**** PROGRAM ANNOUNCEMENT ****
ABA CYBERSPACE LAW COMMITTEE – Winter Working Meeting, January 28/29, 2005 at Stanford Law School (guest speakers eBay’s Jay Monahan, TiVO’s Matthew Zinn, and Stanford’s Mark Lemley). No registration fee, but advance registration *IS* required. More information at
Information about past meetings (including archived meeting blogs) at http://lawplace.metadot.com.
**** NEWS ****
NEW GUIDANCE FOR CALIFORNIA PRIVACY COMPLIANCE (Steptoe & Johnson’s E-Commerce Law Week, 11 Dec 2004) -- Every July for the last few years, new California laws regulating technology have taken effect. The plaintiffs’ bar calls it “Christmas in July.” This year, though, California issued a gift at the end of the year -- and some in industry may actually be glad to get it. The California Department of Consumer Affairs’ Office of Privacy Protection (OPP) has released a set of recommendations to assist businesses and other organizations in reviewing and revising their practices for handling customer information. The recommendations are not binding in any way. Instead, they are intended to help entities comply with two recently passed California laws regarding online privacy and the sharing of customer information for marketing purposes. Because so many organizations around the world do business with Californians, the OPP recommendations may prove to be one of the season’s most downloaded legal files. http://www.steptoe.com/index.cfm?fuseaction=DspNewsDetails&id=3805&site_id=182 OPP recommendations at http://www.steptoe.com/publications/331b.pdf
GROUP POLISHES GUIDELINES ON HIPAA SECURITY RULES (Computerworld, 13 Dec 2004) -- A working group made up of members from three organizations plans this month to release guidelines for complying with the data security requirements of the Health Insurance Portability and Accountability Act (HIPAA). The clock is ticking for health care companies to comply with HIPAA’s security provisions, which will take effect in April. The Healthcare Security Workgroup began developing the compliance guidelines in November 2003 and was originally supposed to release them around the middle of this year. But the complexity of pulling the needed information together delayed the project, said Devin Jopp, chief operating officer at URAC, a nonprofit accreditation agency for the health care industry. “It’s taken a lot of lifting,” Jopp said. “It was ambitious, but the group has finally been able to put it together.” The Healthcare Security Workgroup includes representatives from Washington-based URAC, the Workgroup for Electronic Data Interchange (WEDI) in Reston, Va., and the National Institute of Standards and Technology, which is part of the U.S. Department of Commerce. HIPAA’s security rules, which were published in The Federal Register in April 2003, specify administrative, technical and physical measures that companies have to implement to protect confidential patient data. Jopp said the working group’s compliance guidelines are based on a variety of sources, including best-practices documents, case studies and standards efforts by organizations such as the Healthcare Information and Management Systems Society. The guidelines are meant to give IT and business managers “a better feel for what it will take to comply” with the HIPAA rules, said Mark McClaughlin, a Dubuque, Iowa-based regulatory policy analyst at McKesson Corp. McClaughlin is an adviser to the WEDI and co-chairman of the security working group. http://www.computerworld.com/printthis/2004/0,4814,98232,00.html
REMOVE ME! (Salon.com, 14 Dec 2004) -- Do those unsubscribe links actually work, or are they just another spammer scam? A reporter goes undercover in the world of fake Rolexes to find the answer. [Editor: Cute and informative story – a sting, addressing “unsubscribe” links, missing meat-space mailing addresses, and tell-tales.] http://www.salon.com/tech/feature/2004/12/14/spam/index1.html
GOOGLE WINS IN GEICO TRADEMARK LAWSUIT (SiliconValley.com, 15 Dec 2004) -- Google Inc. won a major legal victory Wednesday when a federal judge ruled that the search engine’s advertising policy does not violate federal trademark laws. U.S. District Judge Leonie Brinkema rejected a claim by auto insurance giant Geico Corp., which argued that Google should not be allowed to sell ads to rival insurance companies that appear whenever Geico’s name is typed into the Google search box. Google derives a major portion of its revenues from selling ad space to businesses that bid on search terms -- both generic words and names protected by trademark -- used by people looking for information online about products and services. Geico, a unit of billionaire Warren Buffett’s Berkshire Hathaway Inc., claimed that Google’s AdWords program, which displays the rival ads under a ``Sponsored Links” heading next to a user’s search results, confuses consumers and illegally exploits Geico’s investment of hundreds of millions of dollars in its brand. ``There is no evidence that that activity alone causes confusion,” Brinkema said, in granting Google’s motion for summary judgment on that issue. The ruling, on what the parties considered the seminal issue in the case, came just three days after the trial had begun. David Drummond, Google’s vice president and general counsel, called the decision a victory for consumers. ``It confirms that our policy complies with the law, particularly the use of trademarks as keywords,” Drummond said. ``This is a clear signal to other litigants that our keyword policy is lawful.” http://www.siliconvalley.com/mld/siliconvalley/news/editorial/10423304.htm
