Why I Oppose the Stop Online Piracy Act (SOPA)/E-PARASITES Act

Eric Goldman has a great summary of the bill and its problems. Well recommended reading.

At Web Censorship Hearing, Congress Guns for “Pro-Pirate” Google

Nate Anderson at Ars Technica had a good summary of the SOPA testimony before Congress.

In other news:

RIAA Wants ReDigi Out Of The Business of Selling “Used” iTunes Tracks

This was the most interesting new application of the First Sale doctrine in copyright this week. As I understand the business sells a copy and not the actually sold iTunes track, this one may not turn out in ReDigi’s favor. This dispute will be worth watching.

Vint Cerf: The Government Is Going Overboard in Internet Copyright Control

On November 14th, Vint Cerf spoke to the Atmosphere conference:

“He told the audience, “Remember, governance is a big word that includes human rights, freedom of speech, economic transactions on a worldwide basis — it touches everything. It’s everywhere, and that’s why Internet governance is topic A in many corners.”

PhoneDog v. Kravitz

This lawsuit over corporate Twitter followers as “property” is quite interesting. Kravitz left PhoneDog with 17,000 followers, and instead of turning over the account he changed the name from “Phonedog_Noah” to his personal name. On a Motion to Dismiss, the Court (Northern District of California) decided to deny Kravitz’s motion. Well worth reading.

Judge Rules Feds Can Have WikiLeaks Associates’ Twitter Data

On November 10th, Judge O’Grady of the Eastern District of Virgina ruled that government prosecutors can have access to information about three Wikileaks supporters’ Twitter accounts – not the content, but the metadata. This decision has been criticized by the EFF.

Finally, I’d like to note that if people are interested in my firm’s IP Webinar series, the next webinar I’m presenting will be on December 7, 2011 on “Online Works: Copyright Registration and Enforcement.” For more information, follow this link.

SOPA and other @Cyberlaw Links is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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Also, for those who may be interested, here is the link to the recent webinar I did for my firm on “Common Trademark Application Problems.”

And now, on to this week’s @cyberlaw links -

RIAA Lawyer Says DMCA May Need Overhaul

Greg Sandoval of CNET had an interesting article, focusing on a statement during a panel discussion by Jennifer Pariser that the DMCA needed an overhaul.  She said:

“We might need to go to Congress at some point for a fix,” Pariser added. “Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions.”

 

In a World of Cybertheft, U.S. Names China, Russia as Main Culprits

A report from the Office of the National Counterintelligence Executive named China and Russia as the main bad actors in the world of cyber-espionage.

“Chinese actors are the world’s most active and persistent perpetrators of economic espionage,” said the report, “Foreign Spies Stealing U.S. Economic Secrets in Cyberspace,” which was based on the work of 14 U.S. intelligence agencies. The report also notes that “Russia’s intelligence services are conducting a range of activities to collect economic information and technology from U.S. targets.”

The Digital Death of Copyright’s First Sale Doctrine

Annemarie Bridy’s article is on the First Sale Doctrine and the effect that the Supreme Court’s denial of cert in the Vernor v. Autodesk case had on the doctrine. I heartily encourage you to read it.

Did Chevy Steal This Commercial Idea From a Popular Blog?

It was nice to be quoted by Matt Silverman in this Mashable article discussing the extent of copyright protection in the underlying concept of a blog.

Why Parents Help Children Violate Facebook’s 13+ Rule

This study by Danah Boyd, Eszter Hargittai, Jason Schultz and John Palfrey looked at the real-life application of COPPA and parents who help their children skirt its requirements. It’s well worth reading.

S. 978 – What Justin Bieber Has To Do With Online Streaming Bill

I was quoted in this article from the Christian Science Monitor discussing Senate Bill 978, the Commercial Felony Streaming Act.

TWiL 136 and @cyberlaw Links is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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Some recent links I found particularly interesting on Twitter include:

Net Neutrality Case Heads to D.C. Circuit

A challenge to the FCC’s new Network Neutrality rules will be heard by the D.C. Circuit, which in the past has been tough on the FCC.

