The Internet Law Blog

4.26.2003



The Court Misses the Mark With Grokster Ruling. A federal judge ruled yesterday that companies providing peer-to-peer (P2P) file sharing software cannot be held liable for copyright infringement by users of the software. The ruling is a surprising victory for the makers of the Morpheus and Grokster software products. In an almost complete reversal of previous cases, federal court Judge Stephen Wilson ruled that Streamcast (parent of the Morpheus software) and Grokster were not liable for copyright infringements that took place using their software. "Defendants distribute and support software, the users of which can and do choose to employ it for both lawful and unlawful ends," Wilson wrote in his opinion, released Friday. "Grokster and StreamCast are not significantly different from companies that sell home video recorders or copy machines, both of which can be and are used to infringe copyrights."

Wilson ruled that it didn't matter that the companies were aware generally of copyright infringement happening using their software, Wilson added--they would have to know of specific instances of infringement and be able to do something about it, to be liable for those users' actions - and that's were he goes awry. By claiming that Grokster and Streamcast knew of no specific instances of infringement, he fails to look behind the curtain. If Grokster and Streamcast didn't know of any specific instances of infringement, it's because they refused to look. The Judge even mentions in the opinion that Streamcast and Grokster called themselves "the next Napster," that numerous internal documents revel that their users were infringing copyrights and that the Plaintiffs sent Grokster and Streamcast "thousands of notices regarding alleged infringement."

Under Copyright Law, Grokster and Streamcast are liable for contributory copyright infringement if they knew, or have reason to know, that copyrighted materials were being transferred without permission and they failed to act to prevent the distribution of the copyrighted material. Everyone, and I mean everyone (with the possible exception of Judge Wilson) knows that a phenomenal number of copyrighted files shared every hour through Grokster and Streamcast . There is no way that Grokster and Streamcast couldn't have known. I'm sure we'll see what the Ninth Circuit has to say. And the MPAA and the RIAA have a track record of getting their way in Congress, so we will also keep an eye out for new legislation.



Creative Commons. You'll note by reading below that the expressions in this blog are protected under certain aspects of copyright law. Creative Commons provides an easy to read summary of those protections. It's a nice service. They've received some press lately indicating that they have set up a new process that will let authors shorten copyright term in their works to 14 or 28 years (as opposed to life plus 70 years). It is called "Founders' Copyright." By subjecting their works to a shorter copyright term, authors and artists are maintaining rights in their works during the potentially lucrative early years. After that, the works fall into the public domain and become accessible to the masses. This is a GREAT idea and Creative Commons should be commended for implementing it.


4.25.2003


Google Rocks, but Not Froogle. I'm continually impressed by Google. Not just with the way that it steadfastly avoids paid placements but by the quality of its results. And its computing power is impressive. It has 10,000 servers scanning 3 billion Web pages, handles about 200 million search queries a day, about half from outside the U.S., and it can fetch search results in some 90 languages. But I'm not impressed with its new shopping searcher, Froogle. This beta service, released late week, uses Google's spider technology to identify sites that sell products, then pulls data from those sites and returns it as search results. The results seem sloppy and not very useful. Google's a success, but they should stick to what they know.


4.24.2003



Good Book: When China Ruled the Seas. I just finished this book. While the rest of the world was still dragging itself out of the Dark Ages, China had a thriving sea trade with India and Africa, and maybe even with places as far off as South America and Australia, a feat that wouldn't be matched for hundreds of years. This book sets the scene for the building of a massive trading fleet by the eunuch Admiral Zheng He. At least one type of ship was 400 feet long (by comparison, Columbus's ships were under 100 - about 50 times the capacity). Finally, in the mid-1400s, an Imperial Decree - forbidding sea voyages, considering them unproductive, uneconomic and, more importantly, un-Confucian - effectively shut the door on Chinese expansion. Check it out.


Gadget of the Week: Banryu. It eats less and sheds less than Fido. Sanyo's new Banryu guard-robot is designed to prowl around the house keeping an eye out for intruders. According to Gizmodo's correspondent, "one of the cool things with the Banryu is that you can call it from your cellphone and remotely view things it sees with its camera and control how it moves around your apartment."


