Cyberlaw Central

The results of the FCC’s wireless spectrum auction are of particular interest to more than just people in the telecom industry, as it will significantly impact how people access the Internet for years to come.

It’s no big surprise that Verizon is the big winner, but I especially enjoyed reading Susan Crawford’s analysis of the issue of what Verizon will do with it entitled “Why Block C Matters.” Susan is an ICANN board member, as well as a law professor at Cardozo Law School. I agree with her that it confirms the existing business model of handheld devices being used to access the Internet.

It also means that we’re going to have to deal with Verizon’s dominance in this segment of the market.

It also means that we’re going to have less options for wireless access than we otherwise would have had if others would’ve won the bidding.

It also means that we’re going to have a company who can bring market pressures to bear to discriminate against other carriers, all while promising in public to have an “open” network.

I wonder if we will someday look back on this day as the day in which the wireless Internet changed.

Mike Masnick at Techdirt has written the latest in a series of posts which discuss the rationale and basis for what we think of as “Intellectual Property.” It’s a well written series, I’d recommend that you read it. I don’t agree with all he says, but it’s well reasoned.

It’s of particular interest to me because I often counsel people on their creative endeavors who do not know what regime under the umbrella of “intellectual property” their particular endeavor is best, whether it be trademark, copyright, patent, or trade secrets. It’s also interesting because people often think of “cyberlaw” as being the intersection of intellectual property and the Internet, but it really is much more than just that. It’s the application of both new and existing legal principles, whether they be IP or other regulations, to the Internet and other avenues of electronic communications. As more and more businesses go online, it’s rarer that people won’t have some issue that intersects with cyberlaw at one point or another.

Turning back to the article, to me the most important rationale for copyright and patent protection is the protecting the right of the creator to control the use, distribution, or exploitation for their ideas for a limited period of time. Trademark is a slightly different rationale, in that trademarks are tied into a consumer protection rationale and the right to identify the source of particular goods or services to avoid consumer confusion.

So, what rationale do you think is best to apply? Also, what term would you use other than “intellectual property” if you had a choice to do so? Those are certainly interesting questions posed by the article. Food for thought, as they say.

Raymond Niro, principal of Chicago firm Niro Scavone Haller & Niro, has posted a $10,000.00 reward for the identity of the anonymous patent blogger, “Troll Tracker.” For a discussion of the issues, here’s a link to the ABA Journal article on the subject. Full disclosure - the “Kevin A. Thompson” who posted in the comments is not me.

For the record, while I support anonymous speech, harmful speech cannot be supported. Until the “Troll Tracker” reaches that level, he or she is entitled to keep posting. And, until then, Mr. Niro’s reward is one of the few options he has to determine who the anonymous blogger is. But, when he or she does reach that level of harmful speech, then Mr. Niro may have more legal options to compel the disclosure of the identity. I just hope that the reward doesn’t have an unfortunate consequence - the “Troll Tracker” points out that his site is being hacked, which is itself a crime.

That comment from another “Kevin A. Thompson” is what made me want to write about this topic - I thought long and hard about how I was going to prove it wasn’t me. That’s the nature of identity on the internet - it’s hard to prove one way or the other. Essentially, we’re all judged by what we post or link or otherwise comment upon. While there can be an appeal to the ABA Journal’s records for some indicia of who made the post, there’s no link to wherever the poster claims as his own site. It’s just a name, posted online, in comments on a freely available site. And, it’s not me. For the record.

Here’s a link to the last post, written before his death, that blogger Andrew Olmstead wanted published in the event he died while serving in Iraq. He posted at the site Obsidian Wings as G’Kar, a character from Babylon 5. His choice of that character resonates with me as a fan of the show. The post is interspersed with some great quotes spoken through the series by that character as well as a few others, if you’re not already a fan of the show I can’t recommend it highly enough. And, it’s all available on DVD for you newbies.

What makes this particularly worthy of posting here are Andrew’s comments on the ephemeral nature of the web, that his last words will last only so long as someone continues to pay the hosting bill.

Here are a few short items of interest I’d like to pass along:

1) Conrad Jacoby has a great article on the electronic discovery of employee-owned computer equipment that was published at llrx. Here is a link.

