Saturday, June 21, 2008

MIRLN 1-21 June 2008 (v11.08)

**************Introductory Note**********************

MIRLN (Misc. IT Related Legal News) is a free product for members of the American Bar Association’s Cyberspace Law Committee, et al., and is produced by

Members of the ABA Cyberspace Law Committee automatically receive MIRLN postings (about every third week); members can manage their subscriptions at (find the “Listserves” box; MIRLN comes through the CLCC-MEMS listserve). Others who wish to be added to the MIRLN distribution list should send email to Vince Polley ( with the word “MIRLN” in the subject line, and similarly will be removed from the distribution list after sending email to Vince with the words “MIRLN REMOVAL” in the subject line.

Recent MIRLN issues are archived at

**************End of Introductory Note***************

JAPANESE ‘FAIR USE’ STIPULATION PLANNED FOR INTELLECTUAL PROPERTY (, 28 May 2008) - The government will ease its stringent restrictions on using copyrighted works, a development that will affect activities ranging from posting personal pictures on websites to developing Internet search engines, sources said. The Intellectual Property Strategy Headquarters, led by Prime Minister Yasuo Fukuda, has decided to make a Japanese version of a U.S. copyright law stipulation that allows for the “fair use” of copyrighted works for criticism, analyses, media reporting and research. The decision was made to make it easier for venture companies to start new businesses, such as developing a rival to Google. The government intends to revise the Copyright Law to include a fair use stipulation as early as next year. The current Japanese Copyright Law, in principle, prohibits any copying of other people’s works or distributing them on the Internet without permission. Exceptions to the law are copying works for personal use at home or for use in schools. The planned stipulation will largely follow the one under the U.S. copyright law, which bases fair use on certain factors, including: whether the use of works is intended for commercial purposes; and whether the use of works influences the market of those works. The Japanese stipulation will also contain the condition that the use of other people’s works must not unfairly hurt the interests of the copyright holders, the sources said. The current Copyright Law is sweeping in its application. For example, blogs featuring holiday photos of authors posing with anime characters in amusement parks could constitute a violation of the law. That is because the law does not have a specific stipulation that allows such use. In addition, the creation of parodies based on other people’s works could also be considered a violation. Those activities could be regarded as legal under the fair use stipulation. Archive services that copy and store information on websites could also become legal under the revised law, allowing companies to start up such businesses, the sources said.

SUPREME COURT REJECTS FANTASY BASEBALL DISPUTE (CNET, 2 June 2008) - Major League Baseball has struck out in its attempt to get the U.S. Supreme Court to intercede in a fantasy baseball dispute. The justices on Monday said they won’t take up MLB’s challenge, backed by the National Football League Players Association, of prior court rulings favoring a fantasy league company. The announcement came without comment in a standard list of case statuses published by the high court. MLB’s Internet media arm, later joined by the pro-baseball players’ union, had claimed that C.B.C. Distribution and Marketing--a Missouri company that sells fantasy sports products via the Web, e-mail, regular mail, and phone--was using baseball players’ names and statistics without a license, thereby violating the players’ rights to publicity under state intellectual property laws. (A right to publicity, of course, is a person’s right to control and profit from the commercial use of his name and likeness.)The original lawsuit actually came from C.B.C. The company sued MLB after the pro baseball association began providing fantasy baseball games on its own Web site. MLB offered C.B.C. a license only to promote MLB’s products, not to continue selling its own fantasy baseball games. Fearing a lawsuit from MLB if it continued business as usual, C.B.C. filed its own suit. C.B.C. won at the district court level and again last year at the appeals court level, which held that the company’s “first amendment rights in offering its fantasy baseball products supersede the players’ rights of publicity.”

AMAZON COLLECTING SALES TAX FROM NEW YORK CUSTOMERS (Dallas News, 2 June 2008) - is giving up its sales tax advantage in New York temporarily, while its edge in Texas continues to be investigated. started collecting sales taxes from its New York customers on Sunday. The retail giant decided to comply with a new state law while it continues to oppose it in a suit before the New York Supreme Court, spokeswoman Patty Smith said. Whether the Seattle-based Internet superstore should be collecting sales taxes in Texas continues to be the focus of an investigation by the Texas Comptroller’s Office, said R.J. DeSilva, a spokesman for the state agency. New York’s newly enacted law requires out-of-state retailers to collect sales taxes if they pay “associate” Web sites a fee for customer referrals to says it shouldn’t have to collect sales taxes from customers in New York because it doesn’t have a physical presence in the state, a long-standing criterion for catalog and Internet sellers. However, that defense raised some questions in Texas, where has operated a distribution center in Irving since 2006 without collecting sales taxes from its Texas customers. says a subsidiary owns that distribution center, which exempts it from the Texas law.

GOOGLE ATTACKED OVER PRIVACY POLICY VISIBILITY (CNET, 3 June 2008) - Google is facing the wrath of privacy advocates once again over concerns that it’s not posting its privacy policy “conspicuously” enough to comply with California law. On Tuesday, a coalition of groups that have questioned Google’s practices in the past sent a four-paragraph letter to CEO Eric Schmidt, charging that “Google’s reluctance to post a link to its privacy policy on its home page is alarming.” The signatories include the Electronic Privacy Information Center, Electronic Frontier Foundation, the American Civil Liberties Union of Northern California, Privacy Rights Clearinghouse, Center for Digital Democracy, and World Privacy Forum. What’s not precisely clear is whether Google is actually doing anything unlawful. Google, for its part, disagrees with such assertions. The issue started bubbling up last week, when New York Times reporter Saul Hansell posted a blog entry raising questions about Google’s compliance with the California Online Privacy Protection Act of 2003. By contrast, he noted, Google’s major competitors--Microsoft, Yahoo, and AOL--all provide links to their privacy policies on their home pages. The California law in question requires commercial Web sites that collect personal information about their users to “conspicuously post its privacy policy on its Web site.” It defines the action “conspicuously post” as, among other things, placing a text link to the privacy policy either “on the home page or first significant page after entering the Web site.” The link itself is supposed to include the word “privacy” or appear in a larger font than the rest of the page’s text. At the moment, getting to Google’s privacy policy requires clicking on “About Google” on its home page, which brings up a page that includes a link to its privacy policy at the bottom.