Computer Virus Hits U.S. Drone Fleet

It’s a pretty sad state of affairs when higher up military leaders learn that their drones have been infected with a computer virus from reading this article in WIRED.

Tracking the Trackers: When Everyone Knows Your Username

Jonathan Mayer’s article describing his research into web usage tracking is an excellent read.

Hacked!

If you’ve ever had your email hacked, you can sympathize with this great article from the Atlantic.

News and @cyberlaw Links is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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This week’s @cyberlaw links are interesting to me for many reasons:

Heading Off Privacy Problems—Before They Arise

I thought this article by Julia Angwin was a good look at how some companies are undertaking “privacy-impact assessments” before undertaking new initiatives.  There’s nothing like heading off problems at the pass, and it is good to add privacy considerations to your normal checklist of items to consider before things go out the door.

Is Printing a Gun the Same as Buying One?

John Bigg’s article was very interesting to me because 3-d printing is becoming more prevalent. The article looks at the problems that arise when an item that would normally require a permit to purchase (the lower receiver for an AR-15 rifle) can be printed at home on the device you made. 3-d printers like Makerbot’s raise concerns, as John points out:

“I find it fascinating that we’re even asking these questions at this point. The fact that we are now able to manufacture usable weapon parts is an important step in the evolution of fabrication and manufacture and, if I were a weapons giant, I’d start rethinking my sales strategies. When a company of rebels can print their own AK-47s (a concept that is still a ways off), whose fault is it? The person who made the plans? The fabricator? The company whose rifles they copied?”

Stay tuned, this debate will have far reaching implications in years to come.

Typosquatting Continues to Pose Dangers to Enterprises, Consumers

Mary Roach’s article did a good job pointing out the concern with “doppelganger” websites – which are like a typical typosquatting domain, but instead of being a misspelling it’s merely missing an important dot, like “mailyahoo.com” instead of “mail.yahoo.com.”  This is one case where proactive defensive registrations can be quite helpful, which Mary recommends along with other good advice.

US Net Neutrality Rules Finalized, In Effect November 20

I’ve been following the Net Neutrality debate for years, and now the FCC’s still-controversial final “open-internet” rules [PDF] will be in effect on November 20, 2011. Now, the legal challenges can begin.

Copyright Basics webinar and @cyberlaw Links is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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HP Touchpad’s Fate

Jonathan Ezor’s review of the HP Touchpad I linked to last week became more timely after HP’s announcement that it was discontinuing the platform. It looks like WebOS may live on in some form, but the TouchPad itself is being phased out. Sad, really, as among Jonathan’s conclusions was the following nugget:

“With its ease of setup and support, true multitasking, Bluetooth keyboard compatibility, Flash-enabled browser, and Synergy, the HP TouchPad represents a solid choice for law firms and legal departments that want to add tablets to their technology portfolios.”

Too bad. I used Palms before they were even called Palms (I had a Pilot 1000 back in the day), and was quietly rooting for HP to do well after it acquired Palm.

Fake Apple Stores in China

On Ron Coleman’s Likelihood of Confusion blog, guest author Paul Jones offered his insight into the fake Apple Stores that were recently spotted in China. His insight isn’t that China is finding it hard to crack down on infringers, but rather the remote nature of the province and its inability to have a real store:

Kunming is the capital of Yunnan Province, in the far south of China. The province borders on Vietnam, Laos and Myanmar. It is thus far inland and is not one of the richer coastal provinces where foreign retailers first open their stores. But Kunming Prefecture has about 6 ½ million people. In other words there is demand there but no supply.

The entire article is well worth a read.