CHECK THIS OUT: Useful Advice for Protecting Your Intellectual Property A great article in CSO (Chief Security Officer) Magazine covers the real life issues in protecting a company's IP on an every day, in the trenches, basis. The article contains excellent examples of what companies like Sony and W. L. Gore do to protect intellectual property through technical, administrative and policy approaches. It all starts with thinking of IP "as the lifeblood of an organization."


FTC Steps Up Its Efforts Against Spammers. The U.S. Federal Trade Commission (FTC) for the first time has asked a judge to block a spam operation that allegedly uses deceptive subject lines to drive customers to an adult Web site. The FTC action against Brian D. Westby, filed yesterday, was the first time the agency has targeted an alleged spammer for deceptive subject lines. According to court documents, the Westby operation generated 46,000 complains to the FTC in the past nine months. The FTC complaint against Westby is interesting. The charge related to deceptive subject lines is an unquestionably a "deceptive" practice under the FTC Act. Interestingly, the FTC also charges that spoofing -- the use of false "reply-to" addresses -- is an unfair practice. According to the FTC, an act or practice is "unfair" under the FTC Act if "1) it causes, or is likely to cause, injury to consumers that is substantial; 2) the harm is not outweighed by countervailing benefits to consumers or competition; and 3) the harm is not reasonably avoidable." Citing 45 U.S.C. sec. 45(n). Another interesting fact is that the complaint charges that Westby profits to the tune of $884,000 in two months from the spam by directing consumers to one of his Web sites, and the Web sites invite consumers to pay a fee to join a third party adult verification service. $884k in two months!



4.23.2003


Is Monster Making A Mistake? Starting on Thursday, Monster.com will begin deleting certain references on users' resumes to nations not in good diplomatic standing with the United States. The job site says it wants to comply with government regulations by removing references to Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria. The move affects less than one percent of Monster's users, but there is little doubt that the tactic is discriminatory. UPDATE: On April 25th, Monster saw the light, at least in part. It now will permit its customers to describe where they went to school--using the Web site's pull-down menus--even if it was in one of the seven sanctioned nations. But its users will continue to be prohibited from selecting a sanctioned country as a place they'd like to work. The American-Arab Anti-Discrimination Committee in Washington said it had contacted the Treasury Department's Office of Foreign Assets Control (OFAC) and learned that Monster was not required to alter resumes at all.




Not Surprisingly, Companies Are Increasingly Using Patents and Copyright Laws to Fight Competition. Attorneys at the O'Reilly Emerging Technology Conference told developers today that they face a host of legal land mines that they need to consider when developing emerging technology. In a message that seems painfully obvious, and not just to an intellectual property lawyer, the attorneys said companies are increasingly wielding patent and copyright laws such as the Digital Millennium Copyright Act (DMCA) to thwart competitors and maintain their market share. As a result, we're heading toward a world where companies increasingly need to consider the legal ramifications of their products.


If You Don't Take the Time to Read the Entire Privacy Policy, You May Be Surprised At What It Really Says. Officials at Junkbusters Corp. and the Electronic Privacy Information Center ("EPIC") held a joint news conference this morning in which they discussed their decisions to file separate complaints with the Federal Trade Commission against eBay Inc. and Amazon.com, Inc. because of privacy concerns. In the new conference, Junkbusters President Jason Catlett said he has problems with eBay's "two-tiered" privacy policy, which he called deceptive. "The short, cheery version which is presented to the visitor is not representative of the longer more detailed version," he said. The FTC has been more aggressive recently in enforcing privacy complaints and it would certainly frown on any misrepresentation by the two companies.


Free Report from McKinsey Quarterly on "Making Sense of Broadband." McKinsey Quarterly has made a premium report available for free (although registration is required) on the state of the broadband industry. With over 100 million subscribers across Asia, Europe, and the Americas, it's worth keeping up with the state of this increasingly pervasive technology.