E-DISCOVERY DISCLOSURE GOOF WAIVED ATTORNEY-CLIENT PRIVILEGE, JUDGE RULES (ABA Journal, 4 June 2008) - A federal magistrate in Baltimore has ruled a company sued for infringement has no attorney-client privilege in 165 documents mistakenly turned over to its opponent in e-discovery. The documents included several communications between the company Creative Pipe Inc. and its lawyers. U.S. Chief Magistrate Judge Paul Grimm ruled Creative Pipe had failed to demonstrate it took reasonable precautions to prevent disclosure when it used an untested keyword search to find potentially privileged documents. Lawyers told the Maryland Daily Record the opinion provides a cautionary tale to litigants. “All keyword searches are not created equal,” Grimm wrote in the May 29 opinion (PDF). “Any order issued now by the court to attempt to redress these disclosures would be the equivalent of closing the barn door after the animals have already run away.” Creative Pipe had requested a clawback agreement entitling it to retain the privilege on documents inadvertently disclosed, but abandoned the request when it was allowed four additional months for discovery. The company said the time would make it possible to conduct a document-by-document privilege review, according to the opinion. Creative Pipe’s e-discovery expert had used about 70 keywords to find documents submitted to the company’s former lawyers for a privilege review. Documents that were not text-searchable were submitted to the lawyers for individualized review, but because of time constraints, the lawyers only looked at the document titles, the opinion says. Those that appeared to raise privilege issues were then read individually. At the time, the company was represented by lawyers from Meyer, Klipper & Mohr. Grimm wrote that the defendants were “regrettably vague” in their description of the 70 keywords and said a growing body of literature highlights the risks of unreliable keyword review. The defendants did not sample the documents produced, “the only prudent way to test the reliability of the keyword search,” Grimm wrote. Decision here:

UNITEDHEALTHCARE DATA BREACH LEADS TO ID THEFT (CSO Online, 4 June 2008) - A data breach at UnitedHealthcare has led to a rash of identity-theft crimes at the University of California, Irvine. To date, 155 graduate and medical students at the school have been hit by the scam, in which criminals file false tax returns in the victim’s name and then collect their tax refunds.The breach affects 1,132 graduate students who were enrolled with the University’s Graduate Student Health Insurance Program in the 2006-07 school year, said Cathy Lawhon, media relations director with the university. University of California, Irvine (UCI) police and IT staff have been investigating the crime for several months, she said. “In February, the police began getting reports from graduate students that when they filed their income tax returns, they were being told that their returns had already been filed using their Social Security numbers,” she said.

COPYRIGHT QUIZ LIMITS STUDENTS’ MUSIC FILE SHARING (AP, 4 June 2008) - A tech-savvy university near the Missouri Ozarks is resorting to an old standby to reduce illegal music downloads by students: the pop quiz. Missouri University of Science and Technology now requires students to ace a six-question quiz on digital copyright law to get six hours of access to peer-to-peer software they can use to share music and movies online. The quiz has cut copyright complaints on campus from recording industry to eight this academic year, down from 200 in 2006-07, said Tim Doty, a campus systems security analyst. “We’re still allowing peer-to-peer access,” Doty said, “but in a controlled fashion. We’re providing them the information to make an informed decision.” Missouri S&T students who violate copyright law may lose their Internet privileges or face fines, community service, extra research assignments or suspension from classes. Violations of the Digital Millennium Copyright Act also can draw lawsuits by the recording industry, which often cost several thousand dollars to settle. Universities that fail to stop repeat offenders can face liability too. Several schools have addressed the problem by eliminating access to peer-to-peer software, even though it is used by academic researchers to share data. Most schools that continue to allow access have toughened penalties for piracy, including completing tests like Missouri S&T’s or watching an anti-piracy DVD provided by the recording industry. The Missouri school appears to be the only U.S. campus that requires a test in advance, Doty said. At Stanford, students who don’t remove illegal downloads from their computers must pay $100 to reconnect to the Internet once they’re found out. A second offense boosts the reconnection fee to $500.

FIFTH CIRCUIT RULES THAT CDA BARS SUIT AGAINST MYSPACE FOR FAILURE TO PROTECT MINOR (Steptoe & Johnson’s E-Commerce Law Week, 5 June 2008) - The Fifth Circuit recently held in Doe v. MySpace Inc. that section 230(c)(1) of the Communications Decency Act (CDA) barred a mother and daughter from suing MySpace Inc. and its parent company, News Corporation, for negligence after the daughter was sexually assaulted by a man she first met on The court ruled that MySpace could not be held liable for its alleged failure to protect the daughter, since doing so would treat MySpace as a publisher of information provided by another content provider, in violation of section 230. Websites that handle third-party content will probably welcome the Fifth Circuit’s ruling. But, given its limited scope and several less favorable opinions by other courts in recent months, the strength of websites’ CDA immunity remains very much an open question.