The Challenge of Producing Secure Devices

This article in Security Week was interesting for its insight into the world of developers. The pressure on developers to ship devices is so strong that they may have to ship devices with security flaws in order to meet deadlines. Chris Eng of Veracode is quoted as saying:

“I don’t think that every tiny bug, every tiny security bug, has to be fixed before it goes out the door,” he said. “Ideally you fix as many as you can but there’s always going to be some date where you have to ship stuff and you have to prioritize…but you also shouldn’t forget about them.”

This is relevant as many security issues today come from these vulnerabilities which may never be completely patched. There will always be someone who hasn’t applied the recommended security patches, etc., and thus perpetuate the problem caused by the hardware being released this way.

Copyright Termination

I liked this article by Larry Rohter on the upcoming battle over recording artists who can now file termination notices for their master recordings dating from 1978. The recording studios say no deal, however, claiming that the master recordings are works made for hire and thus not eligible for termination. As the article notes,

“Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.”

Artists already filing notices include Bob Dylan, Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels.

This Week’s @cyberlaw Links is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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Most wireless routers come out of the box with the default setting of being wide open, i.e. with no security, so anyone can use the connection who is within range of it. Many security experts recommend that manufacturers change these defaults, but that is the situation currently.

Many security experts recommend WPA2 level encryption if your device supports it. The older type, WEP, can be cracked in less than a minute with commonly available tools, so it is not recommended. It still would be better than no encryption if that is all your device supports.

A good way to find out how to secure your own wireless network is to search Google with the terms “how to secure wireless network” along with the manufacturer’s name or model number of the device. Some general advice can be found in this WikiHow article, although I do disagree with its recommendation for MAC address filtering. I’d also recommend listening to the Security Now podcasts relating to encryption, including Episode 13, at http://www.grc.com/securitynow.htm. The transcript can be found here – http://www.grc.com/sn/sn-013.htm. It’s an oldie (the show now has over 300 episodes), but that old episode is still worth listening to.

Of course, there are arguments for open wireless networks, but that should be a choice, not a default, in my humble opinion.

Securing Your Wireless Network is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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The bare minimum the judge could award for violation of the DMCA’s trafficking provision, §1201(a)(2), was $200 per infringement, and the plaintiffs were able to prove that there were 1,074,093 infringements. Accordingly, the court awarded $214,898,600. Further, the plaintiff can seek its attorneys fees as well.

For more on the case, and to download a copy of the decision, visit Satscams.com.

Court awards $214 Million for DMCA Circumvention is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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In the speech, entitled “Code is Law: Does Anyone Get This Yet?“, Lessig discusses some of the problems with copyright law’s application to regulate the digital world. I can’t adequately summarize the speech; it needs to be experienced. Here is a link. Lessig makes effective use of Keynote as the presentation platform and sprinkles the speech with video clips that demonstrate the Remix culture.

I was particularly struck by his evocation of John Philip Sousa‘s concern that recorded music would stifle culture. Sousa was worried that the youth would no longer gather and sing the old songs, or the songs of the day. Lessig proposes that Sousa would approve of the Remix culture as a modern day example of what he wanted to preserve.

At the end of the speech, Lessig tied these concerns about copyright law and internet regulation into a call to action to support the grassroots organization he helped start, Rootstrikers. Lessig proposes that many of the problems with current copyright law come from issues with how our politicians are funded. I personally doubt this by itself will bring the desired change, but it can’t hurt.

The rest of Techshow was also remarkable. I enjoyed the Macintosh and e-discovery sessions. I also learned some good workflows for integrating my new iPad into my practice. All in all, it was another remarkable conference. I am looking forward to Techshow 2012, which will be from March 29-31. Perhaps I will see you there.

Reactions to Lessig’s Keynote Speech at ABA Techshow 2011 is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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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.”

Cybersquatting
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.”

Wiretapping
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.”

Amen!

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.

Copyright
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.”

Trademarks
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.”

Macintosh
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).

Miscellanea
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.

Blawg Review #295 is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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For those seeking more information, the EFF has a great page of subpoena defense resources available here.

“John Doe” Filesharing Lawsuits is a post from: Cyberlaw Central

©2012 Cyberlaw Central.

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