IT INDUSTRY’S 12-POINT CYBER-SECURITY PLAN (VUnet, 15 Dec 2004) -- The Cyber Security Industry Alliance (CSIA), a consultative body of computer security professionals, yesterday published a 12-point list for securing America’s IT infrastructure. The list includes ratifying the Council of Europe’s Convention on Cybercrime, strengthening security certifications and leading by example in government procurement. A special ‘Emergency Co-ordination Network’ should also be set up to act as a backup if national systems fail. “The Bush administration has made significant improvements to cyber-security but there is still more that must be done to harden our economy and critical infrastructure against cyber-attacks,” said Paul Kurt, executive director at the CSIA. “The CSIA believes that the time for action is now. We have moved beyond the discussion and planning phase, and have identified concrete actions that can be taken by the administration to immediately improve the security of our nation’s cyber-systems.” http://www.vnunet.com/news/1160087
TERROR DETAINEES WIN LORDS APPEAL (BBC, 16 Dec 2004) -- Detaining foreign terrorist suspects without trial breaks human rights laws, the UK’s highest court has ruled. In a blow to the government’s anti-terror measures, the House of Lords ruled by an eight to one majority in favour of appeals by nine detainees. The Law Lords said the measures were incompatible with European human rights laws, but Home Secretary Charles Clarke said the men would remain in prison. He said the measures would “remain in force” until the law was reviewed. Most of the men are being held indefinitely in Belmarsh prison, south London. The ruling creates a major problem for Mr Clarke on his first day as home secretary following David Blunkett’s resignation. In a statement to MPs, Mr Clarke said: “I will be asking Parliament to renew this legislation in the New Year. “In the meantime, we will be studying the judgment carefully to see whether it is possible to modify our legislation to address the concerns raised by the House of Lords. Solicitor Gareth Peirce, who represents eight of the detainees, said: “The government has to take steps to withdraw the legislation and release the detainees.” If there was no swift government action, the detainees could ask the European Court of Human Rights to get involved, she added. http://news.bbc.co.uk/2/hi/uk_news/4100481.stm
COPYRIGHT CLEARANCE CENTER RELEASES NEW REPORT ON COPYRIGHT IN THE DIGITAL WORKSPACE (Business Wire, 16 Dec 2004) -- Copyright Clearance Center, the world’s premier provider of copyright licensing and compliance solutions, today released a new report titled Copyright in the Digital Workspace. Available for download at www.copyright.com/digital, the report helps businesses understand the ways employees are using copyrighted information and their practices with respect to copyright law. It also offers specific recommendations for reducing the risk of copyright infringement. http://home.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=20041216005532&newsLang=en
U.S. ARMY AIMS TO HALT PAPERWORK WITH IBM SYSTEM (Reuters, 17 Dec 2004) -- The U.S. Army has enlisted IBM and a handful of other companies to create an automated record-keeping system that ends the need for electronic forms to be printed out, signed and delivered up the military service’s chain of command. IBM, the world’s largest computer company, together with PureEdge, an electronic forms supplier, and Silanis, a digital signature technology maker, said on Thursday it has created a complete system to take the paperwork out of Army bureaucracy. When fully implemented over the next decade, the forms management system could save well over a billion dollars a year in unnecessary paperwork and administrative procedures, according an Army Audit Agency report. “It’s anticipated it will offer $1.3 billion in cost avoidance per year,” Jim Acklin, the civilian project manager working for the Army Publishing Directorate, said of the potential cost savings the project hopes to realize. The Army now relies on up to an estimated 100,000 different forms for everything from supply-ordering and pay-disbursement to medical record keeping and the awarding of citations. Currently, the Army has the ability to convert paper-based forms into digital files that can be located on an official Army Web site. But while it is possible to fill-in the form and store the data electronically, users have been forced to print a paper copy, manually sign and then hand-carry or mail the form to complete many authorization processes. http://www.reuters.com/newsArticle.jhtml?storyID=7126627