THE INEXACT SCIENCE BEHIND D.M.C.A. TAKEDOWN NOTICES (New York Times, 5 June 2008) - A new study from the University of Washington suggests that media industry trade groups are using flawed tactics in their investigations of users who violate copyrights on peer-to-peer file sharing networks. Those trade groups, including the Motion Picture Association of America (M.P.A.A.) Entertainment Software Association (E.S.A.) and Recording Industry Association of America (R.I.A.A.), send universities and other network operators an increasing number of takedown notices each year, asserting that their intellectual property rights have been violated under the Digital Millennium Copyright Act. Many universities pass those letters directly on to students without questioning the veracity of the allegations. The R.I.A.A. in particular follows up some of those notices by threatening legal action and forcing reported file-sharers into a financial settlement. But the study, released Thursday by Tadayoshi Kohno, an assistant professor, Michael Piatek a graduate student, and Arvind Krishnamurthy, a research assistant professor, all at the University of Washington, argues that perhaps those takedown notices should be viewed more skeptically. The paper finds that there is a serious flaw in how these trade groups finger reported file-sharers. It also suggests that some people might be getting improperly accused of sharing copyrighted content, and could even be purposely framed by other users. In two separate studies in August 2007 and May of this year, the researchers set out to examine who was participating in BitTorrent file-sharing networks and what they were sharing. The researchers introduced software agents into these networks to monitor their traffic. Even though those software agents did not download any files, the researchers say they received more than 400 take-down requests accusing them of participating in the downloads. The researchers concluded that enforcement agencies are looking only at I.P. addresses of participants on these peer-to-peer networks, and not what files are actually downloaded or uploaded — a more resource-intensive process that would nevertheless yield more conclusive information. In their report, the researchers also demonstrate a way to manipulate I.P. addresses so that another user appears responsible for the file-sharing. An inanimate object could also get the blame. The researchers rigged the software agents to implicate three laserjet printers, which were then accused in takedown letters by the M.P.A.A. of downloading copies of “Iron Man” and the latest Indiana Jones film.

GOSSIP BLOGS BEDEVIL LAW FIRMS (, 5 June 2008) - Many of the nation’s most renowned law firms have felt the public relations wallop delivered by law gossip blogs, those online tabloids that can turn an interoffice memo into a virtual billboard of bad news for partners or associates. Whether the topic is layoffs or love affairs, it seems that no subject is too edgy for sites such as Above the Law, Greedy Associates, AutoAdmit and a few others that dig up the legal profession’s dirt. The immediacy -- and, at times, the brutality -- of the media form is presenting a challenge for firms that are wary of their private matters entering the public domain. “We’re sensitive to the issue that things can very easily end up in cyberspace,” said Mairi Luce, a partner at Duane Morris who also handles associate training and development. Duane Morris “monitors” the blogs, Luce said, “to see what’s out there in terms of gossip.” At bonus time last year, Duane Morris sat back and watched while some law firms sent e-mail to associates announcing their bonus amounts, which then were posted on Above The Law and elsewhere. The postings prompted Duane Morris associates to press management for the details about their own pending bonuses, Luce said, which the firm subsequently disclosed in one-on-one meetings. Although private meetings do not prevent anyone from revealing the content of a conversation to a gossip blog, they make it more difficult for the information to make the rounds without the glaring reality of a document. “We’re a little bit more cautious and slower to put information out there,” she said. Gossip blogs have created an immediacy of information and a quick way to share comments, compared with newspapers and magazines, said Rodgin Cohen, chairman of Sullivan & Cromwell. But the rule for law firms to follow has remained the same over time: “With any widely disseminated message, you have to ask if you’re prepared to see it in a publication,” he said. New York-based Sullivan & Cromwell was highlighted for months on law blogs after former associate Aaron Charney filed a lawsuit in January 2007 alleging that he was subjected to sexual orientation harassment and retaliation by the firm. The case settled last year. “I accept that publicity is a good disinfectant,” Cohen said. Still, Sullivan & Cromwell has asked attorneys not to contact press regarding firm matters. And if it is a client matter, “it would be cause for immediate dismissal,” Cohen said. A law firm can prohibit, as a term of employment, its attorneys from contacting the media about its inner workings, said Sarah Pierce Wimberly, a partner at Ford & Harrison, a labor and employment law firm. Whether the restriction is written or verbal, law firms have the power to fire attorneys if they violate such an agreement, Wimberly said. But most firms do not have such agreements, she said, partly because their leaders are older and do not realize the impact that leaks to blogs can have.

IN RE SEALING AND NON-DISCLOSURE OF PEN/TRAP/2703(D) ORDERS (S.D. TEX, MAY 30, 2008) (Wake Forest Nat’l Security Law e-mail list managed by Bobby Chesney, 8 June 2008) - An interesting opinion on the sealing of applications for pen registers, trap/trace devices, and customer info records under § 2703(d) of the Stored Communications Act, in the context of criminal investigations. From the opinion: “On March 19, 2008, the Government submitted two applications for a pen register and trap/trace device on two cell phones allegedly used by an individual engaged in illegal drug trafficking. Following its usual practice in this district, the Government combined each application with a request for customer information regarding the target phones under SCA § 2703(d). Each application concluded with the Government’s standard request that the combined pen/trap/2703(d) orders (and underlying applications) be sealed and not disclosed by the service provider to the user or subscriber “until further order of the court.” This court has acceded to such requests in the past, but almost never has occasion to revisit them, as shown below. The result has been a kudzu of sealed manila envelopes overflowing the clerk’s office vault. Upon further deliberation, the court is convinced that setting a fixed expiration date on sealing and non-disclosure of electronic surveillance orders is not merely better practice, but required by law: in particular, the First Amendment prohibition against prior restraint of speech and the common law right of public access to judicial records. The considerations underlying this departure from previous practice are explained below.” Ruling here:

SOUTH FLORIDA LAW FIRM’S WEBSITE WORRIES ETHICS EXPERTS (ABA Journal, 9 June 2008) - A full-time adviser to the Miami-Dade County mayor in South Florida also happens to be a lawyer. And, on the website for Gazitua Letelier, the law firm of which Luis Andre Gazitua, 32, is a founding partner—at least until recently—was a photograph of Gazitua looking into downtown Miami from an office atop the Miami-Dade County hall, according to the Miami Herald. Also featured on the website, the newspaper notes, is a description of one key area in which the firm provides legal representation: “Our Government Policy Practice attorneys work with all branches of government, through both traditional and innovative channels, to promote and protect our clients’ interests, and to formulate legislative, regulatory and political strategies to support our clients’ needs.” “There is no evidence that Gazitua’s private business has profited from his public post, but touting his county position on the website troubles ethics experts,” the newspaper writes, explaining that a county policy prohibits employees from using public office for private financial gain. Additionally, “legal experts say the trumpeting of his county post on his law firm’s website raises an appearance of impropriety,” from the standpoint of attorney ethics standards, the Herald says. It appears that Gazitua may have read the article along with Herald subscribers: There is now no sign of the photograph the newspaper describes in the law firm’s website, which features an illustration of a maze and a photograph of massive building columns.

