ACSBlog: The Blog of the American Constitution Society

A federal judge in Alexandria ruled this month that a commercial plagiarism-detection tool called Turnitin does not violate the copyright of students who are required to submit their papers through the service. Four high school students had sued iParadigms, which operates Turnitin, arguing that the company included their papers in the system without their permission.

The judge ruled that although the company stores digital copies of their essays in a database, the archiving is fair use of the papers and provides "a substantial public benefit.” The decision has implications for other digital archiving services, such as Google Library, which scans and indexes books online.

Two State Department contractors were fired and a third was suspended for improperly accessing Senator Barack Obama's passport file, the Washington Post reported. Senator John McCain and Senator Hillary Clinton's files were also improperly accessed, the New York Times reported. Although the earliest of the three incidents occurred on January 9, 2008, the State Department did not notify Senator Obama regarding the alleged breaches and possible violation of the Privacy Act until March 21, 2008. Congressman Henry Waxman, who chairs the committee of jurisdiction over the matter, is calling for the State Department to identify the contractors involved in the data breach.

Americans traveling internationally have been subject to electronic searches that have resulted in the government's seizure and copying of information from their laptops, cell phones, and BlackBerrys without any suspicion of a crime having been committed, the Washington Post reported. Two San Francisco-based civil liberties groups are filing suit against the government to force it to disclose its policy on border searches, including the "boundaries for asking travelers about their political views, religious practices and other activities potentially protected by the First Amendment."

The Association of Corporate Travel Executives filed a Freedom of Information Act request last year in order to get information from the government regarding what happens to data the government has collected. Susan Gurley, executive director of ACTE, asked, “Is it destroyed right then and there if the person is in fact just a regular business traveler?”

Several corporations are changing their policies to make sure that those traveling do not do so with confidential information on the lap top or even so far as to only travel with “blank laptops” where the hard drive is empty. 

In this order, the Supreme Court of Nevada overturned Nevada Senior District Court Judge Charles Thompson’s temporary restraining order that would have prohibited NBC Universal, Inc. from proceeding with its planned presidential debate on MSNBC TV without including presidential aspirant Dennis Kucinich.

Is a laptop more like a container or a confidant? The New York Times' Adam Liptak examines several court decisions about the standard to apply for searching data on laptops being brought into this country, regardless of whether there is "reasonable suspicion" of wrongdoing.

The U.S. Court of Appeals for the Fourth Circuit held that a computer is a container, and information on it is susceptible to search just like its hard-copy equivalent. A District Court judge in Los Angeles held that computers serve as "an extension of our own memory," and consequently suppressed evidence obtained from a laptop carried overseas.

In light of encryption programs that protect computer data, even if the government has the right to read computer data, can it force the laptop's owner to reveal the password? A Vermont judge answered that it depends on whether a password is analogous to a key to a safe or forcing someone to reveal its combination. 

On Monday, the U.S. Court of Appeals for the Eighth Circuit denied a motion to rehear a lawsuit by the Major League Baseball Players Association against a fantasy baseball company that uses players' statistics and names without paying a licensing fee, the St. Louis Dispatch reported. The three-judge panel had previously found that the company's use of the statistics is not the same as "faking an endorsement from a player and not paying him."

News reports emerged this week that some judges are issuing sealed orders in response to secret government requests that ask cell phone providers to provide real-time tracking information about their customers absent a showing of probable cause that a crime is taking place or that the inquiry will reveal evidence of a crime.

Even when not in use, cell phones can be tracked, and the federally mandated "enhanced 911" location tracking system can locate a phone to within 30 feet. Privacy advocates caution tracking data will be even easier to obtain if the FCC adopts a DOJ proposal to make yet more detailed GPS data automatically available.

Judges are issuing sealed orders in response to secret government requests that ask cell phone providers to provide real-time tracking data on customers absent a showing of probable cause and in violation of internal Department of Justice Guidelines, the Washington Post reported.

"Most people don't realize it, but they're carrying a tracking device in their pocket," said Kevin Bankston of the privacy advocacy group Electronic Frontier Foundation. "Cellphones can reveal very precise information about your location, and yet legal protections are very much up in the air."

"Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request," Shane Harris reported in the National Journal.  "The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order."

According to the article, the purpose behind the pre-9/11 request  was to "watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information system." Although Qwest was unwilling to go along with the request, Harris reported that "some companies were willing to offer data and to assist the government 'as necessary' on a voluntary basis, without a court order."

Internet watchdogs denounced Comcast for "censorship" and called for "net neutrality" legislation after the Associated Press' Peter Svensson reported that tests revealed that Comcast was blocking some forms of internet file-sharing traffic.

Out of three attempts to transfer the King James Bible between two computers in Philadelphia and San Francisco, two attempts were blocked, and the third was delayed by ten minutes. The AP also found that "Comcast's computers masqueraded as those of its users to interrupt file-sharing connections," effectively shutting down connections.

Comcast later admitted "delaying" some internet traffic, saying that if the computers keep trying, Comcast would eventually let some of the traffic through. Comcast also may be blocking e-mails with large attachments sent through Lotus Notes.

White House press secretary Dana Perino said that because Intelligence Committee Chairman Jay Rockefeller (D-VA) and ranking member Senator Kit Bond (R-MO) "showed a willingness" to amend FISA legislation to include immunity for telecommunications companies that provided consumer data to the National Security Agency, the Bush administration was "willing to show them some of the documents that they asked to see." The Senate Intelligence Committee approved amendments to FISA that included telecom immunity.

The Senate Judiciary Committee will also consider the legislation; Chairman Patrick Leahy (D-VT) and ranking member Senator Arlen Specter (R-PA) wrote to President Bush conditioning "the production of information on prior Senate agreement to provide retroactivity immunity" is "unacceptable and would turn the legislative process upside down."

This past Tuesday, the U.S. Court of Appeals for the Third Circuit held that a Federal Communications Commission decision deregulating the market for high-speed internet access was entitled to deference. The case, Time Warner Telecom Inc. v. FCC, concerned a September 2005 rule promulgated by the FCC that eliminated longstanding requirements for internet service providers to grant competitors nondiscriminatory access to their wirelines.

Writing for a unanimous panel that included visiting Judge Alan D. Lourie of the Federal Circuit, U.S. Circuit Judge Julio M. Fuentes noted a 2005 Supreme Court ruling upholding the FCC's classification of cable companies as providing an "information" rather than a "telecommunications" service, and concluded that "the record adequately supports the FCC's conclusion that, from the perspective of the end-user, wireline broadband service and cable modem service are functionally similar and, therefore, that they should be subject to the same regulatory classification."

Independent service providers unsuccessfully argued that the agency's rule permits telephone companies to deny competitors access to their wirelines, and that such a result would lead to decreased competition and consumer choice.