2) If you’ve not already seen Michael Wesch’s video called Information R/evolution, check it out now. It only takes a few minutes, but is well worth it.

Jacqui Cheng’s article at Ars Technica points out the dilemma facing consumers who want to hack their iPhones so they are not tied to Apple’s exclusive service provider in the USA, AT&T. While hacks are available, they are quasi-legal at best. And, users who do it face the possibility that their $600/$400 iPhone could become an expensive brick when Apple next pushes updates to the phone.

While hack providers point out that recent amendments to the DMCA allow individual users to hack a phone to be put on any network, this exception was not intended for this particular situation. It’s supposed to be for people with older phones whose contracts are expired and/or can’t be used with their prior network because the company doesn’t exist anymore. It’s doubtful that this exemption will prevent Apple from going after the authors of these hacks, or allow Apple to be sympathetic to any users whose hacked phones become bricks.

As always… caveat emptor.

Here’s an interesting article, written by Declan McCullagh and Anne Broache, entitled “Will security firms detect policy spyware?”

There are currently no rules that specifically require companies to comply with requests for government spyware to be installed on users’ machines. There similarly is no current requirement for anti-spyware vendors to write software that doesn’t detect government spyware. The article does a good job discussing some vague language in the Wiretap Act that could be used in an effort to make such a request, but of course whether such an argument would be successful is unknown.

(Hat tip to Bruce Schneier for the link)

Although I’m not a patent attorney, I was drawn to news of Microsoft’s statement in a Fortune article that free and Open Source software violated 235 of its patents. Mary Jo Foley covered the news in detail here. In particular, the claim was made by Microsoft’s Horacio Gutierrez that the Linux kernel violates 42 Microsoft patents, Linux graphical user interfaces violate 65, Open Office violates 45, some e-mail programs violate 15 more, and others violate another 68 patents. As a happy user of OpenOffice, I am concerned as well.
Microsoft has addressed its patents in other open source software by granting licenses, it is unclear currently whether this is a declaration of war by Microsoft to preempt the upcoming version 3 of the GPL, or possibly a bargaining chip to increase its leverage. Only time will tell.

I’d be curious to get a reaction to this news from a Patent attorney, either privately by email or in the comments.

UPDATED TO ADD: You can read Dennis Crouch at Patently O’s take on the statement here, be sure to check out the comments, too.

I attended the session this morning at INTA 2007 on Internet advertising, specifically the focus was on keywords but popups were discussed as well. The speakers were Peter Becker of Microsoft, Laura Covington of Yahoo, Lauren Fisher of AOL, and Rose Hagan of Google.

The most interesting part for me was a comparison of the different notice and takedown procedures implemented by each company. In particular, Google is unique in that it takes down all uses of a competitor’s trademark, even in cases of fair use such as in comparative advertising. While broader than what the law requires, it was easier for Google to administrate such a policy because, as the other speakers admitted, it is hard to scale a system which requires a balancing of factors like fair use.

I would have appreciated a more thorough analysis of whether using a trademark as a trigger for the display of an advertisement is a trademark use. Some courts say yes, and others say no. The speakers, of course, were advocating the more favorable to them “no”, but it is a complicated issue that deserved better.

Overall, the session was a good one, quite packed in terms of attendees. I was glad to have found a seat near the front.

Imagine you need to take a file with sensitive data on it with you on a trip, but the only method you have available is a small USB thumb drive. You get to your destination only to discover the drive fell out of your pocket somewhere along the way. What a disaster, the hardest for me would be having to explain to those affected by the data breach what happened to their data.

So, what’s the solution? Use Truecrypt to secure the drive. You can take a blank drive with no data on it, add the Truecrypt Traveller Disk software, and then create a “container” to hold the data which is encrypted. The idea is that the container should fill the rest of the drive. The Truecrypt software can very easily be set up to run from the USB drive on any Windows computer you attach it to (the only caveat is you have to be in administrator mode) and allow you to mount the drive. You only need to enter your password when mounting the drive - once attached, it works like any other drive, it selects the next available drive letter to use.

I think it works great, it’s a very elegant solution to the problem. The software is open source, and supports multiple encryption formats if you want to get arcane, but the defaults are plenty strong so long as you use a good long password with letters and numbers and symbols.