WACHOVIA SET TO GIVE 120,000 USERS ACCESS TO WIKIS, BLOGS AND SOCIAL NETWORKS (Computerworld, 9 June 2008) - The agenda for last year’s Enterprise 2.0 Conference was vendor- and analyst-heavy, since, at the time, few end-user companies were widely using the Web 2.0 technologies that were nurtured by the consumer market. The agenda for this year’s conference, which opened today in Boston, indicates that the technologies have spread through some top companies over the past year. For example, in a keynote speech Wednesday, Pete Fields, e-business director for employees and corporate services at Wachovia Bank, will talk about the firm’s rollout of wikis, blogs and employee social profiles to 60,000 users to date, and its plans to double that total later this year. In an interview with Computerworld today, Fields said that the Charlotte, N.C.-based bank has moved to embrace Enterprise 2.0 technologies to meet the needs of the its young Generation Y workers, who grew up continuously “connected”; to capture the knowledge of retiring workers to avoid brain drain; and to provide all its employees better ways to work together.

- and -

CIA EXPLAINS ITS WIKIPEDIA-LIKE NATIONAL SECURITY PROJECT (Computerworld, 10 June 2008) - For any company moving to embrace Enterprise 2.0, some resistance to the tools that first gained traction within the consumer space is often inevitable. But when some in the CIA began pitching Intellipedia, a Wikipedia-like project for its analysts and spies, they were met with some fierce critics. “We were called traitors, [and were told] we were going to get people killed,” Don Burke, Intellipedia’s doyen in the CIA, said today at the Enterprise 2.0 Conference here. Sean Dennehy, the CIA’s Intellipedia evangelist, added that selling superiors on the use of such tools for collaboration was especially tricky. “We still call spies collaborators,” he noted. “We’re trying to encourage collaboration, but there is still a negative connotation with that word.” Despite the early challenges, the CIA now has users on its top secret, secret and sensitive unclassified networks reading and editing a central wiki that has been enhanced with a YouTube-like video channel, a Flickr-like photo-sharing feature, content tagging, blogs and RSS feeds. Underscoring how vital Intellipedia has become to the agency, the CIA has been providing briefings about data posted on the wiki since October 2007, according to the pair. They did not provide details on who or what agencies they were briefing based on content from the project. Burke noted than Intellipedia includes instructions from a 1944 CIA field manual for sabotaging companies. The manual suggests that agents encourage companies to use channels to make decisions, and when possible refer matters to committees for further study and consideration. Companies will face further strife when spies within encourage haggling over the precise wording of communications. Ironically, many companies now follow such policies, which today discourage the use of Web 2.0 tools. “In big organizations, there is always someone who can say no,” Burke said. “It is really hard for organizations to change because everyone is looking for someone else to say its OK. Web 2.0 has allowed us to create new avenues of dialogue, to allow new ideas to emerge.”

- and -

BRITANNICA TO CAUTIOUSLY TRY HARNESSING USERS FOR CONTENT (ArsTechnica, 9 June 2008) - The past few years have seen the rise of user-contributed content, with Wikipedia being a high-profile example of this phenomenon. The appearance of Wikipedia entries atop the list of sites returned by search engines, and the corresponding appearance of these entries in places like term papers, has triggered a debate regarding the reliability of its content. Leading the charge against Wikipedia has been The Encyclopedia Britannica, which relies on expert, edited contributions for its content. Last week, however, Britannica announced what might be viewed as the unthinkable: it’s implementing a tightly controlled system that just might allow users to generate some of its content. The new policy was announced via a set of two posts in the Britannica blog. The posts make it very clear that Britannica is not embracing the wiki model to any significant degree. The role of the Britannica staff in policing its content will remain: “We are not abdicating our responsibility as publishers or burying it under the now-fashionable ‘wisdom of the crowds.’” The majority of its content will continue to be generated by experts and subjected to editing. The experts and editors, in Britannica’s view, “can make astute judgments that cut through the cacophony of competing and often confusing viewpoints.” This willingness to interject expert judgement is what will ostensibly continue to separate it from Wikipedia, which is accused of settling, “for something bland and less informative, what is sometimes termed a ‘neutral point of view.’” What’s new in the system being announced is that Britannica’s experts will come a bit closer to the scrum. Contributors to the Encyclopedia are being encouraged to create non-anonymous profiles on Britannica’s site, in which they describe their qualifications and list their other works on the topics. These experts will get unidentified incentives to generate new content there; comments on Britannica entries, updated versions of their own, or possible new content all seem fair game.

NOW PROFESSORS GET THEIR STAR RANKINGS, TOO (New York Times, 9 June 2008) - First came the Amazon book rankings, and word leaked out that perhaps some vaunted writers spent more time than you would think checking how popular they were, hour by hour. Then newspapers started tracking the most popular articles on their sites and journalists, it was said, spent more time than you would think watching their rankings, hour by hour. But would you believe that academics could become caught up in such petty, vain competition? Of course, you say. Still, short of hanging out in the stacks at the library and peeking over shoulders, the pursuit of that particular vanity had to wait for the Internet, and the creation of the Social Science Research Network, an increasingly influential site that now offers nearly 150,000 full-text documents for downloading. The network is a business set up in 1994 by five people who saw a niche in online academic research. They pooled their money and began building relationships and the infrastructure to post so much material. All but one comes from the world of economic and legal scholarship, and it is in those areas that the network is strongest, adding an estimated 45,000 articles or so a year. Actually, articles may be too strong a word for what you can find on the site — the texts include pensées, abstracts, informal arguments, outlines, rough drafts and working papers, up to the finished products you might find in academic journals. So far, more than 550,000 users have registered to download documents. And with a precision common to the digital age, its rankings of downloads can be sliced and diced in many ways with only a click: most downloads over all or most downloads in the last 12 months, either by article, by author or by institution. The network was not created to be a Top 40 list for academics, said Michael C. Jensen, its chairman and one of its founders, but it has turned out that way.

