believed to be designed by the US and Isreali governments, the main targets of the Stuxnet worm were industrial controllers made by Siemens. While used in thousands of factories for legitimate manufacturing processes, the Siemens controllers targeted by Stuxnet were also used to enrich uranium at Iran’s Natanz nuclear facility. To ensure Stuxnet did not cause any collateral damage, the worm’s programmers were careful to ensure only the specific configuration of machines known to be present at the Natanz plant would be targeted by the worm.”

Still, Bruce Schneier reminds us that “Cyberwar is Overhyped.”

Chris Soghoian had a great post on the history of the “Do Not Track” header. It’s well worth reading.

I also liked Michael Geist’s post on the uproar in Canada over usage based billing.

Domain Names
For a look back at 2010 in domain names, be sure to read Elisa Cooper’s domain name year in review post. Number four struck a chord with me:

4 – US Government seizes domains linked to illegal file sharing and counterfeit goods.

I liked the analysis at the Bright Spark blog of the European Court of Justice’s take on the copyright protection for graphical user interfaces:

“The Bright Spark considers that the ECJ cannot be saying that a GUI is necessarily protected by copyright if it constitutes the author’s own intellectual creation. No EU directive purports to provide a complete list of the requirements for copyright protection – indeed, the requirement that the work constitutes the author’s own intellectual creation comes from a judgment (Infopaq) and not a directive. In particular, EU law does provide that some types of work (e.g. computer programs) must be given protection in domestic law, there is no directive purporting to provide an exhaustive list of types works which must be protected.”

I liked Pamela Chestek’s article explaining a decision of the 11th Circuit regarding the ownership of the UNIX trademark.

Twitter (And Other Social Media) Use by Lawyers
You can certainly follow me on Twitter, but don’t count me among the Twitterati. Among the Illuminati, perhaps, but not the Twitterati for sure. That’s why I really enjoyed the Time Blawg’s account of “Law Firm Twitteratigate: The Whole Story.” Some good questions are asked at the end:

“Do you think we need to measure law firm effectiveness on Twitter and if so how should we do it? Why do the smaller law firms appear to be managing Twitter better than the big law firms? What should the big law firms be doing to improve their lot on Twitter? Any other thoughts?”

Be sure to read Antonin Pribetic’s great take on the “Social Media Marketers” – he proposes a new label for those who follow such advice – the “Flawg.”

Flawg”: noun. A legal blog without any substantive legal content that is created, monetized and promoted exclusively for profit. A Flawg will often contain posts about the latest legal tech gadgets, or the how to gain new clients through the awesome power of the internet, in the absence of anything remotely legal to discuss;
Flawger”: noun: someone who flawgs. Usually, a non-lawyer/social media law marketer, (but also a disbarred/suspended/unemployed/underemployed/retired/or failed lawyer who quit) who writes blawg posts about how to write blawg posts, SEO, ROI, iPads, cloud computing, top ten lists, and enjoys attending law marketing conferences and twittering about using #hashtags.”

The big Apple news this week was Steve Jobs’s medical leave of absence from Apple. My personal take is get well soon, Steve, and I really don’t need to know more about why. Still, Ashby Jones raises the question – Does Apple owe its investors a better explanation as to why due to its obligations under securities laws? Apple has faced other lawsuits recently over its apps disclosing information to third parties, so it is interesting that when it’s its founder’s personal information Apple is tight lipped. Still, if it were me, I’d certainly want my medical information private. Let’s give him the same respect, folks.

Apple recently introduced its App Store for Macs, but Apple is currently fighting with Microsoft over the genericness of the term “App Store.” After all, generic terms cannot become trademarks. See coverage here from Marty Schwimmer and here. from Paul Stanfield.

For those of you lawyers with iPads (not me yet), Greg Lambert of “3 Geeks and a Law Blog” has a great review of a new way to stay up to date with your blog reading – the Curator HD app. For those of you considering getting an iPad, Tablet Legal had a great series recently on apps a lawyer would use. Personally, I’m waiting for Version 2 at least, as my Macbook Pro does all an iPad does (and more).

I liked the Vidster’s summary of happenings with DNA, cold cases, and funding for forensics at the Defrosting Cold Cases blog.

I liked Brian Tennenbaum’s take on those who went to law school for the wrong reasons and are now complaining that there are no jobs, their student loan debt load, etc.

You *have* to check out Big Legal Brain. It’s soooo funny! Here’s hoping I don’t verbiate my nouns too much. You see, I’m hoping I haven’t borked this Blawg Review too badly. 🙂

If you missed it, be sure to read last week’s Blawg Review in honor of Martin Luther King by Gideon.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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