Suing Napster's Investors; Making a Case for Contributory Copyright Infringement.
Two major record labels filed suit yesterday against venture capital firm Hummer Winblad Venture Partners for its investment in Napster, alleging that it contributed to rampant music theft through the former file-swapping network. The 23-page complaint charges that the Napster system, as conceived and implemented, "provided a safe haven for the rampant piracy of copyrighted works on an epic and unprecedented scale" and that "Hummer Winblad knowingly facilitated infringement of plaintiff's copyrights for its direct financial benefit." Under U.S. Copyright Law, contributory copyright infringement requires that the entity know, or should have known, that they were inducing, causing or materially contributing to the commission of a direct infringement. It's hard to imagine that Hummer Winblad didn't know that it was contributing to the commission of direct infringement when millions of files each month were transferred through Napster.


4.22.2003


Preliminary Reviews on Firebird Browser Are Impressive. Firebird, Mozilla.org's next-generation browser, is smaller, faster, and more reliable than the Mozilla Navigator, the current underpinning of all Netscape 6.0 and 7.0 releases. Although Firebird is still in early development, it has already kindled a cult following, and not just among Linux and open-source aficionados. It can be downloaded in Windows, Linux, and OS/2 variants. Like many other popular browsers (except Internet Explorer), it employs a "tabbed browser" user interface, which means it provides multiple browser windows within a single instance of the browser. There were lots of complaints with Navigator, and it looks like Mozilla has responded impressively with Firebird.


An Audi for the Geek in All of Us. The 2004 Audi A8 L looks like a typical yuppie-mobile, but it boasts computer gadgetry, smart sensors and video displays that will dazzle even the geekiest of nerds. The car, shown at the New York Auto Show, has solar panels installed on the roof that -- appropriately enough -- power the sunroof, and enable you to preset the temperature of your car before you get behind the wheel. It also has an electronic rear-window shade and the heated door locks to prevent freezing. The A8 L's air conditioning system factors in the direction of the sun, lowering the temperature a few degrees if you're driving into glare. It's a nice set of wheels, but it will set you back about $68k.


Is Amazon's Web Site Really A Violation of COPPA? The Washington Post reports that several privacy and consumer activist groups say the online retail giant lets children post online product reviews, which often include their names, e-mail addresses and other personal data. There seems to be a disagreement over whether Amazon's site is intended for children. In any case, this doesn't seem like it is the kind of activity that the Childrens' Online Privacy Protection Act was intended to ban.


Gadgets Galore!! For anyone that wants to see a great gadget blog dedicated to everything related to gadgets, gizmos, and cutting-edge consumer electronics, checkout Gizmodo.com. If you are a gadget freak it's a must have bookmark. For example, checkout the unusual keyboards and mice over at ExtremeTech - a vertical keyboard from SafeType, where the two halves of the keyboard are set perpendicular rather than parallel.


Outing Spammers - An alternative to filing suit
The Washington Post reports on another way to fight spam: publicizing the names, addresses and phone numbers of spammers. One targeted spammer is suing the public-spirited person who "outed" him. This may be an enticing way to intimidate spammers but we need to be careful. It could just as easily be used to harass people with viewpoints opposed to the major media.


Students Safely Surf to Avoid SARS. After the deadly SARS outbreak, Hong Kong schools were ordered shut last month. But technologies provided by Bay Area firms have kept many classes in session. From the comfort of their home computers, students can see their teachers live via a Web cam image on the screen. If the students have a Web cam themselves, they can also be seen by the teacher and other students. Students may also type in questions or comments, as they would during an online chat, and view materials hand-written or posted by the teacher in the classroom on a white board.


Madonna Plants P2P Decoys. Madonna has reportedly uploaded "decoy" files to peer-to-peer networks, in order to discourage piracy. Users who believe that they are downloading Madonna's new album receive instead a recorded admonition from Madonna herself advising the user to respect the copyright in her work (not precisely in those words). Those who download tracks are greeted by the voice of Madonna asking, "What the (expletive) do you think you're doing?" And, of course, there is a backlash against Madonna. For example, here's a thread filled with threats never to buy her records again. Also, I hear her website has been hacked.


4.21.2003


This is the first of many posts to the iLaw Blog. Contrary to what the name may suggest, the discussion will not be entirely devoted to legal topics. I'll add stories about the Internet, new gadgets, new artists and other stories of interest to those of you with an interest in the Internet. Enjoy the Blog!!!


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