YOUR PAPERS PLEASE: TSA BANS ID-LESS FLIGHT (CNET, 9 June 2008) - In a major change of policy, the Transportation Security Administration has announced that passengers refusing to show ID will no longer be able to fly. The policy change, announced on Thursday afternoon, will go into force on June 21, and will only affect passengers who refuse to produce ID. Passengers who claim to have lost or forgotten their proof of identity will still be able to fly. As long as TSA has existed, passengers have been able to fly without showing ID to government agents. Doing so would result in a secondary search (a pat down and hand search of your carry-on bag), but passengers were still permitted to board their flights. In some cases, taking advantage of this right to refuse ID came with fringe benefits--being bumped to the front of the checkpoint queue. For a few years after September 11, 2001, TSA’s policies when it came to flying without ID were somewhat fuzzy. The agency, like many other parts of the Bush Administration, has hidden behind the shroud of classification--in TSA’s case, labeling everything Sensitive Security Information. Seeking to clarify the rules, activist John Gilmore took the U.S. government to court in 2004. Gilmore chose to take a particularly hard line, by refusing to show ID to TSA and also by refusing to undergo the more thorough “secondary screening” search. He eventually lost his case before the 9th Circuit of the U.S. Court of Appeals.

FORMER JUSTICE PROMOTES WEB-BASED CIVICS LESSONS (New York Times, 9 June 2008) - Sandra Day O’Connor, the former Supreme Court justice, began her remarks at the Games for Change conference in New York by saying aloud what the few hundred people in the audience were already thinking. “If someone had told me when I retired from the Supreme Court about a couple of years ago that I would be speaking at a conference about digital games, I would have been very skeptical, maybe thinking you had one drink too many,” she said to laughter Wednesday in an auditorium downtown at Parsons the New School for Design. Yet there she was, a notable figure in modern history, at once engaging and imposing as she explained why she had embraced the Internet and interactive digital media as an essential tool for preserving American democracy. In cooperation with Georgetown University Law Center and Arizona State University, Justice O’Connor is helping develop a Web site and interactive civics curriculum for seventh-, eighth- and ninth-grade students called Our Courts ( The initial major elements of the site are scheduled to become available this fall. Since retiring from the bench in 2006, Justice O’Connor, 78, has spoken forcefully and often about the dangers posed by efforts to politicize the judiciary. Her thoughts are well known to legal scholars. With Our Courts she hopes to foster a deeper understanding of American government among schoolchildren. The site will have two parts, an explicitly educational component for use in schools and a more entertainment-oriented module that will more closely resemble games. As one would expect from such a significant jurist, she made a neat case.

BBC TO BUILD WEB PAGE FOR EVERY TV SHOW (The Guardian, 10 June 2008) - The BBC is to create a web page for every episode of every television programme it has ever produced as part of a huge online archive that will span nearly 80 years. BBC executives hope the move will give its programmes a longer shelf life as well as plugging gaps on its website. Executives have previously privately conceded that there is often more information about BBC programmes on third-party websites than on The project has already seen the corporation create more than 160,000 individual web pages over the past three months, with developers looking to create content for shows going back to the 1930s.

FRANCE BLOCKS ONLINE CHILD PORN, TERRORISM, RACISM (, 10 June 2008) - France is joining at least five other countries where Internet service providers block access to child pornography and to content linked to terrorism and racial hatred, the French interior minister said today. The agreement will take effect in September. A blacklist will be compiled based on input from Internet users who flag sites containing offensive material, Interior Minister Michel Alliot-Marie said. All service providers in France have agreed to block offending sites, he said. Offensive sites will be referred to judicial authorities, the minister said. A similar deal was announced Tuesday in New York, where Verizon, Sprint and Time Warner Cable agreed with New York state officials to block access to child porn. Britain, Sweden, Denmark, Norway, Canada and New Zealand are among other countries that have already implemented similar measures.

- and -

ANTI-CHILD-PORN TACTIC CRITICIZED (Washington Post, 11 June 2008) - The decision yesterday by three Internet service providers to block access to online child pornography is the latest in a series of steps by companies and government officials to curb the distribution of such materials. But a report to be published later this month questions whether such actions are making it more difficult to track users. The report, by the Financial Coalition Against Child Pornography, formed by credit card issuers and Internet service providers to cut off funding for these crimes, states that the efforts are pushing child pornographers toward unregulated Web companies that allow anonymity in purchases. “One of the first things that happened when we began shutting down the credit card avenue is that these guys began to look to other ways to get money quickly,” said Ernie Allen, president and chief executive of the National Center for Missing & Exploited Children, based in Alexandria. Many purchasers of child pornography have turned to alternative payment systems to skirt U.S. laws, cyber-crime experts and law enforcement officials said. Unlike traditional banks, these systems allow users to accept and remit payments without revealing their identities.

9TH CIRCUIT’S CHIEF JUDGE POSTED SEXUALLY EXPLICIT MATTER ON HIS WEBSITE (LA Times, 11 June 2008) - One of the highest-ranking federal judges in the United States, who is currently presiding over an obscenity trial in Los Angeles, has maintained his own publicly accessible website featuring sexually explicit photos and videos. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.” Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site. Asked whether the contents of his site should force him to step aside from the pending obscenity trial, Kozinski declined to comment.,0,6220192.story [There’s much more to this story -- see Lessig’s blog:; reports that 3rd Circuit judges will participate in the misconduct investigation:]