FTC ISSUES FINAL RULES DEFINING CAN-SPAM (ClickZ.com, 17 Dec 2004) -- One year to the day after the original CAN-SPAM bill was signed into law, the Federal Trade Commission issued final regulations specifying what constitutes an e-mail with “commercial primary purpose”. The ruling closely follows the text of the proposal released on August 13, with important new specifics that seek to dispel the ambiguity around determining the primary purpose of dual-use messages, said Catherine Harrington-McBride, staff attorney for the FTC’s Bureau of Consumer Protection. For single-use messages, either commercial or transactional relationship, the primary purpose is simple enough to determine. However, it is the criteria addressing dual-use messages that will most affect e-mail marketers and advertisers. First, e-mails containing both commercial and transactional relationship content are considered commercial if a recipient reasonably interpreting the subject line would likely conclude that the message contains commercial content. It would also be considered commercial if the e-mail’s transactional relationship content does not appear in whole or substantial part at the beginning of the body of the message. Secondly, for e-mails that contain both commercial content and content that is neither commercial nor transactional or relationship, the primary purpose will be deemed commercial if a recipient reasonably interpreting the subject line or body of the message would likely conclude the primary purpose is commercial. The key factors relevant to that interpretation include the placement of commercial content in whole or substantial part in the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content. “The primary purpose criteria will enable businesses to understand their responsibilities under the CAN-SPAM Act,” Harrington-McBride said. “It sets forth the criteria by which e-mailers can determine whether their messages fall within the commercial category.”Whereas the text of the initial CAN-SPAM law left important questions as to what qualifies as commercial intent open to debate, the new ruling is strikingly more detailed, said Elaine O’Gorman, vice president of Silverpop, an e-mail marketing solutions provider. http://www.clickz.com/news/article.php/3449261 Regulations at http://www.ftc.gov/opa/2004/12/canspamfrn.htm
TIS THE SEASON -- CONGRESS’ GIFT TO PRIVACY CONSULTANTS (Steptoe & Johnson’s E-Commerce Law Week, 18 Dec 2004) -- Sometimes the best place to hide is in plain sight. And several privacy provisions buried deep within the fiscal year 2005 omnibus spending bill (H.R. 4818) are proving that to be true. The provisions will be a great boon to the privacy consulting business -- and might do something for the rest of us as well. The new laws require each government agency to hire a Chief Privacy Officer to “assume primary responsibility” for data protection policy and to contract with privacy consultants to evaluate data protection procedures. Additionally, the measures prohibit the federal government from monitoring individuals’ Internet use. President Bush signed the 658-page spending bill into law on December 8. http://www.steptoe.com/index.cfm?fuseaction=DspNewsDetails&id=3820&site_id=182
TAKING THE FEAR FACTOR OUT OF E-MAIL: AN OBSCURE COMMITTEE IS PROPOSING CONTROVERSIAL RULES FOR DIGITAL EVIDENCE (Business Week, 20 Dec 2004) -- Tort reform is a hot topic again. Taking advantage of the most favorable political climate in years, business lobbyists are pushing for new federal laws that would mop up the asbestos mess, cap medical malpractice damages, and help companies steer class actions out of hostile state courts. But there’s another legal reform campaign that has attracted much less attention -- yet could be more significant than any of these measures. It is Corporate America’s effort to get the Judicial Conference of the U.S. (JCU), the obscure group that makes the rules governing lawsuits, to enact special new procedures for electronic evidence. This broad category of digital information includes spreadsheets, databases, memos, letters, PowerPoint presentations -- and most important, the e-mail messages that have recently plagued so many companies in court. Unlike some of the higher-profile items on this year’s tort-reform agenda, which would affect a comparatively small number of companies, the JCU’s proposed “e-discovery” reforms would influence nearly every big business in America. Digital evidence has revolutionized the litigation battlefield. It makes or breaks many lawsuits -- and has increasingly turned early tactical skirmishes over custody of computer hard drives into some of the most important battles in a case. http://www.businessweek.com/magazine/content/04_51/b3913099.htm
BITTORRENT FILE-SWAPPING NETWORKS FACE CRISIS (CNET, 20 Dec 2004) -- BitTorrent “hubs” that publish lists of movies, TV shows and other free downloads suddenly went dark this weekend, in a major victory for Hollywood that highlights vulnerabilities in technology behind the world’s busiest peer-to-peer network. Last week, the Motion Picture Association of America launched a series of worldwide legal actions, aimed at people who ran the infrastructure for BitTorrent networks being used to distribute movies and other copyrighted materials without permission. The MPAA’s actions have put pressure on a short list of large Web sites that had served as hubs for the BitTorrent community and that had operated for months or even years. Many of those sites have now vanished almost overnight, including the SuprNova.org site that was by far the most popular gathering point for the community, serving more than a million people a day, according to one academic study. http://news.com.com/BitTorrent+file-swapping+networks+face+crisis/2100-1025_3-5498326.html?tag=nefd.lede