Kevin Martin, the Chair of the Federal Communications Commission (FCC), is circulating a plan to relax media ownership rules and thereby allow a media company to own both a newspaper and a television or station in the same city and allow a company to increase the number of radio or television stations owned by one company in the same city, according to a New York Times article.

The review of media ownership rules should be completed by mid-December, according to Broadcasting & Cable; the FCC has held a number of hearings on making changes to media ownership rules.

Some lawmakers have expressed concerns about news outlets being controlled by too few companies and insufficient localism (coverage of local events); a member of the Commission also expressed concern about too few women and minorities owning media companies.

The last attempt to reduce media ownership regulations were overturned by the U.S. Court of Appeals for the Third Circuit, which held in Prometheus v. FCC that the FCC "did not provide reasoned analysis to support the specific cross-media limits it chose."

Verizon provided data to federal authorities without a court order 720 times from January 2005 to September 2007 in response to requests the government designated as an emergency, the Washington Post reports. During that same period of time, Verizon provided information a total of 94,000 times. The records included Internet protocol addresses and phone data.

The FBI sought information identified the person making the call, the customer receiving the call, and the "two-generation community of interest" -- those people the customer in turn called.

Both Verizon and AT&T said "it was not their role to second-guess the legitimacy of emergency government requests," even if the government did not provide the supporting documentation.

Letters from Verizon, AT&T, and Qwest regarding the turning over of customer data was provided in a letter in response to a request from the House Energy and Commerce Committee. The Electronic Frontier Foundation also commented upon the transmission of customer data.

Wired magazine explains that newly obtained documents makes FBI eavesdropping as easy as point and click and may open security holes in the telecommunications network.

The surveillance system, called DCSNet, for Digital Collection System Network, connects FBI wiretapping rooms to switches controlled by traditional land-line operators, internet-telephony providers and cellular companies. It is far more intricately woven into the nation's telecom infrastructure than observers suspected. . . .

Together, the [three] surveillance systems [collectively known as DCSNet] let FBI agents play back recordings even as they are being captured (like TiVo), create master wiretap files, send digital recordings to translators, track the rough location of targets in real time using cell-tower information, and even stream intercepts outward to mobile surveillance vans. . . .

In the 1990s, the Justice Department began complaining to Congress that digital technology, cellular phones and features like call forwarding would make it difficult for investigators to continue to conduct wiretaps. Congress responded by passing the Communications Assistance for Law Enforcement Act, or CALEA, in 1994, mandating backdoors in U.S. telephone switches.

FBI wiretapping rooms in field offices and undercover locations around the country are connected through a private, encrypted backbone that is separated from the internet. Sprint runs it on the government's behalf. . . .To security experts, though, the biggest concern over DCSNet isn't the cost: It's the possibility that push-button wiretapping opens new security holes in the telecommunications network.

The Financial Times reports that the U.S. has launched "myspace for spies." Although the name "SpySpace" may be more apt,  the program, officially known as "A-space" will be opened to the entire intelligence community in December.

The move is the latest part of an ongoing effort to transform the analytical business following the failure to detect the 9/11 terrorist attacks or find weapons of mass destruction in Iraq.

Thomas Fingar, the deputy director of national intelligence for analysis, believes the common workspace – a kind of “MySpace for analysts” – will generate better analysis by breaking down firewalls across the traditionally stove-piped intelligence community. He says the technology can also help process increasing amounts of information where the number of analysts is limited.

The intelligence community already has its own versions of Wikipedia and del.icio.us.

The DNI has also built an internal collaborative site called Intellipedia, modeled on Wikipedia, the online encyclopedia. It has also created a version of http://del.icio.us, the social book-marking site, for members of the intelligence community. Another tool that has been developed is a national intelligence library, which can be accessed from A-Space.

The ultimate goal is to make information-sharing easier without compromising security.

Mr Wertheimer says the new infrastructures should help break down some of the physical communications problems in the intelligence community.

“I am unable to send email, and even make secure phone calls, to a good portion of the Intel community from my desktop because of firewalls,” he says.

Whether the sharing of information poses safety concerns for the spies or privacy and due process concerns for potential domestic targets has yet to be evaluated.

H/T BoingBoing

Declan McCullagh of CNET News reports "Ohio's method of conducting elections with electronic voting machines appears to have created a true privacy nightmare for state residents: revealing who voted for which candidates."

Two Ohio activists have discovered that e-voting machines made by Election Systems and Software and used across the country produce time-stamped paper trails that permit the reconstruction of an election's results--including allowing voter names to be matched to their actual votes.

Making a secret ballot less secret, of course, could permit vote selling and allow interest groups or family members to exert undue pressure on Ohio residents to vote a certain way. It's an especially pointed concern in Ohio, a traditional swing state in presidential elections that awarded George Bush a narrow victory over John Kerry three years ago.

Ohio law permits anyone to walk into a county election office and obtain two crucial documents: a list of voters in the order they voted, and a time-stamped list of the actual votes. "We simply take the two pieces of paper together, merge them, and then we have which voter voted and in which way," said James Moyer, a longtime privacy activist and poll worker who lives in Columbus, Ohio. . . .

ES&S machines are used in about 38 states, according to the Election Reform Information Project, created by the Pew Center on the States. Of those states, Arkansas, Iowa, North Carolina, Ohio, and West Virginia are among those using ES&S iVotronic machines with paper audit trails.

Update: Democrats.org  has an article linking to Calitics.com that discusses how some California electronic voting machines may not have been officially certified or may have had fake certifications.

James Risen and Eric Lichtblau reported in Saturday's New York Times that revisions to FISA may have had an even broader effect that originally believed. The revisions permit "certain types of physical searches on American soil and the collection of Americans' business records" without court approval.

Several legal experts said that by redefining the meaning of “electronic surveillance,” the new law narrows the types of communications covered in the Foreign Intelligence Surveillance Act, known as FISA, by indirectly giving the government the power to use intelligence collection methods far beyond wiretapping that previously required court approval if conducted inside the United States.

These new powers include the collection of business records, physical searches and so-called “trap and trace” operations, analyzing specific calling patterns.

For instance, the legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said. . . .

Some believe the legislation allows extra-judicial surveillance upon the Administration's assertion that the spying concerns monitoring someone overseas.

Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions. Whether intentional or not, the end result — according to top Democratic aides and other experts on national security law — is that the legislation may grant the government the right to collect a range of information on American citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas. . . .

The Administration will not publicly commit to limit how it conducts surveillance.

Vanee Vines, a spokeswoman for the office of the director of national intelligence, said the concerns raised by Congressional officials about the wide scope of the new legislation were “speculative.” But she declined to discuss specific aspects of how the legislation would be enacted. The legislation gives the director of national intelligence, Mike McConnell, and Attorney General Alberto R. Gonzales broad discretion in enacting the new procedures and approving the way surveillance is conducted. . . .

At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

The Administration argues it has the authority to conduct surveillance beyond that authorized by Congress.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president’s Article II powers trump any ability by Congress to regulate the collection of foreign intelligence.”

The FISA legislation is up for renewal in six months.

Sunday's New York Times reported on a phenomenon discussed on this blog last Thursday:

Since Wired News first wrote about WikiScanner last week, Internet users have spotted plenty of interesting changes to Wikipedia by people at nonprofit groups and government entities like the Central Intelligence Agency. Many of the most obviously self-interested edits have come from corporate networks. . . .

Internet experts, for the most part, have welcomed WikiScanner. “I’m very glad that this has been exposed,” said Susan P. Crawford, a visiting professor at the University of Michigan Law School. “Wikipedia is a reliable first stop for getting information about a huge variety of things, and it shouldn’t be manipulated as a public relations arm of major companies. . . .”

Examples of edits to Wikipedia as reported by Wired include:

FBI removes aerial images of Guantanamo.

Wikipedia's entry on President Bush "IS TAINTED BY POLITICAL BIAS THAT HAS NO PLACE IN WIKIPEDIA," shouts an unbiased critic ... from the Justice Department in Washington D.C.

The Defense Intelligence Agency thinks it's their job to classify writers. In this case, some spook wants us to believe that Maureen Dowd is a man hater.

Diebold removing all criticism and contreversy [sic] about them.

Brian Bergstein of the Associated Press reports on an online tool that traces the sources of Wikipedia edits.

The free Scanner grabs the Internet Protocol addresses used in anonymous Wikipedia edits in the past five years. By combining that with public information about which IP addresses belong to whom, the Scanner reveals Wikipedia changes made from computers assigned to a bevy of organizations. . . .

Many examples are being tallied at http://wired.reddit.com/wikidgame — a page run by Wired News, which reported earlier on WikiScanner.

Some examples listed on the Wired News web page include*:

FBI removes aerial images of Guantanamo.

Wikipedia's entry on President Bush "IS TAINTED BY POLITICAL BIAS THAT HAS NO PLACE IN WIKIPEDIA," shouts an unbiased critic ... from the Justice Department in Washington D.C.

The Defense Intelligence Agency thinks it's their job to classify writers. In this case, some spook wants us to believe that Maureen Dowd is a man hater.

Diebold removing all criticism and contreversy [sic] about them

The US Department of Energy thinks we made the right decision in using military force to search for WMDs in Iraq because if Iraq had them, then it would have been the right decision to use military force to find them.

Over two years after the invasion of Iraq, someone from the Republican party edited the entry on the Baath Party from "In June 2003, the US-led 2003 occupation of Iraq occupying forces in Iraq banned the Ba'th party" to "In June 2003, the US-led 2003 occupation of Iraq liberating forces in Iraq banned the Ba'th party."

Focus on the Family Edits: here they pretty much erase all reference, biased though it might be, to their being part of the christian right.

Somebody at the National Rifle Association wants us to think that Iraq was involved in the planning and/or execution of 9/11. They've got proof!

* Note: these are user-submitted examples. There is no indication that the changes are the policy of any of the entities listed above or that the user analysis is correct.

For an overview of internet privacy, see a slightly outdated 2006 CRS Report.

Phone companies keep records from cell phone transmissions for months or longer-- and those records can be used to trace where a caller was located. According to a recent New York Timesstory by Anemona Hartocollis, these records are being used to verify the location of criminal defendants: resulting in convictions and acquittals.

Two Congressional Research Service Reports examine consumer privacy issues.  A May 2006 report from CRS casts doubt on the reliability of telephone record privacy protections against non-governmental actors.

Phone companies are believed to have strict rules preventing and guarding against the employee sale of telephone records and the unauthorized acquisition of customer information. On the other hand, private investigators, often routine users of telephone customer record data, state that information security by carriers to protect customer records is practically nonexistent and is routinely defeated. Federal Trade Commission (FTC) has indicated that data-theft investigations have shown that “finding someone on the inside to bribe is not that difficult.”

A January 2007 Report from CRS examines the statutory restrictions regarding accessibility of telephone records to government actors.

Writing in The Washington Post this morning, Stanford law professor (and creator of the Creative Commons alternative licensing regime) Larry Lessig comments on recently announced plans by Lucasfilm to make the Star Wars movie franchise available for "remixing" by fans and independent artists.  Identifying the business rationale for remixing and noting "[a] dark force" within the prevailing intellectual property regime limiting its realization, he predicts what he frames as an inevitable future paradigm of greater consumer control and participation over digital content.

ACS' University of Missouri student chapter posted useful summary of issues surrounding the so-called "Mickey Mouse" laws at its blog:

Save for stylish mustaches, Walt Disney and Marcel Proust probably had very little in common. That is, until the enactment of the Copyright Term Extension Act of 1998, a.k.a. the "Mickey Mouse Protection Act." Before the act, copyright of a work would last for the life of the author plus 50 years, or 75 years for a work by a corporation. The act, authored by the late Congressman Sonny Bono, extended these terms to life of the author plus 70 years and 95 years respectively. The Walt Disney Corporation lobbied heavily for the extension in order to prevent early Mickey Mouse cartoons such as "Steamboat Willie" from entering the public domain.

In practice, the Extension Act had some odd effects. In the late 90's, Penguin books commisioned a new English translation of Proust's seven-volume In Search of Lost Time. The new translations of the volumes are considered far superior to the previous 1920's translation. (In fact, the original translation called Proust's masterpiece "Remembrance of Things Past." Even the new translated title was subtly yet materially different in its meaning.) Unfortunately, getting hold of all seven of the new translated volumes can be a little difficult for American readers:

Bono's legislation effectively froze the date at which works go into the public domain at 1923, instead of marching forward twelve months with each passing year. In Search of Lost Time was caught in this web, because only the first four volumes were published before 1923. The Prisoner, The Fugitive, and Finding Time Again are still protected under U.S. copyright law, so Viking can't publish them, even though the British paperbacks are freely imported into this country.

By Randy Enochs, Editor at Large

By now most of us have probably heard about the controversial “remake” of the 1984 Ridley Scott-directed Super Bowl commercial depicting Senator Hillary Clinton (D-NY) as Orwellian IBM and Senator Barack Obama (D-IL) as liberating Apple.  Right about now many pundits who author blogs are beginning to place big, bright banners, links and e-mail addresses on their websites to support their current choice for our next President.  The internet is an innovation parallel to television, radio and newspaper, and, in many instances, more influential and reaching.  However, the Bipartisan Reform Act of 2002 (BCRA), an important piece of legislation passed into law with a purpose of addressing issue ads, does not currently apply to the internet.  With the role the internet plays in politics via blogs and video clip websites like YouTube, many argue that BCRA should be extended. 

            The issue of applying the BCRA to the internet was at the fore back in March and September of 2005 when Senator Harry Reid (D-Nevada) introduced a bill that called for the inclusion of the internet in the BCRA and the Committee on House Administration held a hearing on the subject of regulation of political speech and activity on the Internet.  In the hearing, the Committee heard from several legislators, election law experts and bloggers on whether or not the internet should be included under the Act.  Professor Bradley Smith, a former FEC chair, wrote on this controversy:

Blogger Duncan Black (Atrios) speaks as R.E.M. advisor Bertis Downs and law professor Victoria Phillips look on

This video is from the May 2 Technology and IP Policy Day presented by ACS and the Future of Music Coalition.

One of the most heated debates surrounds the principle of network neutrality. Is this a solution in search of a problem, or do we need the government and the FCC to enforce rules that would preserve the open nature of the internet? Advocates for both positions with internet based music service providers and policymakers discussed the real world impact of net neutrality on musicians, labels and the public at large.

This panel featured:

• Duncan Black, Proprietor of the blog Eschaton
• Scott Cleland, President, Precursor LLC and Chairman, netcompetition.org
• Parul Desai, Assistant Director, Media Access Project
• Bertis Downs, Advisor R.E.M., Athens LLC
• Victoria Phillips, Assistant Director, Glushko-Samuelson Intellectual Property Clinic, Washington College of Law, American University
• Gigi Sohn, President, Public Knowledge
• Moderator, Michael Bracy, Policy Director, Future of Music Coalition

Next Wednesday, May 2 in Washington, D.C., ACS and the Future of Music Coalition, will cohost an all-day event on music downloading, net neutrality, new radio technologies and other emerging intellectual property issues.  The event will bring together key stakeholders, including musicians, advocates, policymakers, technologists, academics and bloggers, with diverse views on these issues.  In addition to keynote addresses by Congressman Mike Doyle (D-PA) and David Carson, Associate Register for Policy and International Affairs, US Copyright Office, the event will also feature the following panels:

Radio Waves

In the past 10 years, satellite and internet radio have grown from basement hobbies to legitimate platforms for the delivery of music and news. But this growth has also brought new challenges, ranging from debates about content protection, to the public performance right, to how to manage the transition to HD radio. The attention to the issues has only increased recently, with webcasters negotiating with the Copyright Royalty Board over royalty rates, and XM and Sirius proposing a merger. Representatives from satellite and internet radio will join with artist and label representatives for a discussion about the challenges for both old and new radio platforms, and solutions that would benefit both technologists and the music community.

• Joe Kennedy CEO and President, Pandora
• Eric Logan Executive Vice President, Programming, XM Satellite Radio
• Patricia Polach Associate General Counsel, AFM, Bredhoff & Kaiser, PLLC
• Brian Zisk Cofounder and Technologies Director, Future of Music Coalition

The Net Effect

Congress is considering a series of bills designed to revise the telecommunications regulatory framework. One of the most heated debates surrounds the principle of network neutrality. Is this a solution in search of a problem, or do we need the government and the FCC to enforce rules that would preserve the open nature of the internet? This panel brings together advocates for both positions with internet based music service providers and policymakers to discuss the real world impact of net neutrality on musicians, labels and the public at large.

• Duncan Black (a.k.a Atrios), Blogger and Founder of Eschaton
• Michael Bracy Policy Director, Future of Music Coalition
• Parul Desai Assistant Director, Media Access Project
• Bertis Downs Advisor R.E.M, Athens LLC
• Victoria Phillips Asst. Director, Glushko-Samuelson Intellectual Property Clinic, Washington College of Law, American University

Stocking the Celestial Jukebox

For music fans, there are more choices than ever when it comes to discovering, listening to and purchasing music. There are stores like iTunes and eMusic, subscription services like Rhapsody and Napster. There are webcast stations, satellite radio, MP3 blogs and the ubiquitous MySpace. Despite the emergence of many models, challenges remain in the space, especially related to artist compensation and licensing parity among different platforms. What would make it easier for music services to license music, for consumers to access music, and for musicians, songwriters, and others in the content community to be paid? Experts from the music, technology and legal communities will discuss Section 115 reform, orphan works and other intellectual property issues.

• Fred Cannon Senior Vice President, Government Relations, BMI
• Julie E. Cohen Professor of Law, Georgetown University
• Steve Marks Vice President and General Counsel, RIAA
• Walter McDonough General Counsel, Future of Music Coalition
• Michael Petricone Senior Vice President, Government Affairs, CEA
• Jule Sigall Senior Attorney, Microsoft Corp.

The event will take place at the Economic Policy Institute, 1333 H St. NW, Third Floor, Washington, D.C. 20005 (near the McPherson Square Metro stop).  To register, follow this link.

by Mark Pike, Editor at Large

A few weeks ago, the Speaker of the House, Rep. Nancy Pelosi posted a one-minute clip of her speech at a House committee hearing onto her YouTube account and on her blog.  The footage had originally aired on C-SPAN, and so C-SPAN requested that she remove the material immediately for abusing their copyright policy.  C-SPAN asserted ownership of the content in a manner that parallels Viacom’s recent request that YouTube expunge its users highlight clips from programs like the Daily Show.

This caused some confusion amongst lawmakers, content consumers, and content creators. Does C-SPAN have the same ownership rights of our government’s “content” that Viacom has over John Stewart’s moments of zen? Many citizens were outraged and felt that C-SPAN was overstepping their privileges. Carl Malamud, an experienced technology advocate, wrote an open letter to CEO Brian Lamb summarizing these sentiments: 

C-SPAN is a publicly-supported charity. Your only shareholders are the American public. Your donors received considerable tax relief in making donations to you. You and your staff were well paid for your excellent work. Congressional hearings are of strikingly important public value, and aggressive moves to prevent any fair use of the material is double-dipping on your part. For C-SPAN and for the American public record, the right thing to do is to release all of that material back into the public domain where it belongs.

By Pete Barile, Axinn, Veltrop & Harkrider LLP

Editor’s Note: The Supreme Court will hear oral arguments in Leegin Creative Leather Products, Inc. v. PSKS, Inc., No. 06-480, this Monday, March 26.  Mr. Barile is author of the amicus brief submitted in support of Respondents by the Consumer Federation of America.

A fundamental rule of our free-market system is at stake in Leegin v. PSKS: the rule that manufacturers may not prevent retail discounting by colluding with dealers to fix the prices at which their products are sold at retail.  The question presented is whether such minimum resale price maintenance (“RPM”) agreements should continue to be per se illegal or, rather, should be evaluated under a very lenient standard, which in antitrust parlance is called the “rule of reason.” 

When employed, RPM prevents consumers from “shopping around” for the best price because it prevents retailers from putting on sale any and all types of products, including not only large purchases, but also everyday purchases—from groceries to gasoline. Because of the per se rule against RPM, consumers have saved hundreds of billions of dollars over the years, while the retailing industry has progressed from small shops to department stores to discount warehouses to, most recently, online commerce. Abandoning the per se rule in favor of rule of reason would provide cold comfort to American consumers; for it is widely recognized that to accord RPM a rule of reason treatment would effectively make RPM legal. 

For nearly a century, since the Court decided Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911), it has been a per se illegal “restraint of trade” under Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, for manufacturers and retailers to agree to fix a minimum retail price.  During that time, the per se rule against RPM has safeguarded low consumer prices and an abundance of consumer choice, witnessing an unparalleled period of dynamic innovation in retailing by fostering competition at the retail and manufacturing levels. By preventing RPM, which is designed to discourage price cutting, the per se rule has set the stage for innovative retailers to continually enter the market, offering new and lower priced alternatives to consumers. By encouraging such entry, the per se rule has enhanced “intertype competition,” that is, competition among different kinds of retailers, such as boutiques, department stores, superstores, and online sellers—providing substantial benefits to consumers.

There is no good reason to abandon the venerable Dr. Miles rule.

A report by the General Accounting Office concludes that current patent law discourages drug companies from developing new drugs by allowing them to make excessive profits through minor changes to existing pharmaceuticals.  While pharmaceutical research and development expenses have increased by 147% since 1993, applications for approval of "new molecular entity" (NME) drugs, or drugs which differ significantly from others already on the market, have risen only 7%.  According to the report, the majority of newly developed medicines are so-called "me-too" drugs, which are substantially similar to existing drugs, are less risky than NMEs drugs to develop, and which "offer little in the way of therapeutic breakthroughs." 

Under existing patent law, these "me-too" drugs can receive new patents separate from the already existing drugs they are based on, allowing drug companies to make substantial profits without signficantly enhancing the quality of drugs available on the market.  According to the report, "the ability of drug manufacturers to easily obtain patents for minor changes to products, or to receive patent exclusivity for new uses of existing products, have reduced incentives to develop new drugs."

Commenting on the report, Senator Dick Durbin (D-IL) said that existing patent law allows drug companies to drive up their profits at the expense of patients needing innovative treatments.  "The findings in this new GAO report," said Senator Durbin, "raise serious questions about the pharmaceutical industry claims that there is a connection between new drug development and the soaring price of drugs already on the market.  Most troubling is the notion that pharmaceutical industry profits are coming at the expense of consumers in the form of higher prices and fewer new drugs."

In his own statement on the GAO report, Senator Edward Kennedy (D-MA) touted a bill he has co-sponsored with Senator Mike Enzi, which would provide grants to scientists focused on developing innovative drugs.

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An recent decision by the Fourth Circuit held that a federal anti-spamming law protects spammers by shielding them against state anti-spam laws. The federal CAN-SPAM Act, which provides remedies against some spammers, contains a provision that preempts state anti-spam laws, "except to the extent that [state law] prohibits falsity or deception in any portion of a commercial electronic mail message . . . ." In an opinion by Judge J. Harvie Wilkinson, the Fourth Circuit held that this exception does not save an Oklahoma law which prohibits spam e-mail which "[m]isrepresents any information in identifying the point of origin or the tranmission path of the electronic mail message," or which "[c]ontains false, malicious, or misleading information which purposely or negligently injures a person."

At issue in this case were eleven spam e-mails sent to the plaintiff which incorrectly stated that the plaintiff had signed up to receive the spam e-mails, and which contained a return address in its header information which the plaintiff claimed was not owned by the sender. The court held that these inaccuracies were not sufficient to allow the Oklahoma law to be applied without preemption. The court argued that the word "falsity" in the CAN-SPAM Act is ambiguous, and can be read to either encompass mere inaccuracy, or to only apply to intentional lying.

Because the court found that the inaccuracies in the spam e-mails did not amount to outright lies, it held that the spammer could not be held liable under the preempted Oklahoma law. The court also argued that Congress intended the CAN-SPAM act to provide certain protections for spammers. A national standard imposing strict liability on spammers, argued the court, would "impede 'unique opportunities for the development and growth of frictionless commerce,'" which spam provides.

(hat tip: Bashman)

Digg This!

by Martin Magnusson, Editor-at-Large

In Reno v. ACLU, all nine justices of the Supreme Court found the Communications Decency Act of 1996 to be an unconstitutional restriction on free speech. Shortly thereafter, the 1998 Child Online Protection Act, drafted in response to the Reno v. ACLU decision and referred to as "COPA," was signed into law by President Clinton. COPA mandates that websites verify (typically through the use of a credit card) the age of viewers before allowing them access to material that may be considered "harmful to children." The broad reach of this language has alarmed many civil libertarians, who contend that it could reach content as disparate as information about sexually transmitted disease and photographs of Abu Ghraib prisoners.

Not surprisingly, the Supreme Court has enjoined COPA's enforcement, sending the law to Senior U.S. District Judge Lowell Reed to determine whether new technologies impact its constitutionality. That trial recently commenced. In his opening statement to Judge Reed, American Civil Liberties Union attorney Chris Hansen asked why the Internet is different than any other medium:

The Supreme Court has agreed to hear a case which may determine whether Microsoft shielded itself from U.S. patent law by shipping patented software overseas to be replicated. Microsoft was found liable for violating AT&T's patent on computer generated speech software which it incorporated into Microsoft Windows. While this judgment may render Microsoft liable for violations which occurred in the United States, Microsoft claims it cannot be held liable under U.S. patent law for patented software it shipped overseas. This shipped software was then copied outside of the United States, and the copies were distributed to customers in other nations.

Interestingly, the Administration has submitted a brief in this case arguing that U.S. patent law does not reach into other countries in the way which AT&T asserts here. According to that brief, AT&T's "remedy lies in obtaining and enforcing foreign patents, not in attempting to extend United States patent law to overseas activities."

Florida attorney Jack Thompson recently lost a case seeking to enjoin the sale of "Bully", a video game which puts the player in the shoes of a high school ruffian. In response to his loss, Thompson delivered a letter to the judge in the case:

Dear Judge Friedman:

Now that you have consigned innumerable children to skull fractures, eye injuries from slingshots, and beatings with baseball bats, without a hearing as to the danger, let me tell you a few things, with all respect for your office and with no respect for the arbitrary way in which you handled this matter. I can handle an adverse ruling by a judge. I've had plenty of those in my lifetime, and that's fine. But the way you conducted yourself today helps explain why a great Dade County Judge, the late Rhea Pincus Grossman, could not abide you. She was not the only one . . . .

Thompson, who said of himself that "I am a Christian. I am not charged with winning these battles; I am charged with fighting them. I have done the right thing," concludes his letter with a threat to the judge:

Next time you promise a "hearing," I'll bring a parent with me whose kid is in the ground because of a kid who trained to kill him or her on a violent video game. Try mocking that person, I dare you.

The full text of the letter is available here.

Avast, me buckos! Copyright reformers were keelhauled in Sunday's Sweedish election, as voters sent their newly formed Pirate Party to Davy Jones' Locker. The Pirate Party, which ran on a platform of a 5-year limit to commercial copyright and abolition of patents, received only .62% of the vote, marooning them without any seats in parliament.

In other news, today is Talk Like A Pirate Day. Pastafarians rejoice!.

A claim seeking attorneys fees from the recording industry may chill future suits against alleged illegal music downloaders.

Since 2003, the Recording Industry Association of America (RIAA) has sued over 18,000 individuals alleging copyright violations for illegally downloading music. According to an amicus brief filed by the ACLU, the Electronic Frontier Foundation, Public Citizen and the American Association of Law Libraries, this practice has both allowed the RIAA to "bully" defendants who lack the financial resources of the recording industry and skewed the nation's understanding of copyright law:

The RIAA is not only continuing to prosecute the innocent in spite of clear evidence to the contrary but also attempting to expand the scope of its copyright protections beyond what the statutes provide. This copyright "grab" stems from the plaintiffs' erroneous theories of secondary liability in copyright law. These theories, which the RIAA knows are wrong, attempt to put parents, employers, teachers, and other internet account holders on the hook for third-party computer activities-even when the defendant has no knowledge or ability to supervise the actual alleged infringers. Because of the vast differential in resources between plaintiffs and defendants and the strict liability and statutory damages regime of copyright law, these cases often settle, sending the message that these erroneous theories are actually correct. Unless individuals like Deborah Foster can afford to take a stand and fight back, the public may eventually believe that they have fewer rights when accused of responsibility for improper file sharing by others than they do, thus inflicting irreparable harm to the purposes of copyright law. Thus, an award of attorney's fees helps defend the public's legal rights and furthers the proper administration of copyright law.

Section 505 of the Copyright Act grants a trial judge discretion to "award a reasonable attorney's fee to the prevailing party as part of the costs." While prior claims for attorney's fees in similar cases have been unsuccessful, at least one report suggests that Judge Lee West will be more sympathetic to these claims. Judge West's decision may come down as soon as this month.

The D.C. Circuit today criticized the FBI for failing to use Google in response to a Freedom of Information Act (FOIA) request, which requires government agencies to release information unless "reasonable efforts" show that the information is not available to the public.

The case involved a request for 35 year-old tapes recorded during a Lousiana mob investigation. The FBI claimed that they could refuse to release the tapes under an exception to FOIA which allows information to be withheld when it could "reasonably be expected to constitute an unwarranted invasion of personal property." According to the FBI, release of the tapes would invade the privacy of the persons taped.

As the court explained, a person's interest in their own privacy is "diminished where the individual is deceased," and thus the FBI's right to refuse disclosure of the tapes hinged upon whether or not they made reasonable efforts to determine if the people on the tape were dead.

The court found the FBI's efforts lacking:

Why, in short, doesn't the FBI just Google the two names? Surely, in the Internet age, a "reasonable alternative" for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person's death.10 Moreover, while finding a death notice for the second speaker -- the informant -- may be harder (assuming that he was not prominent), Googling also provides ready access to hundreds of websites collecting obituaries from all over the country, any one of which might resolve that speaker's status as well.

As Howard Bashman notes there's no word yet on whether the FBI has to use Wikipedia.

The Eleventh Circuit in the case of Snow v. DirecTV held that a webmaster may not exclude certain persons from his site merely by telling them their access is unauthorized.

In this case, Michael Snow was the webmaster of Stop Corporate Extortion, a "private support group website for "individuals who have been, are being, or will be sued by any Corporate entity." In order to access Snow's site, a user was required to register a username and password, and to agree to a statement affirming that the user was not associated with DirecTV, inc. He claimed that several agents of DirecTV ignored this warning and accessed his site. According to Snow, such unauthorized access violated the Stored Communications Act (SCA), which forbids accessing an electronic communication "without authorization."

The Eleventh Circuit rejected this claim. According to the court, the SCA does not apply to communications which are "readily accessible to the general public." On Snow's site, any member of the general public could access the site by merely registering with a username and password and clicking on the words "I Agree to these terms." Such an easily surmountable barrier to access is, according to the court, insufficient to make a site not "readily acessible to the general public."

While the court did not explain just what sort of security measures would invoke the SCA, it did hint that a webmaster who "screens the registrants before granting access" would have a stronger claim than one who merely asks his registrants to "self screen[ ]."

(hat tip Orin Kerr)

The "Children's Internet Protection Act" (CIPA) requires filters in most schools and libraries - for adults and minors alike. A new report from the Free Expression Policy Project at the Brennan Center for Justice explains the effects of CIPA and then analyzes nearly 100 tests and studies that demonstrate how filters operate as censorship tools. "Internet Filters: A Public Policy Report" suggests that electronic filters are an unreliable and inefficient means of preventing children from viewing material that parents find offensive, and that they also often censor political and other information.

MIT sophomore Cassi Hunt admits to being a music "pirate." But when the RIAA caught up to her (by getting her name from MIT itself) and accused her of illegally downloading 272 songs, she was suprised by the price tag: $3,750 to settle the suit, or the much higher costs of going to trial. Deep in student debt and feeling the RIAA lacked substantive evidence, Hunt tried to negotiate, and was told "in the past the RIAA has encouraged students to either drop out of college or attend community college so they can get a job and pay off their debt."

Hunt has been receiving quite a bit of coverage for her case, a fact she thinks is based on her unique willingness to document her story. She argues

"It isn't that I'm angry that I was 'caught' or that I think people should be able to get away with copyright infringement. The issue here is that the law in place to deal with music piracy was put in place by RIAA lobbyists in order to make it as easy as possible for the RIAA to attack p2p users. The settlement amounts make a fair trial impossible -- even if I were to win in court, I'd be paying at least $3750 in legal fees anyway. And the target group for these suits are people who don't have the assets or the experience to fight these cases."

New York Attorney General (and gubernatorial candidate) Eliot Spitzer filed suit Tuesday against Direct Revenue, LLC alleging that the New York based internet company "surreptitiously installed millions of pop-up ad programs on consumers' computers". These alleged pop-ups not only slow the performance of a user's computer, but also are claimed to "monitor the Internet activity of users." Direct Revenue contends that the suit "is a baseless attempt by the Office of the Attorney General to rewrite the rules of the adware business." Despite these protests, Attorney General Spitzer maintains that he will continue to prosecute Direct Revenue and companies that create similar products because the programs in question are "deceptive and unfair to consumers, bad for businesses that rely on efficient networks to do their jobs, and bad for online retailers that need consumers to trust and enjoy their online experience."

This is not the Attorney General's first attempt to halt the flood of spyware. In 2005, Intermix Media reached a $7.5 million settlement with the New York Attorney General's office in exchange for the office to end its investigation of Intermix's distribution of adware.

At a congressional hearing on the role technology companies have playing in facilitating the Chinese government's repressive practices, Representatives accused the companies of "enabling dictatorship."

Members of Congress blasted four U.S. tech giants Wednesday, accusing the companies of willingly helping China oppress internal dissent in return for access to a booming Internet market.

Representatives from Microsoft Corp., Yahoo Inc., Cisco Systems Inc. and Google Inc. defended themselves at a House International Relations subcommittee hearing, but a Google official acknowledged that figuring out China's Internet market "has been a difficult exercise." . . .

Rep. Tom Lantos, ranking Democrat on the International Relations Committee, told the company officials that they had amassed great wealth and influence "but apparently very little social responsibility."

"Your abhorrent actions in China are a disgrace," the Californian said. "I simply don't understand how your corporate leadership sleeps at night."

USA Today (via Slashdot) reports that Congress is mulling a bill that would require Google and other tech companies "to keep vital computer servers out of China and other nations the State Department deems repressive to human rights." Google, Yahoo and Microsoft have all taken flack recently over their willingness to cooperate with the Chinese government in suppressing politically unpopular opinions.

There is nothing new about the fact that law enforcement officials can (and do) use cell phones as tracking devices. But regular Joe Citizen can do it, too? A Guardian journalist explains how to track people within 150 yards using only their cell phones:

There is no trace of what I'm doing on her phone. I can't quite believe my eyes: I knew that the police could do this, and telecommunications companies, but not any old random person with five minutes access to someone else's phone. I can't find anything in her mobile that could possibly let her know that I'm checking her location. As devious systems go, it's foolproof. I set up the website to track her at regular intervals, take a snapshot of her whereabouts automatically, every half hour, and plot her path on the map, so that I can view it at my leisure.

Click here for the rest of the article.

Google Print, the Internet search company's ambitious project to allow electronic searching of traditionally published materials, went online today with full text versions of works in the public domain. The service, which also provides excerpts from copyrighted works, has come under fire from authors concerned that by scanning their works and making them available online, Google has infringed their copyright. Several publishers and authors' groups have filed suit to stop Google's use of copyrighted works in the program.

Google argues that their use of copyrighted works falls under the fair use exception to an author's exclusive rights under the Copyright Act. Under a fair use analysis, "factors to be considered shall include- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work."

The test is not an exact science. Google addresses many of these points directly in its blog post on the topic, arguing that the purpose is merely to expand the realm of searchable information and Google does not profit directly, the amount shown in a search result is a mere "snippet" of an entire book. As to the market, Google allows publishers to provide links to purchase a hard copy of the book itself directly from the search results.

However, authors' advocates such as the Author's Guild point out that Google is profiting from increased ad revenue from the program, that the scan itself is a full copy and a violation of copyright irregardless of the fact that only small portions are available to the public, and that the works themselves are the types of creative works at the heart of copyright protection. Through their lawsuit, they are seeking licensing fees for use of their works. As the president of the Guild argues:

The value of Google's project notwithstanding, society has traditionally seen its greatest value in the rights of individuals, and particularly in the dignity of their work and just compensation for it.

The people who cry that information wants to be free don't address this dignity or this aspect of justice. They're more interested in ease of assembly. The alphabet ought to be free, most certainly, but the people who painstakingly arrange it into books deserve to be paid for their work. This, at the core, is what copyright is all about. It's about a just return for work and the dignity that goes with it.

Lengthy discussions by a number of experts on Grokster and the Ten Commandments cases have been posted on these two cases.

A myriad of documents -- including marriage and divorce records, property deeds, and military discharge papers -- containing Social Security numbers, dates of birth and other sensitive information is accessible from any computer anywhere. Many of the online records are images of original documents, which also display people's signatures.

One activist in Virginia is expressing her concern about such easy access to this information by posting the Social Security numbers of high-profile individuals, such as Colin Powell and Gov. Jeb Bush, on her website.

The woman, Betty Ostergren, a 56-year-old from just north of Richmond, began organizing citizens and complaining to officials on the issue in 2002, when a title examiner called to warn her that her county was about to put a slew of documents online, including pages with her signature.

Some states have passed or are considering laws restricting the release of certain kinds of data. Florida, for instance, gives consumers the right to have Social Security numbers and other data blacked out from view online. However, few local governments have the resources to go into all existing online records to remove sensitive data.

"Don't you think if I can get Tom DeLay's Social Security number," which is viewable via the Internet on a tax lien filed against him in 1980, "that some guy in an Internet cafe in Pakistan can, too?" Ostergren asks. "It's just ridiculous what we're doing in this country."

by Patrick Shifley, Editor-at-Large

The fate of Peer to Peer file sharing will be determined on March 29th, when the Supreme Court hears the case of MGM v. Grokster. The Court will determine whether the writers of file sharing software are responsible for the possibly illegal acts of their clients. The Court has the opportunity to reconsider its own decision in the seminal copyright case Sony-Betamax, and to determine the limits of the right and ability of manufacturers to regulate consumers.

The case is a second appeal, the first denied by the 9th Circuit, from a summary judgment by the District Court for Central California. That court ruled that Grokster and StreamCast, operators of two file sharing networks, were not liable under vicarious or contributory infringement theories. The much debated appeal, granted certiorari by the Supreme Court on 12/10/04, has garnered a great deal of interest on the Internet and among copy-right holders. Over 50 amicus briefs have been filed with the Court, from parties as diverse as the Kids First Coalition, Intel, and a group of 60 law professors.

The controlling case, Sony-Betamax, has served for 20 years as the seminal case on products capable of being used to infringe copyright. The Supreme Court then determined that the production of Betamax VTRs (VCRs) by Sony did not create liability for the infringing behavior of their purchasers. The decision, against which then Associate-Justice Rehnquist joined in the dissent, ruled that as long as there existed "substantial non-infringing use[s]" the creation of VCRs did not create liability.

by Alex Coolman, Editor at Large

It wasn't too long ago when file-sharing programs like Napster started giving the recording industry nightmares by turning every college dormroom into a conduit for illicit mp3s. The recording industry sleeps a bit easier now, in large part due to a suit by the rock band Metallica which brought an abrupt end to the golden age of free music. Metallica's court victory was a PR nightmare, however. In the wake of the band's suit against Napster, Slashdot published a commentary arguing that "Metallica's efforts to shroud its greed and publicity-seeking in morality is as transparent as it is self-righteous." Another commentator put it more succinctly, "[l]ooking at Metallica now, it's hard to believe they were once really cool." Metallica won their legal battle, but at the expense of many fans.

The use of Internet-related litigation as a way to lose friends and alienate people may have been pioneered by Metallica's crusade against file sharing, but an unlikely company is now following in the middle-aged rockers' wake. Apple, the company that once had a stranglehold on geek chic, has sued a blog to force it to turn over its sources of news. As part of the suit, Apple is making the argument that bloggers shouldn't be afforded the same legal protections as traditional print or broadcast journalists. It's an anti-techie perspective that is frying up Apple's meticulously cultivated street credibility faster than you can say "Ride the Lightning."

Column by Sean Kellogg, Editor-at-Large

The past months have witnessed amazing developments in the area of software patents. First IBM, and then Sun Microsystems, announced they were granting the rights to more than 2000 patents to open source developers for use in software development. The announcement comes at a critical moment in Free/Open Source Software (FOSS) history, with some companies in active litigation over the Linux operating system and others issuing veiled threats. This topic seems a bit removed from the usual fare available on the ACSBlog, but if you give but a few minutes to the following paragraphs, you may decide patents are a bigger deal than you originally thought.

From a legal perspective patents rank as a rather dry subject. A largely technical area of expertise, the patent practice is sometimes called "the sport of kings" as it is dominated by attorneys wielding Ph.Ds and litigated by only the wealthiest companies. It is no wonder many developments in the patent world go unnoticed by the universe around it. But while we may be quite oblivious as to the effects of patent policy, as technology continues its unstoppable creep into our lives, so to does the public policy of patent protection.

The technology hobbyist often acts as our coal mine canary. Hobbyists have often pushed the envelope of technology, offering a glimpse of what behavior is "acceptable" under patent law well before the average user gets their hands on it. They come in all varieties, from ham radio operators to recreational pilots, amateur star gazers, even private astronauts. Each one choosing to embrace a technology, to iron out the kinks and suffer the hazards of early adoption. None of these amateurs have ever really been in a position to threaten their corporate counterparts, until the evolution of the open source software developer.

ACS' Duke Chapter is co-sponoring an event entited "The Effect of the Internet on Federal Rule Making." Speakers include:

• Stuart Benjamin, Professor of Law, Duke University


• Cary Coglianese, Associate Professor of Public Policy, John F. Kennedy School of Government, Harvard University


• John de Figueiredo, Associate Professor of Strategic Management, Sloan School of Management, MIT - Currently visiting at Princeton's Woodrow Wilson School of Public and International Affairs


• Michael Froomkin, Professor of Law, University of Miami School of Law


• Zephyr Teachout, Fellow, Berkman Center for Internet, Law and Society at Harvard Law School

The event will be tomorrow, February 25, from 10:00am-noon. A webcast will be provided, and will be linked to off of ACSBlog.

UPDATE: The webcast is here.

We know by now that 2004 was officially the year of the blog. One offshoot of this is that with so many people posting so many impressions online, the medium has exploded much faster than the law governing it. Who actually owns the content on a weblog? The author? The software provider? How about if an employee hosts a weblog on a company server?

If you ever wondered about some of the IP ramifications of blogs check out this Information Week article.

Column by Sean Kellogg, Editor-at-Large

Last week the European Union was scheduled to take the next procedural step towards approving the so call "Software Directive" that will eventually establish a European software patent regime. Software patents, while nothing new in the United States, have enjoyed only marginal acceptance in Europe. The drive to extend patent protection has increased, however, as the economic fortunes of the European continent have become increasingly tied to intellectual property. The road to a European software patent regime, however, has been a bumpy one with many groups pointing to the American experiment with software patents as an example of what not to do.

In 1981 the United States Supreme Court handed down Diamond v. Diehr on appeal from the Court of Customs and Patent Appeals (the predecessor of the modern Federal Circuit). With one judicial action, the longstanding Patent Act was interpreted to support the patenting of software algorithms. The Court set aside its 1972 Gottschalk v. Benson decision, which had banned the patenting of pure mathematical algorithm, and offered protection to a whole realm of scientific invention previously ineligible for patent. Specifically, the Court allowed a patent provided an invention incorporated the mathematical algorithm with a device, like a general purpose computer. Congress has yet to indicate whether the Court interpreted the Patent Act correctly, but 24 years of Congressional inaction indicates, if nothing else, the lack of any urgency to alter the Court's ruling.

The Brennan Center for Justice, the American Civil Liberties Union of Northern California, and the nonprofit advocacy groups Public Knowledge, the Center for the Public Domain, and the First Amendment Project filed an amicus brief today in Kahle v. Ashcroft, arguing that Congress's elimination of copyright renewal requirements in 1992 created serious First Amendment problems by radically shrinking the public's access to works that belong in the public domain.

The groups challenged a ruling last year by the U.S. District Court in San Francisco that renewal requirements were simply "procedural formalities," rather than important substantive limits on copyright. For this reason, the district court dismissed the Kahle lawsuit. The plaintiffs in the case, represented by the Stanford Center for Internet & Society, have appealed to the Ninth Circuit.

The amicus brief argues that copyright formalities "served free expression values by allowing works whose owners are not concerned with copyright protection at the outset, or who would not renew that protection after a limited term, to enter the public domain." Eliminating these "opt-in" requirements, the groups contend, has created many "orphan" books, films and music recordings that would otherwise have entered the public domain, and whose owners often cannot even be found.

The plaintiffs in the case are the Internet Archive and Prelinger Associates, which publish public domain films and other materials online. They estimate that if not for the elimination of renewal requirements, more than 85% of copyright-protected works would enter the public domain after the initial copyright term expired.

Marjorie Heins of the Brennan Center, who authored the amicus brief, commented: "Formalities such as the original notice, registration, and renewal requirements of copyright law had the very important purpose of making sure that the public domain would be constantly enriched by a steady influx of new works." As the brief argues, the district court, which dismissed the Kahle suit, "wholly ignored the scope and real-world impact of the procedural changes that transformed American copyright law."

On January 21, the Brennan Center for Justice at NYU School of Law and the Electronic Frontier Foundation filed an amicus brief in Bridgeport Music v. Dimension Films, challenging the Sixth Circuit Court of Appeals' elimination of the de minimis exception for copyright in sound recordings, which allows artists to sample small amounts from earlier work to produce new creations. The brief argues that the de minimis rule is a long-standing component of all copyright law and essential to protecting creative freedom.

The brief can be read this link.

UPDATE, 12/21/05, 2:06pm, by Ian: The Brennan Center has provided a press release which expands upon the details of this case:

"The Court of Appeals decision to target trivial borrowing from sound recordings isn't supported by copyright law or sound policy," says Marjorie Heins, coordinator of the Free Expression Policy Project at the Brennan Center. "It ignores the history and purpose of the Copyright Act and stifles creativity."

The brief responds to a lawsuit brought by Bridgeport Music and other owners of the song "Get off Your Ass and Jam." A chord of that song was sampled in the track "100 Miles and Runnin." A federal district court judge found the borrowing of this chord to be de minimis and not in violation of copyright law. A three-judge panel of the Court of Appeals reversed the decision. However, after receiving a petition for rehearing, the judges agreed to reconsider. The Brennan Center/EFF brief urges them to reverse their original ruling and reinstate the de minimis rule.