LOST IN E-MAIL, TECH FIRMS FACE SELF-MADE BEAST (New York Times, 14 June 2008) - The onslaught of cellphone calls and e-mail and instant messages is fracturing attention spans and hurting productivity. It is a common complaint. But now the very companies that helped create the flood are trying to mop it up. Some of the biggest technology firms, including Microsoft, Intel, Google and I.B.M., are banding together to fight information overload. Last week they formed a nonprofit group to study the problem, publicize it and devise ways to help workers — theirs and others — cope with the digital deluge. Their effort comes as statistical and anecdotal evidence mounts that the same technology tools that have led to improvements in productivity can be counterproductive if overused. The big chip maker Intel found in an eight-month internal study that some employees who were encouraged to limit digital interruptions said they were more productive and creative as a result. Intel and other companies are already experimenting with solutions. Small units at some companies are encouraging workers to check e-mail messages less frequently, to send group messages more judiciously and to avoid letting the drumbeat of digital missives constantly shake up and reorder to-do lists. A Google software engineer last week introduced E-Mail Addict, an experimental feature for the company’s e-mail service that lets people cut themselves off from their in-boxes for 15 minutes. Many people readily recognize that they face — or invite — continual interruption, but the emerging data on the scale of the problem may come as a surprise. A typical information worker who sits at a computer all day turns to his e-mail program more than 50 times and uses instant messaging 77 times, according to one measure by RescueTime, a company that analyzes computer habits. The company, which draws its data from 40,000 people who have tracking software on their computers, found that on average the worker also stops at 40 Web sites over the course of the day. The fractured attention comes at a cost. In the United States, more than $650 billion a year in productivity is lost because of unnecessary interruptions, predominately mundane matters, according to Basex. The firm says that a big chunk of that cost comes from the time it takes people to recover from an interruption and get back to work.

COURT ADDS TO THE CONFUSION OVER INITIAL INTEREST CONFUSION (Steptoe & Johnson’s E-Commerce Law Week, 16 June 2008) - The Seventh, Ninth, Tenth, and Eleventh circuits have held that the use of a competitor’s trademarks in metatags can create a likelihood of confusion capable of supporting a trademark infringement action. But, in Designer Skin, LLC v. S & L Vitamins, Inc., a federal court in Arizona recently ruled that a distributor’s unauthorized use of a manufacturer’s trademarks in metatags and search-engine key words did not cause sufficient initial interest confusion to support a trademark infringement claim where the distributor actually sold the manufacturer’s goods, though without authorization. The court reasoned that the distributor’s use of the marks accurately described the websites’ contents and that there was no evidence the websites had ever appeared “near the top” of search results for the trademarks.

- and -

COURT RULES USE OF TRADEMARKS IN KEYWORD ADS BARS ASSERTION OF FIRST SALE, FAIR USE DEFENSES (BNA’s Internet Law News, 19 June 2008) - BNA’S Electronic Commerce & Law Report reports that a federal court in Wisconsin has ruled that company may proceed with a trademark infringement claim against a company that allegedly resold its products online without authorization and purchased keyword advertisements containing its trademarked terms. The court reasoned that the defendant’s use of keyword ads containing the plaintiff’s trademarks and descriptions of the products on its Web site using terms such as “we” and “our,” could have misled potential customers and precluded its assertion of first sale or nominative fair use defenses. Case name is Standard Process Inc. v. Total Health Disc. Inc.

CREW RESPONDS TO COURT RULING THAT WHITE HOUSE OFFICE OF ADMINISTRATION IS NOT AN AGENCY (CREW, 16 June 2008) - Today, D.C. District Court Judge Colleen Kollar-Kotelly issued an opinion in CREW v. Office of Administration, finding that the Office of Administration (OA) is not an agency subject to the Freedom of Information Act (FOIA). In May 2007, CREW sued OA for records regarding missing White House e-mail and the office’s assessment of the scope of the problem. After initially agreeing to provide records, OA changed course and claimed it was not an agency and, therefore, had no obligation to comply with the FOIA. OA made this claim despite the fact that even the White House’s own website described OA as an agency and included regulations for processing FOIA requests. While acknowledging the question is a close one, Judge Kollar-Kotelly has found that OA is not an agency on the grounds that it does not exercise substantial independent authority. OA has admitted that it functioned as an agency and processed FOIA requests until August 2007. Although CREW filed its FOIA request in April 2007 – four months before OA changed its position – the court found that OA had no duty to respond to CREW’s FOIA request because OA was never an agency in the first place. CREW’s executive director Melanie Sloan said today, “We are disappointed in the ruling and believe the judge reached the wrong legal conclusion. CREW has appealed the decision.” Sloan continued, “The Bush administration is using the legal system to prevent the American people from discovering the truth about the millions of missing White House e-mails. The fact is, until CREW asked for documents pertaining to this problem, the Office of Administration routinely processed FOIA requests.

THE ASSOCIATED PRESS TO SET GUIDELINES FOR USING ITS ARTICLES IN BLOGS (New York Times, 16 June 2008) - The Associated Press, one of the nation’s largest news organizations, said that it will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright. The A.P.’s effort to impose some guidelines on the free-wheeling blogosphere, where extensive quoting and even copying of entire news articles is common, may offer a prominent definition of the important but vague doctrine of “fair use,” which holds that copyright owners cannot ban others from using small bits of their works under some circumstances. Last week, The A.P. took an unusually strict position against quotation of its work, sending a letter to the Drudge Retort asking it to remove seven items that contained quotations from A.P. articles ranging from 39 to 79 words. On Saturday, The A.P. retreated. Jim Kennedy, vice president and strategy director of The A.P., said in an interview that the news organization had decided that its letter to the Drudge Retort was “heavy-handed” and that The A.P. was going to rethink its policies toward bloggers. The quick about-face came, he said, because a number of well-known bloggers started criticizing its policy, claiming it would undercut the active discussion of the news that rages on sites, big and small, across the Internet. But Rogers Cadenhead, the owner of the Drudge Retort and several other Web sites, said the issue goes far beyond one site. “There are millions of people sharing links to news articles on blogs, message boards and sites like Digg. If The A.P. has concerns that go all the way down to one or two sentences of quoting, they need to tell people what they think is legal and where the boundaries are.” On Friday, The A.P. issued a statement defending its action, saying it was going to challenge blog postings containing excerpts of A.P. articles “when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste.” An A.P. spokesman declined Friday to further explain the association’s position. Still, Mr. Kennedy said that the organization has not withdrawn its request that Drudge Retort remove the seven items. And he said that he still believes that it is more appropriate for blogs to use short summaries of A.P. articles rather than direct quotations, even short ones. Even if The A.P. sets standards, bloggers could choose to use more content than its standards permit, and then The A.P. would have to decide whether to take legal action against them. [What with the Belgium threats against Google and this, MIRLN may be skating on thinning ice. See Eric Goldman’s blog on this:]