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FILE-SWAP SITE FOLDS FOR GOOD (Wired, 20 Dec 2004) -- One of the web’s most popular file-sharing sites has shut down less than a week after Hollywood announced a flurry of lawsuits against operators of such internet servers. A note posted on Suprnova.org, which facilitated sharing among users of the BitTorrent program, said the site was “closing down for good.” The collection of links to downloadable files, including music, movies and books, was taken down. “We are very sorry for this, but there was no other way, we have tried everything,” the statement said. Reached via Suprnova.org’s chat room, the site’s anonymous operator refused to comment on why it had shut down. Last week, movie studios sued more than 100 operators of U.S. and European sites that host BitTorrent links but did not name the defendants. Suprnova.org was the most popular repository for links to files that could be downloaded using the BitTorrent program. Another site that carried BitTorrent links, N4p.com, said it had shut down due to a civil complaint that cited the Digital Millennium Copyright Act. Torrentbits.org and Phoenix-torrents.com also shut down. Still, there were plenty of sites with BitTorrent links alive Monday, including a “mirror,” or copy, of Suprnova.org. BitTorrent has grown quickly in popularity this year, and now accounts for more than a third of all traffic on the internet, according to research company CacheLogic. http://www.wired.com/news/digiwood/0,1412,66099,00.html
THE U.S. PATENT GAME: HOW TO CHANGE IT (Harvard, 20 Dec 2004) -- When lawyers fare better than inventors and entrepreneurs where U.S. patents are concerned, you know injustice is being done. The current system makes patents easier to acquire, sure, but renders them less prestigious as well, and less likely to attract valuable financing. In addition, older firms that are feeling threatened have learned how to bully younger upstarts by wielding licenses and patent law like a weapon. It certainly doesn’t encourage the spirit of innovation, does it? However, it isn’t just the inventors and fledgling businesses that suffer. The economy as a whole does too, in ways that are often invisible. A provocative new book by economists Adam B. Jaffe and Josh Lerner describes what’s wrong, but shines a light on ways to fix the system, too. Their book, Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, was published in November 2004 by Princeton University Press. Jaffe is professor of economics and dean of Arts and Sciences at Brandeis University. Lerner is the Jacob H. Schiff Professor of Investment Banking at Harvard Business School. In Innovation and Its Discontents, Jaffe and Lerner say the patent system is the product of three elements that are required to interact: technology, people, and government. The interaction, which they describe in detail, “ultimately affects us all, and so should concern us all,” they write. In the following interview for HBS Working Knowledge, Lerner explains what’s wrong and how to fix it. http://hbsworkingknowledge.hbs.edu/item.jhtml?id=4548&t=finance
THE TOP 10 CHINESE IP CASES FROM 2004 (BNA’s Internet Law News, 20 Dec 2004) -- China Daily provides a top ten review of the leading IP cases from China over the past year. Cases include copyright claims and patent disputes. http://www.chinadaily.com.cn/english/doc/2004-12/18/content_401345.htm
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TOP 5 PRIVACY ISSUES FOR 2005 (Computer World, 21 Dec 2005) -- During the past year, Ponemon Institute has surveyed thousands of individuals on a variety of issues affecting their privacy, from a universal credentialing system to Internet ads that use personal information to target prospective customers. Emerging trends from our research suggest that individuals view their right to privacy as increasingly important and worry about how organizations collect, use and share their personal information. Other concerns include cybercrime, abusive marketing and loss of civil liberties. Despite privacy concerns, however, the vast majority of people we contacted are willing each day to take significant information-sharing risks for small benefit. These actions include downloading free software, obtaining free Internet services or receiving an e-product coupon. Our studies also show that the U.S. public will often choose convenience over privacy. For example, our 2004 Privacy Trust Study of the U.S. airline Industry found that a majority of consumers were willing to share enormous amounts of personal information with an airline and the federal government if this allowed them to get through airport security checkpoints faster. Based on what we learned from consumers this year, here are what we believe will be the top five privacy and IT ethics issues in 2005 … http://www.computerworld.com/managementtopics/ebusiness/story/0,10801,98448,00.html?SKC=ebusiness-98448
WEB SITE TAKES BETS ON HIGH COURT (National Law Journal, 20 Dec 2004 – subscription required) -- When it comes to picking the next U.S. Supreme Court justice, the safe thing would be to put $100 on 4th U.S. Circuit Court of Appeals Judge J. Michael Luttig. But if you really want to make some money, go with the long shot, the 9th Circuit’s Alex Kozinski. Both judges are among the candidates listed by Betcom Sportsbook, an online betting service based in Costa Rica. The site lets people wager on everything from football scores to whether Bill and Hillary Clinton will get a divorce. “We have people that monitor what’s happening in the world, what’s newsworthy, so to speak,” said Robert Evans, Betcom’s president. The site recently began taking wagers on whom President Bush would appoint to the high court. So far, more than 2,000 bets have been placed, according to the site. Besides Luttig and Kozinski, the list includes a dozen other candidates, complete with odds. Kozinski’s odds, for example, are expressed as “+1,500,” which means a $100 bet would return $1,500 if he’s picked. The odds are set by Betcom and won’t move with wagers. Gamblers can make pretty good money if California Supreme Court Justice Janice Rogers Brown gets the nod-her odds are +600, the same as former Solicitor General Theodore Olson-and even more in the unlikely event that the nominee is Senator Orrin Hatch, R-Utah, who’s at +1,200. You can also bet on who will be the next chief justice. Antonin Scalia is the favorite; David Souter is the long shot. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1103138422553
EBAY FIGHTS INDIA ARREST OVER SALE OF SEX VIDEO (New York Times, 21 Dec 2004) -- The arrest of the Indian-born chief of Baazee.com, the unit of eBay that is India’s largest Internet auction site, has raised an uproar, prompting calls for clearer laws on whether executives of such sites can be prosecuted because of the material, like pornography, that is offered for sale. Avnish Bajaj, chief of Baazee, was arrested Friday in a case related to the sale on the Baazee site of a video clip of a teenage couple from an exclusive New Delhi school engaged in a sex act. Several copies of the clip were sold through Baazee in late November before the sales were stopped, according to the police in New Delhi. In a statement this weekend, eBay said it was outraged at the arrest of Mr. Bajaj, who, it said, had cooperated fully with investigators. EBay said the video clip was not actually shown on the site - the seller had offered it to buyers by simply describing its content. “The listing violated Baazee.com’s policies and user agreement and was removed from the site once it was discovered,” the company said in a statement. In a first-of-its-kind incident in India, the police arrested Mr. Bajaj under the Information Technology Act, which makes publishing or transmitting obscene material in any electronic form punishable by up to five years in jail. http://www.nytimes.com/2004/12/21/technology/21ebay.html?ex=1261371600&en=8adb99aff0bc1f77&ei=5090&partner=rssuserland and http://www.latimes.com/news/nationworld/world/la-fg-cellsex21dec21,0,4140619.story?coll=la-home-headlines
FORRESTER: IT BUDGETS TO JUMP 7 PERCENT IN ‘05 (CNET, 20 Dec 2004) -- A report released Monday by Forrester Research says business leaders are expecting to increase their IT spending by 7 percent in 2005. Forrester indicated, however, that companies may well increase their IT spending to an even larger extent, as the research company believes that respondents to its surveys tend to underestimate how much money they intend to spend. The predictions are based on a survey of 1,300 North American IT executives. Of those surveyed, 54 percent in general harbored a positive outlook for the performance of their businesses over the coming 12 months. A year ago, only 44 percent did, the study said. That finding jibes with earlier research by Forrester, which identified an increase in the overall confidence of chief information officers during each quarter of 2004. Among the organizations expecting the biggest increases in IT spending are those in the public sector, including companies working in the government, health care and education markets. They expect to increase their budgets by 7 percent, Forrester said. Companies in those markets decreased their spending during 2004. http://news.com.com/2100-1012_3-5498084.html
YAHOO DENIES FAMILY ACCESS TO DEAD MARINE’S E-MAIL (CNET, 21 Dec 2004) -- The family of a U.S. Marine killed in Iraq was denied access to the soldier’s Yahoo e-mail account due to the company’s policies, raising questions of whether businesses should balance privacy with special requests. The Marine, Justin Ellsworth, 20, was killed in November by a roadside bomb in Falluja while assisting civilian evacuations before the large-scale military offensive against insurgents in the city, according to a report in the Detroit Free Press. But when Ellsworth’s father John tried to recover his e-mail account, he was barred due to Yahoo’s policy of not giving e-mail passwords to anyone besides the account holder. A Yahoo spokeswoman said the company’s terms of service require the company not to disclose private e-mail communications for its users. Yahoo will turn over the account to family members only after they go through the courts to verify their identity and relationship with the deceased. After 90 days of inactivity, Yahoo deletes the account. “Emotionally, this is very difficult for all involved,” said Yahoo spokeswoman Mary Osako. “However, there are important reasons why we feel it is important to uphold the preferences that are part of the agreement we have with our users regarding their privacy. What all of us are looking for is a path that upholds individual privacy and also fully respects a family’s request.”John Ellsworth’s battle against Yahoo raises the issue of whether companies should depart from their policies under certain circumstances. Some e-mail providers, such as America Online, allow next-of-kin to access e-mail accounts of the deceased by submitting documents proving the relationship and by faxing a copy of the death certificate. AOL does not require loved ones to go through the courts. http://news.com.com/2100-1038_3-5500057.html
SECURITY WORKERS PRAISE SARBANES-OXLEY (CNET, 22 Dec 2004) -- Many security workers feel that government regulations aimed at protecting IT networks from threats are working, according to new survey. The survey, released Wednesday by security services company RedSiren, indicates that many IT professionals view security guidelines as work-intensive. But they also believe the regulations--such as the Sarbanes-Oxley Act, HIPAA (the Health Insurance Portability and Accountability Act) and the Gramm-Leach-Bliley Act--are making a difference. Of the 300 IT professionals interviewed for the study, 66 percent agreed that the government regulations have improved the overall security of the networks they work on. On the flip side, many of the people surveyed said the federal regulations eat up a bulk of their working hours, leaving less time for other security-related projects. Sixty-two percent of respondents said they now spend more time complying with regulations than addressing other security-related matters, and more than 38 percent said this demanding work has caused them to scale back other IT security projects. http://news.com.com/Security+workers+praise+Sarbanes-Oxley/2100-7348_3-5500894.html?tag=nefd.top
SPRUCING UP OPEN SOURCE’S GPL FOUNDATION (CNET, 23 Dec 2004) -- The General Public License (GPL) that is core to many important open-source software projects is being updated, though the release of a version 3 is not yet set, according to GPL author Richard Stallman. There are a number of concerns to be addressed in the next update, perhaps most importantly how patented technology is addressed: Currently, GPL is ambiguous about companies’ patented technology involved in GPL-licensed software; what happens to patented technology when its involved with GPL projects needs to be clearly defined, and Sughrue Mion attorney Frank Bernstein suggests emulating the Apple Public Source License or Common Public License used by IBM, which both cover included patents and punish companies that sue over patented technology by terminating their rights to use and distribute the software. Other open-source experts see GPL version 3 as a way to battle software patents in general. “We need to find some way to monkey-wrench the awful, broken software-patent oligopoly before it does more serious damage,” says Open Source Initiative President Eric Raymond. Open-source advocate Bruce Perens suggests a mutual-defense clause for different open-source licenses that would punish companies that sue over patent infringement by terminating their licenses to all products that fall under the clause. Another issue to be addressed is the use of GPL software with proprietary hardware, such as the TiVo digital video recorder that only allows use of one version of Linux, or developing trusted computing schemes that would require all executable software to be cryptographically signed before being used on a PC. Web services presents another challenge because it redefines the meaning of distribution, reports Hewlett-Packard’s Martin Fink. He wonders whether GPL distribution extends to Web services, where portions of a program are spread over many systems. http://news.com.com/Sprucing+up+open+sources+GPL+foundation/2100-7344_3-5501561.html
COPYRIGHT RULING BURIES WEBLINKING COMPETITOR (Steptoe & Johnson’s E-Commerce Law Week, 25 Dec 2004) -- Let’s say you want to put some images up on your company’s website as advertisements, but you don’t have a license to use those images. Copying the images would open the company to copyright infringement liability. So why not just link to a site that is licensed to display the images and figure out a way to redirect customers back to you after they’ve looked at the pictures? If you think that’s a clever solution, you agreed with the defendant in a recent federal case, Batesville Serv. Inc. v. Funeral Depot Inc. But if you think it’s too clever by half, you agreed with the US District Court for the Southern District of Indiana. And, unless the decision is reversed, that’s what matters. The court held that linking to another website could indeed constitute copyright infringement where the defendant has “extensive involvement” in the content of the linked-to site. The court distinguished an earlier (and more persuasive) California district court ruling in Ticketmaster Corp v. Tickets.com Inc. that “hyperlinking does not itself involve a violation of the Copyright Act.” http://www.steptoe.com/index.cfm?fuseaction=DspNewsDetails&id=3833&site_id=182 Decision at http://www.steptoe.com/publications/333b.pdf
REVEALING THE SOUL OF A SOULLESS LAWYER (New York Times, 26 Dec 2004) -- He lives at the law firm, blowing off his wife’s dinner parties, not to mention the birth of his son. He finds no satisfaction in his work, but he is trapped by his high salary and partner title. He disdains everyone lower in the hierarchy: the smarmy $2,400-a-week summer interns, the idealistic associates who want to help poor people on company time, the associates who have the audacity to become pregnant and his incompetent secretary who broke the crystal plaque he received from a client. He is, in short, a petty, cynical, sexist, miserable, overpaid corporate creep. He is also fictional. But he is apparently all too familiar to thousands of lawyers across the country who are regular readers of his Web log, Anonymous Lawyer, in which he chronicles the soulless, billable-hours-obsessed partners, the overworked BlackBerry-dependent associates and the wrecked families that are the dark underside of life at his large firm in Los Angeles. “What A.L. posts on a daily basis are the precise reasons I have left practice and am now in a `law-related field,’ “ one reader wrote. Hilarious, poignant, maddening (even the readers chide one another for their high-priced whining), the blog, which began appearing in March, has become an anonymous, online 24-hour confessional for disaffected associates at large, elite law firms around the country. http://www.nytimes.com/2004/12/26/fashion/26BLOG.html?ex=1261717200&en=92a97e05adda128f&ei=5090&partner=rssuserland The blog is at http://anonymouslawyer.blogspot.com
REPORT: CRAIGSLIST COSTING NEWSPAPERS MILLIONS (CNET, 27 Dec 2004) -- Free community Web site Craigslist has cost San Francisco Bay Area newspapers up to $65 million in employment advertising revenue, according to a report released Monday. Craigslist, which generates more than 1 billion page-views each month, also has cost the newspapers millions more in merchandise and real estate advertising, and has damaged other traditional classified advertising businesses, according to a report published by Classified Intelligence. “Craigslist has created an extremely important and valuable marketplace, and perfectly illustrates the changing nature of the classified advertising industry,” Peter M. Zollman, founding principal of Classified Intelligence, said in a statement. Craigslist, launched in 1995, is a bare-bones classifieds site for people looking for almost anything, such as apartments, dates or baseball tickets, in 45 cities. The site has since created a flourishing network of online buyers and sellers while maintaining a simple look and feel free from banner ads. Local search advertising revenue is expected to reach $502 million in 2004, up from $408 million last year, according to market researcher Jupiter Research. That number is expected to hit $824 million by 2008. Classified advertising represents a $28 billion to $30 billion business in the United States, including $16 billion in daily newspapers, and an estimated $100 billion business internationally. Online auction giant eBay took a 25 percent stake in Craigslist in August. eBay also announced recently that it would buy online apartment rental service Rent.com for $415 million. http://news.com.com/Report+Craigslist+costing+newspapers+millions/2100-1024_3-5505076.html?tag=nefd.top
A GOOD SEASON FOR ONLINE SALES (CNET, 27 Dec 2004) -- Online sales surpassed the high range of estimates this year, thanks to a rush of last-minute shoppers who snapped up iPods, computers and the occasional power drill. According to ComScore Networks, online sales through the middle of last week reached $13.5 billion, a 28 percent increase from last year’s holiday season. ComScore had expected growth of between 23 percent and 26 percent, while other firms, like Jupiter Research, had predicted a 19 percent rise in sales. Those forecasts were consistent with the idea that the days of breakaway online retail sales growth in the United States were nearing an end. By mid-December, online spending was on track to reach the low end of those estimates. But because more Internet merchants continued taking orders much later into the Christmas season than in years past, e-commerce sales shot up by 57 percent in the week ended Dec. 19, compared to the same period last year. “That literally transformed the season,” said Graham Mudd, an analyst for ComScore. By contrast, offline holiday sales are forecast to record a much more modest gain. According to the National Retail Federation, an industry trade group, total retail sales for November and December were on pace to reach $220 billion, an increase of 4.5 percent from last year. http://news.com.com/A+good+season+for+online+sales/2100-1038_3-5504914.html?tag=nefd.top
CAN-SPAM DIDN’T, SURVEY SAYS (CNET, 29 Dec 2004) -- Nearly a year after its passage, the federal Can-Spam law has done little to curb spam, according to a year-end report due Monday. MX Logic, an antispam company, said its surveys for the year showed widespread and flagrant disregard for the U.S. law that went into effect Jan. 1. “The Can-Spam law has been in place for a year now, and according to our studies we’ve seen very little compliance,” said Scott Chasin, chief technology officer of MX Logic in Denver. “The real benefit of Can-Spam is to the service providers, giving them the ability to go after those who send spam.” Large Internet service providers have indeed used the law to file suits against spammers. Microsoft this month filed seven suits alleging Can-Spam violations. Can-Spam regulated how people and organizations could send unsolicited commercial e-mail, but 97 percent of such e-mail sent this year violated the law, according to MX Logic. Spam made up 77 percent of e-mail traffic as a whole over the course of the year, MX Logic said. That’s not even as bad as antispam company Postini’s estimate that legitimate e-mail plummeted to 12 percent from 22 percent of e-mail traffic in 2004. Despite the federal law, the U.S. dwarfed its nearest rival, South Korea, in being the origin of 42 percent of all spam this year. http://news.com.com/Can-Spam+didnt%2C+survey+says/2100-1030_3-5506976.html?tag=nefd.top
INTERNET SITES ALLOW GIFT CARD EXCHANGES (AP, 31 Dec 2004) -- The gift card — often viewed as the little, plastic solution for keeping friends and family out of the return lines — doesn’t always serve as the ideal present. Responding to consumers who don’t want to buy themselves another sweater, or will take a pass on a fancy steak dinner, Internet businesses have sprung up allowing people to sell or swap unwanted gift cards. “Isn’t it great?” asked Mike Kelly, vice president of SwapAGift.com. “The market will create exactly the mechanism it needs to correct any problem.” He and his wife, Mary Jane, created the Langhorne, Pa.-based Web business SwapAThing, Inc. last fall, after realizing they had about a dozen gift cards they weren’t using. They decided to create a place where people could trade in the cards they didn’t want, or receive some cash back for them. They’re not the only ones with the idea. The online giant eBay Inc. had more than 7,500 gift cards and certificates listed for sale or auction during a recent check. The eBay site doesn’t allow bartering. And a new St. Louis-based business CardAvenue.com launched in October. CardAvenue’s CEO Bob Butler said people need to realize that their unused gift cards amount to wasted money, but they can benefit if they sell or trade them. “Even if it’s $5 or $10, they should do something with it,” he said. http://story.news.yahoo.com/news?tmpl=story&cid=74&e=1&u=/cmp/20050101/tc_cmp/56900113 [The ABA produced a website with consumer advice on gift cards – see http://www.abanet.org/buslaw/committees/CL230000pub/giftcard/home.shtml]
DIGITIZED PRINTS CAN POINT FINGER AT INNOCENT (Chicago Tribune, 3 Jan 2005) -- Deep inside a sprawling complex tucked in the hills of this Appalachian town, a room full of supercomputers attempts to sift America’s guilty from its innocent. This is where the FBI (news - web sites) keeps its vast database of fingerprints, allowing examiners to conduct criminal checks from computer screens in less than 30 minutes--something that previously took them weeks as they rummaged through 2,100 file cabinets stuffed with inked print cards. But the same digital technology that has allowed the FBI to speed such checks so dramatically over the last few years has created the risk of accusing people who are innocent, the Tribune has found. Across the country, police departments and crime labs are submitting fingerprints for comparisons and for entry into databases, using digital images that may be missing crucial details or may have been manipulated without the FBI knowing it. Not unlike a picture from a typical digital camera, a digital fingerprint provides less complete detail than a traditional photographic image. That matters little with pictures from the family vacation. But when the digital image is of a fingerprint, the lack of precision raises the specter of false identifications in criminal cases. “There’s a risk that not only would they exclude someone incorrectly--we have the potential to identify someone incorrectly,” said David Grieve, a prominent fingerprint expert who is the latent prints training coordinator for the Illinois State Police crime lab system. An FBI-sponsored group of fingerprint examiners was concerned enough about the quality of digital images that in 2001 it recommended doubling their resolution. Three years later, though, the vast majority of police agencies still use equipment with the lower resolution. http://story.news.yahoo.com/news?tmpl=story&cid=2027&e=1&u=/chitribts/20050103/ts_chicagotrib/digitizedprintscanpointfingeratinnocent
**** RESOURCES ****
LEGAL WEB WATCH: BEYOND BLOGS (Law.com and Robert J. Ambrogi, 20 Dec 2004) -- With so much attention focused on the explosive growth of blogs in 2004, other law-related Web sites arrived quietly. Following is a roundup of some useful, intriguing law-related sites that launched this year… http://www.law.com/jsp/ltn/pubArticleLTN.jsp?id=1103138424172
1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School, http://cyber.law.harvard.edu.
2. Edupage, http://www.educause.edu/pub/edupage/edupage.html.
3. SANS Newsbites, firstname.lastname@example.org.
4. NewsScan and Innovation, http://www.newsscan.com.
5. Internet Law & Policy Forum, http://www.ilpf.org.
6. BNA’s Internet Law News, http://ecommercecenter.bna.com.
7. The Ifra Trend Report, http://www.ifra.com/website/ifra.nsf/html/ITR-HTML.
8. Crypto-Gram, http://www.schneier.com/crypto-gram.html.
9. David Evan’s “Internet and Computer News”, http://www.abanet.org/scripts/listcommands.jsp?parm=subscribe/at-internet
10. Readers’ submissions, and the editor’s discoveries.
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