PRESIDENT AMENDS EXECUTIVE ORDER TO REQUIRE ALL FEDERAL CONTRACTORS TO USE E-VERIFY SYSTEM (Duane Morris advisory, 17 June 2008) - On June 6, 2008, President Bush amended Executive Order 12989 to require all federal contractors, as a condition of any future federal contract, to use the government’s controversial Internet-based electronic employment eligibility verification system (“E-Verify”) to verify the employment eligibility of their workers. The amendment is the first time the federal government has required private employers to use E-Verify to verify the eligibility of its workers, which until now had been made available to employers on a voluntary basis. Although federal contractors will not be required to use E-Verify until a final rule amending E-Verify regulations goes into effect, which could take several months, employers should begin preparing now for the challenges posed by E-Verify.

BLOGGING GETS MORE DANGEROUS AS WORLDWIDE ARRESTS TRIPLE (Computerworld, 17 June 2008) - It’s becoming increasingly dangerous to post blogs in some parts of the world. Various governments continue to step up efforts to crack down on bloggers who expose public corruption and human rights violations, according to a research study released earlier this month. Documented arrests of citizen bloggers -- those not associated with official news organizations -- tripled from 2006 to 2007, according to the World Information Access 2008 Report compiled by the University Of Washington. Iran, China and Egypt accounted for more than half of all the arrests since 2003, according to the report. Philip Howard, an assistant professor at the university and lead author of the report, also noted that not all regimes report arrests of bloggers, so the numbers are likely to be higher than the 65 arrests from 2003 to the beginning of 2008 cited in the report. During the five years covered in the report, citizen bloggers spent a total of 940 months in jail. The average time served was 15 months, with terms ranging from a few hours to eight years, the report noted. The report attributed the jump from 10 arrests in 2006 to 36 in 2007 to bloggers posting opinions on elections in Iran and Egypt, Howard said. The report said that blog posts seeking to organize or explain social protests led to the most arrests, followed by posts said to violate cultural norms and comments about public policy. There were also several cases in which bloggers were arrested after embarrassing senior public officials or exposing corruption, he added. For example, an Iranian blogger was arrested after he obtained documentation and receipts showing the cost of the Iranian president’s security dogs. The receipts showed that the President was classifying his pugs -- a breed not usually associated with personal protection -- as part of his security detail. Report available here:

STUDY SHATTERS MYTHS ON PERSONAL NET USE AT WORK (Washington Post, 18 June 2008) - It’s no secret that people sneak in some personal e-mail and Web surfing when they’re supposed to be working. A new study attempts to shatter perceptions that these Web surfers are just slackers trying to avoid work. In fact, it turns out everyone does it, from senior managers to entry-level employees _ and researchers figure that means management attempts to clamp down on Internet use may be missing the mark. Many legitimate reasons may be at play, speculates R. Kelly Garrett, one of the study’s authors and a communications professor at Ohio State University. For instance, people may use the Web at work to help balance job and life responsibilities; with the personal matters taken care of from work, they can focus on the task at hand. “It’s appropriate to just avoid the knee-jerk response that all personal Internet use is detrimental,” Garrett said. Installing filters to block access to Web sites and e-mail services could backfire by reducing job satisfaction and thus productivity, researchers wrote. The study on “cyberslacking,” based on statistical analyses of responses in a phone survey of 1,024 people during the summer of 2006, was published in the June issue of the CyberPsychology and Behavior journal.

- and -

TEXT-MESSAGE RULING COULD CHANGE CORPORATE POLICIES (AP, 19 June 2008) - Most employees know their bosses are usually within their rights snooping on workers’ e-mail, but text messaging has been in murkier territory. A federal appeals court sought to clarify matters in a ruling Wednesday by distinguishing between electronic communication that employers store on their servers, or pay someone to store, and communication they contract out for. Employers must have either a warrant or the employee’s permission to see messages that aren’t stored by the employer or by someone the employer pays for storage, the court said. The ruling from the 9th U.S. Circuit Court of Appeals in San Francisco, hailed by digital privacy advocates, could create new administrative hurdles for companies to clear before handing out wireless devices. Employers may now need to use more concrete language in their privacy policies and make sure they explicitly assert access to text-messages as well as e-mail, to encompass communications that aren’t under their physical control. To spare lengthy court battles later, written agreements covering employees’ work-issued cell phones, for example, probably should say employers have the right to see all e-mail and text messages their workers send with the devices. Corporate e-mail has typically been stored on a company’s own servers or on server space it pays for, which employers control, according to federal law. Text-messaging has typically been managed by outside providers. The lower court had ruled that employers have access to text messages because they’re stored by the outside contractors, but the 9th Circuit found that the storage was incidental. Greater privacy protections apply, the court said, because employers are paying only for messaging services. It’s not clear, however, how employers should now manage the relationship with an employee who splits the bill for a work-issued cell phone or other message device, a common arrangement. In that case, the employee might be reluctant to give his employer full access to his text messages, since some are presumably personal. “It’s going to highlight for businesses the need to think through, ‘What kind of information do they need? What kind of access do they need to have? And what kind of documentation do they need to have in place to get that access?’” said Joel Reidenberg, a professor at the Fordham University School of Law and an expert on information privacy law. “A ruling like this is going to force companies to be more nuanced and careful in their data management, and that’s a good thing.”;_ylt=AmbzVSZsBVwFnMJ.3PJTxuYE1vAI - see also -

- and -

WALL STREET’S MESSAGING MISTAKES (New York Times, 19 June 2008) - Wall Street got another harsh lesson Thursday in the hazards of e-mail. Ralph Cioffi and Matthew Tannin, two former hedge fund managers at Bear Stearns, were charged Thursday with securities fraud related to their roles in the funds’ collapse a year ago. The indictment relied heavily on e-mail that the two men sent in the months before the meltdown, which prosecutors offered up as evidence that they knew the funds were in trouble even as they told investors there was little to worry about. After the tech bubble burst, authorities got plenty of practice trawling corporate e-mail servers for juicy nuggets. Perhaps the most famous examples are the e-mails from Henry Blodget, who had been a closely watched Internet stock analyst at Merrill Lynch during the boom. Though Mr. Blodget spoke favorably about the prospects of Web start-ups such as, InfoSpace, and eToys, the e-mails uncovered in Mr. Spitzer’s investigation painted a very different picture. Mr. Blodget called InfoSpace a “piece of junk” in one e-mail and used a more earthy abbreviation in another one; here’s a rundown of some of the e-mail exchanges. Even hitting the “send” button on someone else’s bland-sounding e-mail can cause huge headaches. Consider what happened to Frank Quattrone, the technology investment banker who endorsed a colleague’s e-mail instructing colleagues to “clean up those files.” That fateful move led to obstruction of justice charges against Mr. Quattrone, which he fought for years and were eventually dropped. It’s not just e-mails that are landing Wall Streeters (and their firms) in hot water. Instant messaging is known as IM, but it might as well stand for “Incriminate Me,” given how easy it is for authorities to capture the information traders exchange in these online chats. Since IM is like having a conversation, people tend to say things that they would never put in an e-mail, making this kind of communication potentially more dangerous. Federal prosecutors are using instant messages as part of their case against trading dynamo Brian Hunter of the now-defunct hedge fund Amaranth Advisors, as they seeks to show that he was manipulating the energy markets. They produced IMs that have Mr. Hunter saying that he wanted to see some natural gas contracts “get smashed.” Then there’s Paul S. Berliner, a trader formerly of the Schottenfeld Group, who in April was accused of spreading rumors about the then-pending leveraged buyout of Alliance Data Systems, a credit card processor. Among the evidence cited by federal prosecutors were IMs he sent to 31 traders. (Mr. Berliner settled the charges.) Perhaps the highest-profile victim of IM is Jérôme Kerviel, until recently of the French investment bank Société Générale. He has been charged with fraud after losing 4.9 billion euro ($7.6 billion) of the bank’s money. French authorities found 2,000 pages of IMs that proved to be a treasure trove of information in their case against him. “You didn’t say anything about our trades, did you? Otherwise, you’re dead meat,” Mr. Kerviel wrote in one instant message.

MAN BALKS AT ORDER RESTRICTING WEB ACCESS TO OREGON LAWS (The Register-Guard, 19 June 2008) - Oregon’s laws are debated and voted on in the public eye. They tell citizens how fast they can drive, how their taxes are to be paid, and how they are to work out disputes. But do they belong to the public? Or can the Legislature charge $30,000 for an electronic copy of them? The owner of a nonprofit Web site finds himself battling Oregon for the right to put its state laws on the Internet for free. Oregon isn’t alone in challenging efforts to give Web surfers free, one-stop access to state laws; nine other states are asserting a copyright protects their right to put their statutes on the Web — and to charge a license fee for those who wish to do the same, said Carl Malamud, president and CEO of “But Oregon is the first state to send me a cease and desist letter,” said Malamud, who runs the Web site in Sebastopol, Calif. Malamud will appear Thursday before a legislative committee to assert that the Legislature should allow Web sites like his and to post Oregon’s collection of statutes online for free.

JUDGE TAKES HARD LINE IN FIRST ECONOMIC ESPIONAGE SENTENCE (, 19 June 2008) - The government asked Judge Jeremy Fogel to send a message Wednesday on the seriousness of economic espionage, and Fogel obliged. Xiaodong Sheldon Meng, 44, was hit with a 24-month sentence, the maximum under a plea deal in which he admitted possessing night vision software for pilots, material that belonged to Quantum3D, a San Jose, Calif., company. He then used that software to benefit the Chinese government. Meng also admitted breaking American arms export-control laws. With the hearing Wednesday in San Jose, Fogel became the first judge in the country to sentence a defendant convicted under economic espionage statutes since Congress passed them in the 1990s. In a plea for leniency, Manuel Araujo, an assistant federal public defender, argued that Meng was no Chinese agent. His motivation was personal profit, the defense lawyer said. Araujo asked for 12 months of home confinement. But while Fogel noted Meng’s efforts at rehabilitation and his remorse, the judge stressed how important it is to send a message to other would-be thieves of American technology that prison would result. Meng, a Canadian citizen, left Quantum3D at the beginning of 2004 to work for Orad, an Israeli competitor. However, Meng kept some of Quantum3D’s trade secrets on his computer, including a software program called Mantis which he used in a demonstration to Chinese naval officials. Meng altered Quantum3D’s brand to make it seem like the software belonged to Orad, according to the government’s sentencing memo. Federal agents also found different source code material on Meng’s computer that the military uses to train fighter pilots on night visual sensor equipment. This information cannot be exported to China.

SOURCES (inter alia):
1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School,
2. Edupage,
3. SANS Newsbites,
4. NewsScan and Innovation,
5. BNA’s Internet Law News,
6. Crypto-Gram,
7. McGuire Wood’s Technology & Business Articles of Note,
8. Steptoe & Johnson’s E-Commerce Law Week,
9. Readers’ submissions, and the editor’s discoveries.

This work is licensed under the Creative Commons Attribution-Share Alike 3.0 United States License. To view a copy of this license, visit or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA.

PRIVACY NOTICE: E-mail addresses of individuals who subscribe to this periodic e-newsletter by sending email to Vince Polley with “MIRLN” in the subject line are kept by Vince Polley; this listing will not be provided to any other persons.

No comments: