Saturday, December 27, 2008

MIRLN --- 7-27 December 2008 (v11.17)

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ABA CYBERSPACE COMMITTEE WINTER WORKING MEETING - The Committee on Cyberspace Law invites you to its annual Winter Working Meeting, January 30th through the 31st, 2009 on the campus of Santa Clara University in Santa Clara, California (just adjacent to San Jose). Don’t miss this great opportunity to exchange views, explore issues, identify emerging practices and interact with other Committee members. The “WWM” is meant just as much for persons new to the Committee as it is for those of long-standing membership, so please do not hesitate to join us if you are looking for a place and project to get involved with the Committee’s work! Information here:

INTERNETBAR.ORG IS PLEASED TO ANNOUNCE THE RECEIPT OF A GRANT FROM THE AMERICAN BAR ASSOCIATION FUND FOR JUSTICE AND EDUCATION, through the World Justice Project for its Peacetones Initiative. The PeaceTones Initiative addresses the isolation of individuals in conflict zones and zones recently freed from conflict. Prolonged conflict serves as an anchor, holding back populations that are vandalized and deprived of resources, populations living at or below the international poverty line, and populations that are overlooked or exploited by local governments. PeaceTones aims to assist musicians and their communities in conflict and post-conflict zones with access to Internet technology, legal assistance in establishing and maintaining intellectual property rights, alternative dispute resolution assistance to ensure successful ongoing development, and business assistance to bring remote market prices to local developing markets. The legal community’s role in PeaceTones is design and build-out an international legal empowerment network, including a user interface, comprised of lawyers from all over the world who donate their time and expertise to help advise individuals who otherwise would not have access to rule of law due to monetary or location based restriction; The Liberty Alliance, a standards organization with a global membership that provides a holistic approach to identity, is collaborating with the legal community to develop a system of legal assurance for identity within the legal empowerment network. The launch of the legal empowerment network will take place at the Winter Working Meeting of the Cyberspace Law Committee of the ABA Business Law Section from January 30-31, 2009 at Santa Clara University. For more information, see,, and

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OFFSHORE HOSTING FIRM HAVENCO LOST AT SEA (The Register, 25 Nov 2008) - Controversial hosting provider HavenCo - which operated from the ‘nation’ of Sealand, an old naval fort off the coast of Suffolk which was declared a ‘sovereign principality’ by its quirky owner Roy Bates - has finally gone offline. As of last week, the HavenCo website is gone and the domain is now hosted outside the Sealand subnet. Founded in 2000 by Bates’ son and Michael with $1m in seed money, the company initially offered an everything goes-policy along with an offshore fat-pipe data haven. Child pornography, spamming and malicious hacking were strictly prohibited, but with no restrictions on copyright or intellectual property for data hosted on its servers, file-sharing certainly looked like a possibility. Many existing customers had left by 2003. With no investment backing bandwidth never materialised, and the location was vulnerable to DoS attacks. However, what probably scared most potential customers was the fact all internet connectivity went through the UK and that the UK claimed the platform was within its territorial waters. HavenCo was one of many failed business ventures in an attempt to profit from the world’s smallest country. A scheme to build a hotel and gambling complex never materalised. Since last year, the principality has been put up for sale. Last year, Swedish bittorrent search site The Pirate Bay said it was in negotiations with Prince Michael of Sealand about purchasing the principality to use it as a base for its own operations, but Bates declared he would never sell the micronation - currently priced at €750m - to a BitTorrent tracker.

MICHIGAN STATE TO STUDENT: POLITICAL E-MAIL IS SPAM (CNET, 5 Dec 2008) - Most schools encourage students to become active in campus politics. Not Michigan State University, which has filed disciplinary charges against a student leader who sent e-mail criticizing an abbreviated fall semester. Kara Spencer’s encounter with MSU’s disciplinary apparatus started in September, when the student government member began discussing the shortened fall 2009 schedule with a small group of faculty members and administrators. She followed up by contacting 391 faculty members by e-mail, saying that professors should be aware of the “burden for class schedules and syllabi” the change would involve. The e-mail irked a single faculty member, Katherine Gross, who teaches plant biology. Gross complained to the university administrators, who summoned Spencer to a mandatory meeting and informed her that she would face disciplinary charges. A formal letter listing Gross as a “possible witness” to the offense said that the e-mail violated university policies saying that students can use the network only for “authorized purposes.” “Students on campus have been supportive,” Spencer told CNET News. So has the Foundation for Individual Rights in Education, or FIRE, a nonpartisan group in Philadelphia that urged MSU President Lou Anna Simon to halt the disciplinary process in advance of a hearing that was scheduled to take place on Tuesday. It didn’t work: The president rebuffed FIRE and the hearing took place as scheduled.

PROSECUTOR’S BAN ON E-MAIL FROM ADVERSARY TRIGGERS LEGAL SKIRMISH (, 5 Dec 2008) - Lawyers, like the rest of the world, have embraced the ease of electronic communication. With a press of a button or a click of the mouse, they can shoot each other messages and file documents with courts and agencies, more quickly and cheaply than before. So it came as a bit of a shock to Steven Kern to encounter an adversary who refused to communicate with him by e-mail, insisting that any papers he wants to send her be faxed and sent by overnight mail. She went so far as to block his e-mails and, when he sent her a motion by e-mail and regular mail, complained to the judge about him. No, Kern’s adversary is not some elderly barrister who has fallen behind the times technologically. Rather, Siobhan Krier is a [New Jersey] deputy attorney general, admitted to the Bar in 2000, with a computer at her desk that she uses to send e-mail -- just not to opposing counsel. Krier may not be an oddball. David Wald, a spokesman for the Attorney General’s Office, says DAGs and other lawyers there have the option of deciding to forgo e-mail and exchange information “the old way,” by fax, telephone and mail. Wald, however, says, he is not aware of anyone other than Krier who has chosen that option.

PANEL PRESSES TO BOLSTER SECURITY IN CYBERSPACE (New York Times, 8 Dec 2008) - License plates may be coming to cyberspace. A government and technology industry panel on cyber-security is recommending that the federal government end its reliance on passwords and enforce what the industry describes as “strong authentication.” Such an approach would probably mean that all government computer users would have to hold a device to gain access to a network computer or online service. The commission is also encouraging all nongovernmental commercial services use such a device. “We need to move away from passwords,” said Tom Kellermann, vice president for security awareness at Core Security Technologies and a member of the commission that created the report. The report, which offers guidance to the Obama administration, is a strong indictment of government and private industry efforts to secure cyberspace to date. “The laissez-faire approach to cyber-security has failed,” Mr. Kellermann said. Restricting Internet access is one of a series of recommendations that a group of more than 60 government and business computer security specialists will make in a public presentation, “Securing Cyberspace in the 44th Presidency,” on Monday. The report has been prepared during the last 18 months under the auspices of the Center for Strategic and International Studies, a Washington policy group, after a number of break-ins into government computer systems. “The damage from cyber attack is real,” the report states. “Last year, the Departments of Defense, State, Homeland Security, and Commerce, NASA and the National Defense University all suffered major intrusions by unknown foreign entities.” The report describes a laundry list of serious break-ins ranging from the hacking of the secretary of Defense’s unclassified e-mail to the loss of “terabytes” of data at the State Department. The group recommends the creation of a White House cyber-security czar reporting to the president and the consolidation of the powers that have largely been held by the Homeland Security Department under the Bush administration. The report argues that cyber-security is one of the most significant national security threats and that it can no longer be relegated to information technology offices and chief information officers.

PEER-TO-PEER LENDING ALTERNATIVE RUNS INTO REGULATORY WALL (, 9 Dec 2008) - Peer-to-peer lending promised to be an alternative to traditional banks and credit cards for small borrowers. But this fledgling industry, which has been operating freely on the Internet, recently has come into regulators’ sights. Regulators argue that some lending sites essentially are selling investments that need to be registered. This has sidelined the largest peer-to-peer lending site, The timing couldn’t be worse for consumers, with many banks tightening their standards and making it difficult for even some good credit risks to get a loan. But as much of a headache as regulation can be, it might be what the industry needs to take it to a higher level. Regulation can bring greater transparency and protections for investors who provide the money for loans. And if these investors feel more comfortable, they are more likely to pour money into new loans. Peer-to-peer lending is only a few years old. These Internet sites match people who need a loan for, say, $1,000 to $25,000, with dozens or hundreds of strangers willing to lend amounts as small as $50. Lending sites act as the go-between, collecting borrowers’ payments and forwarding them, along with interest, to the various lenders.

LIMEWIRE ADDS PRIVATE FILE SHARING (Wired, 10 Dec 2008) - File sharing doesn’t have to be about indiscriminate trading with anonymous strangers. LimeWire served up a major upgrade to its file sharing client Wednesday with a simpler interface and powerful private sharing features. Using the new version, you could potentially share music with your friends, download NSFW videos from wherever and share photos with your family — all without anyone being the wiser. This may sound risky, but LimeWire’s new sharing features allow a level of control over what you’re sharing with whom that makes it a feasible scenario. You can still use it just like the old version, to share and download from strangers, but the socially networked sharing feature could become the main way many people use the program. The alpha version of LimeWire was made public for Windows, Mac and Linux on Wednesday at around noon. The program installs easily, importing files from your library and letting you search and download music, video, images, documents and other files from the gnutella P2P network. It can also act as your bit torrent client. But the main improvement here is the way it lets you set up easy, private file sharing networks on a file-by-file, user-by-user basis. “I have a 65-year-old mother in Scotland, and the idea of asking her to sign up with Snapfish and to log in, and the upload process, it’s still a very complicated thing for ordinary people,” said LimeWire COO Kevin Bradshaw when he first told us of the plan. “Imagine a situation where she would have an installation of LimeWire ... I could just drop pictures into a folder on my hard drive and they would automatically appear on her drive.” Indeed, the free private sharing feature (instructions below) is the strongest selling point of the new LimeWire. But you can also use it as before to download stuff from strangers and share content with the gnutella network at large. But in it’s default mode, LimeWire is only set to share files you downloaded from the network; all other content in the library must be intentionally shared, either with specific users or the network in general.

SONY SUED FOR COLLECTING DATA ON CHILDREN UNDER 13 (, 10 Dec 2008) - Sony BMG Music Entertainment, the recording company of Justin Timberlake and Bruce Springsteen, has been sued by the U.S. for collecting and disclosing personal data about 30,000 young children without informing their parents. The Federal Trade Commission filed a civil lawsuit Wednesday in Manhattan federal court. The suit, which alleges violations of the Children’s Online Privacy Protection Act, seeks unspecified money damages and an injunction. The FTC claims Sony Music, a Sony unit that operates more than 1,100 music-related Web sites, collected information from more than 30,000 children under age 13 since 2004, despite claiming on its sites that visitors that young wouldn’t be allowed to register. Sony agreed to pay a $1 million fine and hire a compliance officer who will put a screening process in place to prevent the collection of such data, according to two people close to the agreement who declined to be identified. The settlement may be announced as early as today, they said. The sites collected information such as names, addresses, mobile phone numbers, e-mail addresses, dates of birth, ZIP codes, usernames and gender, the FTC said.

CDA SHIELDS WEBSITE FROM LIABILITY FOR SUGGESTING LABELS FOR USERS’ POSTS (Steptoe & Johnson’s E-Commerce Law Week, 11 Dec 2008) - Websites that want to evaluate the legal risks involved in publishing third-party content must consult a veritable library of court rulings interpreting section 230 of the Communications Decency Act. Although section 230 generally immunizes websites from claims stemming from information posted by third parties, websites can lose this immunity if they are responsible, in whole or in part, for the development of the information. But determining whether a website is responsible for the development of information is not so easy, judging by recent court decisions. As we previously reported, the en banc Ninth Circuit ruled this April in Housing Council of San Fernando Valley v., LLC that a company that operated an online roommate matching service could not claim section 230 immunity for allegedly discriminatory profiles created by its members, since it contributed to the development of the profiles by requiring members to choose from a small set of answers to specific profile-creation questions. But, last month, a federal magistrate ruled in GW Equity, LLC, v. Xcentric Ventures, LLC, that section 230 shielded Xcentric Ventures and its manager from liability for providing a list of descriptive phrases that visitors to the defendants’ “Ripoff Report” website used to categorize their allegedly defamatory posts. The judge explained that while the website in Roommate “directly participated in developing the alleged illegality,” the websites in Xcentric Ventures merely presented users with a “broad choice of categories” that were not solely “negative and/or defamatory in nature.”
RESELLING MP3S: THE MUSIC INDUSTRY’S NEW BATTLEGROUND? (CNET, 11 Dec 2008) - A new digital music service is getting lots of attention for proposing to help consumers sell their used MP3s in much the same way people once unloaded second-hand albums. Bopaboo has generated splashy headlines recently for coming up with what on the surface seems like a good idea. Music fans have always exercised their first-sale rights, which under copyright law, allows them to sell their unwanted CDs, tapes, and albums without permission from the copyright owner. Why can’t they do the same with digital music? But there are dramatic differences between physical and digital music. For this reason, Washington, D.C.-based Bopaboo appears to be careening toward a head-on collision with the recording industry. According to Bopaboo CEO Alex Meshkin, he will soon meet with executives from the major labels and execs there will no doubt ask why they shouldn’t set their attorneys loose on the service. They may also inquire about the controversy that dogged a then 23-year-old Meshkin when he was owner of Toyota’s NASCAR team. As for the legal questions involved with MP3 resales, Meshkin, 28, argues that the law allows consumers to sell digital media files in the same way they do physical media. That’s not all together accurate. Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation, an advocacy group that supports Internet-user rights, says to the best of his knowledge, the issue has never been addressed in court. Even von Lohmann, a well-known champion of the technology sector, sees potential problems with Bopaboo’s legal argument. He says while its true that under the first-sale law people are allowed to sell CDs and other physical goods, it hasn’t been established whether the law covers digital media. The good news says von Lohmann is that Bopaboo could raise the public’s awareness about what may one day be an important issue for digital music.

FIRMS PUSH FOR A MORE SEARCHABLE FEDERAL WEB (Washington Post, 11 Dec 2008) - Google’s professed corporate mission is “to organize the world’s information.” But for years, the U.S. government, one of the world’s largest depositories of data, has been unwilling or unable to make millions of its Web pages accessible. “The vast majority of information is still not searchable or findable either because it’s not published or it’s on Web sites which the government has put up which no one can index,” Google chief executive Eric Schmidt said during a recent presentation at the New America Foundation. Now Schmidt has a unique opportunity to change that as an informal adviser to President-elect Barack Obama, a tech booster who dubbed his first Senate law “Google for government” because it aimed to make federal information more accessible. Today, a wide array of public information remains largely invisible to the search engines, and therefore to the general public, because it is held in such a way that the Web search engines of Google, Yahoo and Microsoft can’t find it and index it. Not surprisingly, Yahoo and Microsoft officials agree that people would be better served if more public information became accessible to their search engines. A person using one of the search engines, for example, can’t find Environmental Protection Agency enforcement actions against a given company, can’t discover the picture of a specific ancient Egyptian artifact at the Smithsonian and can’t search by name for the details of a Vietnam War casualty. Needham estimates that 1,000 federal government Web sites are inaccessible to search engine “crawlers,” the programs that are run to discover what information is available on the Web. Much of the inaccessibility stems from the fact that so much federal government data, while public, can be accessed only after users fill out an online form. The search engines’ crawlers generally can’t look into such databases. For example, Google notes that a user seeking details on an Environmental Protection Agency enforcement action against Anheuser-Busch can’t be found by entering a simple search query such as “EPA enforcement Anheuser-Busch.” Instead, a person needs to know to go to a particular EPA enforcement Web site and enter “Anheuser-Busch.” To make those databases visible to search engines would require the federal government to make each item into a Web page and then to provide a list of those Web page addresses to the search engines. Microsoft is working with more than 25 federal agencies to make their Web sites “crawlable” by search engines.

AUSSIE COURT SAYS DEFAULT JUDGMENT CAN BE SERVED ON FACEBOOK (ABA Journal, 15 Dec 2008) - In an apparent first in Australia and, possibly, the world, a judge has OK’d a plan to serve a default judgment on a non-appearing defendant via a social networking website. Although service previously has been allowed by e-mail and text message, a master of the Supreme Court of the Australian Capital Territory has gone a step further into the Internet world by allowing a default judgment to be served on Facebook, reports the Sydney Morning Herald. The court okayed the Facebook approach, a Herald Sun article explains, after all other efforts failed, according to attorney Mark McCormack, who represented the creditor side in the mortgage foreclosure case. “The Facebook profiles showed the defendants’ dates of birth, email addresses and friend lists--and the co-defendants were friends with one another,” he tells the Herald Sun. “This information was enough to satisfy the court that Facebook was a sufficient method of communicating with the defendant.” To convince the court to try Facebook, the plaintiffs had to show that no other method of service would work, and that the Facebook effort was reasonably likely to succeed, he says.

GOOGLE OFF LIST OF 20 MOST TRUSTED COMPANIES (San Francisco Chronicle, 15 Dec 2008) - Facebook, Apple, Yahoo, Verizon and FedEx for the first time have made an annual ranking of the top 20 most trusted companies in the United States. Google, however, dropped off the list, released today by the Ponemon Institute and TRUSTe in San Francisco, as did Countrywide Financial, Bank of America (which acquired Countrywide) and Weight Watchers. Financial companies were tarred by the subprime mortgage crisis and the subsequent meltdown of investment banks on Wall Street, said Dr. Larry Ponemon, who conducted the survey, but not all financial companies were equally hit. Nationwide retained its place as the ninth most trusted company, and U.S. Bank and eLoan managed to stay in the top 20, although both dropped a few places. At No. 1, for the fourth year in a row, was American Express, followed by eBay, IBM, Amazon and Johnson & Johnson. This is the fifth year the survey has been conducted. The Ponemon Institute got 6,500 people - weighted by age, gender and household income to match the U.S. census - to name the five companies they trusted most and least. Concern about privacy is higher than ever, the survey showed. Less than half of consumers - 45 percent - feel they have control over their personal information. That’s down from 48 percent last year and 56 percent in 2006. More than 60 percent said identity theft negatively affects how they think about a company, and more than half get concerned when a company sends notifications of data breaches. “Consumers are getting more astute about” privacy, said Fran Maier, the CEO of TRUSTe, which evaluates online privacy practices. Ponemon said some companies, like IBM, might be trusted because they have big brands; others, like Apple, because consumers like their products.

CRITIQUE OF U.S. PRIVACY RULES (InsideHigherEd, 16 Dec 2008) - The U.S. Education Department’s rewrite of federal rules governing student privacy will “make it much more difficult for journalists and parents to investigate the performance of schools and colleges,” the Student Press Law Center said Monday. The center, which advocates on behalf of student journalists, said the department’s revamped regulations for the Family Educational Rights and Privacy Act, which were released last week, would “greatly expand the definition of what qualifies as a confidential ‘education record’ to include even records with all names, Social Security numbers and other individually identifying information” redacted.

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NEW PRIVACY GUIDELINES FOR E-HEALTH RECORDS ANNOUNCED (CNET, 17 Dec 2008) - The Department of Health and Human Services this week released new privacy guidelines (PDF) for electronic health records, the use of which President-elect Barack Obama has promised to support as part of his plan to jump-start the economy. The use of electronic medical records could reduce costs and medical errors while potentially improving the quality of care patients receive, advocates say, but the level of new privacy standards needed for e-health records has been a matter of debate. “Consumers need an easy-to-read, standard notice about how their personal health information is protected, confidence that those who misuse information will be held accountable, and the ability to choose the degree to which they want to participate in information sharing,” HHS Secretary Mike Leavitt said Monday. The eight principles established in the guidelines are intended to facilitate the adoption of e-health records by providing a consistent approach to questions of privacy and defining the responsibilities of those who have access to e-health records and share them through a network. The principles address issues of patient access; correction of records; openness and transparency; patient choice; limitations to the collection, use, and disclosure of personal health information; data integrity; safeguards; and accountability. The HHS Office for Civil Rights also published new guidance documents explaining how the Health Insurance Portability and Accountability (HIPAA) Act can facilitate the exchange of information through e-records.

MOZILLA FIREFOX 3.05 UPDATES USER RIGHTS (Information Week, 17 Dec 2008) - Mozilla on Tuesday released Firefox 3.05, a browser update that fixes several security issues and offers a few other changes, including a clearer way to communicate to users about their rights. Perhaps the most interesting change in Firefox 3.05 is that it does away with the End User License Agreement (EULA) and replaces it with a “Know Your Rights” info bar that gets loaded when the browser is first installed. The info bar text can be displayed by typing “about:rights” (without quotation marks) into the location/address bar. The many Firefox users who never bother to read legalese won’t care. But the change addresses criticism from the free open source software community that Mozilla was asserting rights through the Firefox EULA that were incompatible with those outlined in the GNU General Public License (GPL), which governs most open source software. The issue was that while the Firefox code was covered by the GPL, Mozilla’s trademarked Firefox name, related artwork, and its proprietary TalkBack crash reporter were not. This raises the possibility of legal entanglements that Mozilla’s partners and users of Firefox were eager to avoid. In September, Mitchell Baker, chairperson of Mozilla, acknowledged in a blog post that “yes, the content of the license agreement is wrong.” She said Mozilla was committed to fixing both the language in question and the presentation of the information. And now it is done. Mike Beltzner, director of Firefox at Mozilla, said in an e-mail that the organization wanted to provide a better user experience and a clearer explanation of users’ rights. “The EULA that we used to use actually said very similar things, but the presentation was less friendly -- you had to ‘accept’ it to continue -- and the language wasn’t easy to read or expressed in terms of what your rights were as a user,” he said. “The new page uses clear language to inform users about what they are allowed to do with our software, which is pretty much anything other than infringe on our trademarks and logos. We also break out the terms and limitations of the software services (such as SafeBrowsing) that we ship with Firefox, including instructions on how users can disable these services.” Beltzner said that while the specific legal rights of users haven’t been altered with this release, the new presentation makes them friendlier and easier to understand, which he characterizes as a change for the better. See also and [A MIRLN reader writes: “Firefox is pointedly rejecting the concept of a click-through upon installation of their software, effective immediately. They view this as ‘killing the EULA’ and replacing it with a ‘know your rights’ statement. [They make] no attempt to force a click or the like. Note that they aren’t seeming to forego a license -- Know Your Rights makes clear they still view their software to be subject to the Mozilla Public License. I’ve just got no idea where that license gets agreed upon.”]

MYST ONLINE GOES OPEN SOURCE, FANS TO MAKE THEIR OWN WORLDS (ArsTechnica, 17 Dec 2008) - When GameTap shut down the servers for MystOnline: UruLive earlier this year, it was a major disappointment for the small, but dedicated, fan base the game had acquired over the years. Those fans will now have a chance to shape the future of the game, as developer Cyan Worlds has announced that the source code for the title will soon be released, giving fans the ability to mold and update the now-open source game as they see fit. “Cyan has decided to... make MystOnline available to the fans by releasing the source code for the servers, client and tools for MystOnline as an open source project,” Cyan Worlds CEO Tony Fryman told Spokane, WA paper Spokesman Review. “We will also host a data server with the data for MystOnline. More is still possible, but only with the help from fans.”

YAHOO OUTDOES GOOGLE, WILL SCRUB SEARCH LOGS AFTER 90 DAYS (ArsTechnica, 17 Dec 2008) - It’s a race to the bottom, but in a good way. Yahoo today announced an “industry-leading approach” to online privacy under which it will anonymize its log data after 90 days. The move comes only months after Google cut its own retention period for personal data by 50 percent, and it gives Yahoo by far the strongest anonymization policy of the big three search engines. The announcement also scored points with Congress. Rep. Ed Markey (D-MA), a powerful voice on tech issues, this morning applauded the company, essentially placing the privacy crown atop its corporate head. “Today, Yahoo voluntarily sets a new standard for such privacy protection, a standard against which Microsoft, Google, and others will now be compared,” he said. “I urge other leading online companies to match or beat the commitments announced by Yahoo.” That’s exactly the message Yahoo wants to convey. In its announcement, the company stressed that it had just made the TRUSTe/Ponemon Institute Top 20 list of “Most Trusted Companies for Privacy.” Yahoo came in 14th after previously being off the list; Google and Microsoft did not make it. Under the new policy, log data can be retained, but IP addresses will be anonymized after 90 days. The data affected isn’t just search logs, either, but “page views, page clicks, ad views, and ad clicks.” Yahoo makes exceptions to the policy for “fraud, security, and legal obligations,” so if any jurisdiction in which it operates passes mandatory data retention laws, the 90-day guarantee is overridden there.

COURT RULES THAT USE OF TRADEMARK IN DOMAIN NAMES IS INFRINGING (Steptoe & Johnson’s E-Commerce Law Week, 18 Dec 2008) - A federal court in Washington State recently ruled that Earthwise Innovations, Inc., infringed upon the trademarks of Suarez Corporation Industries (SCI) by using them in domain names and on websites. Earthwise registered domain names containing SCI’s “edenpure” mark and used websites with these domain names to sell SCI space heaters bearing the marks “edenpure” and “sun-twin.” Although Earthwise was at one time an authorized Internet distributor of SCI’s space heaters, the relationship soured, leading Earthwise to terminate its distribution agreement with SCI. In response, SCI brought trademark infringement claims against Earthwise under the Lanham Act and sought to hold Earthwise liable for registering domain names containing SCI’s marks under the Anticybersquatting Consumer Protection Act (ACPA). The court ruled that Earthwise’s use of the SCI’s marks in domain names and on websites was infringing; however, it denied SCI’s motion for summary judgment on the ACPA claims, since SCI had not established that Earthwise “acted in bad faith” in obtaining and retaining possession of the infringing domain names. As we have previously reported, most courts agree that the use of a competitor’s mark in an Internet domain name is infringing.

MUSIC INDUSTRY DROPS EFFORT TO SUE SONG SWAPPERS (AP, 19 Dec 2008) - The group representing the U.S. recording industry said Friday it has abandoned its policy of suing people for sharing songs protected by copyright and will work with Internet service providers to cut abusers’ access if they ignore repeated warnings. The move ends a controversial program that saw the Recording Industry Association of America sue about 35,000 people since 2003 for swapping songs online. Because of high legal costs for defenders, virtually all of those hit with lawsuits settled, on average for around $3,500. The association’s legal costs, in the meantime, exceeded the settlement money it brought in. The association said Friday that it stopped sending out new lawsuits and warnings in August, and then agreed with several leading U.S. Internet service providers, without naming which ones, to notify alleged illegal file-sharers and cut off service if they failed to stop. It credited the lawsuit campaign with raising awareness of piracy and keeping the number of illegal file-sharers in check while the legal market for digital music took off. With two weeks left in the year, legitimate sales of digital music tracks soared for the first time past the 1 billion mark, up 28 percent over all of last year, according to Nielsen Soundscan. “We’re at a point where there’s a sense of comfort that we can replace one form of deterrent with another form of deterrent,” said RIAA Chairman and Chief Executive Mitch Bainwol. “Filing lawsuits as a strategy to deal with a big problem was not our first choice five years ago.”

JUDGE BACKS STATE, SAYS LOCATIONS OF COMPUTERS ARE OFF LIMITS TO THE AP (Arkansas Democrat Gazette, 19 Dec 2008) - A Pulaski County Circuit judge on Thursday derailed efforts by The Associated Press to determine which state employees changed information about former Gov. Mike Huckabee and other state officials on the Internet encyclopedia Wikipedia. The judge sided with the state’s attorneys who said the information sought by the reporters would jeopardize the security of the state’s computer network. Judge Marion Humphrey concluded a five-hour hearing by ruling that the location of specific state computers is exempt from public disclosure. “It’s kind of a difficult issue that’s presented to the court,” Humphrey said. “For reasons of security, this information should not be obtained under the Arkansas Freedom of Information Act.” The reporters found five Internet protocol addresses for state-owned computers that were used to change the Wikipedia entries, but the state Department of Information Systems, which manages the state’s computer network, rejected their Freedom of Information request to learn which state agency had the computers.

THE INTERNET’S 100 OLDEST DOT-COM DOMAINS (PC World, 21 Dec 2008) - The Internet’s been around in some form for decades. It wasn’t until the mid-80s, though, that the Web as we know it started coming together -- and those precious dot-com domains started getting snatched up. As we finish out the tech-centric year of 2008, we thought we’d take a look back at the Internet’s oldest commercial Web sites -- the ones registered back when chatting about “the Net” was as socially acceptable as wearing Jedi garb into a crowded nightclub. So grab your light sabers, dear friends -- we’re boarding the Millennium Falcon and heading back to a virtual galaxy far, far away. [Editor: Schlumberger was number 75 on May 20, 1987.]

SANTA MUST BE REAL, HE’S ON GOOGLE EARTH (CNET, 23 Dec 2008) - As it has for the past four years, Google will be mapping Santa Claus’ trek from the icy North Pole to rooftops around the globe on Christmas Eve. But this year, good girls and boys can track their gifts via mobile phones and Twitter, too. Starting at 3 a.m. PST on Wednesday, a Google Map with Santa’s current location will be displayed on the NORAD Santa Web site, operated by Google and the North American Aerospace Defense Command. Santa fans can also track his movements in 3D in Google Earth by downloading a special NORAD Tracks Santa KML. iGoogle users can add a NORAD Tracks Santa gadget to their iGoogle page. Google will be displaying high-resolution “Santa Cam” video of the gift-laden airborne sleigh. For locations without video, photos from Panoramio will be displayed in Google Maps. And for the first time, people can track Santa’s journey on mobile phones with Google Maps for Mobile and follow him on Twitter by adding “@noradsanta.” [Editor: the “Santa-CAM” videos are a hoot!]

DATA GOVERNANCE (Technometria; podcast with IBM’s Steven Adler; 56 minutes) - Since data is the raw material of the information economy, it is increasingly important that it is properly controlled by organizations. Data governance is a quality control discipline for assessing, managing, using, improving, monitoring, maintaining, and protecting organizational information. Steven Adler, Program Director of IBM Data Governance, joins Phil and Scott to discuss the increasingly important issue. He first talks about the overall importance of data governance and how organizations must build data accountability. He discusses IBM’s work to protect data as a business priority. He reviews the Data Governance Maturity Model, giving useful details about how organizations can better protect their valuable commodity. [Editor: This is an extremely useful discussion about “Data Governance” systematic methodologies to assess and manage the data-management process. Discusses the evolution of a formal “Data Governance Maturity Model”, benchmarking and self-assessment processes, and integrating data-governance with measurable business objectives. The discussion knits e-policy processes with knowledge-management processes; see related resources here. THREE STARS.]

**** RESOURCES ****
2008 TOP TEN DEVELOPMENTS IN COMPUTER AND TECHNOLOGY LAW (Michael Fleming, Michael McGuire; Oct 2008) - “The Year in Review -- Top 10 Computer & Tech Law Developments for 2008.” From Hannah Montana to Virtual Reality, from Counterfeit Tiffany to Misused Flickr Pictures, computer and technology developments range over a wide and interesting scope.

THE INDISPENSABLE MUSICIAN: BARENBOIM BACKSTAGE (OpenSource, 25 Nov 2008) – 30 minute interview with Daniel Barenboim, ranging from Tristan & Isolde, to Israel and the Palestinians, the Holocaust, and back to Wagner. “Tell me another profession where you know more than yesterday but you have to start from scratch? This is the great privilege of being a musician. It’s exactly that: to combine more and more because you’ll never get to the bottom of it, but you always have the freshness of starting from scratch… There are some pieces I play on the piano that I played when I was 7 years old, you know, I was 66 last week–that is a long time… There are pieces I have played one hundred, two hundred times. Yet when I start, there is nothing there because sound is ephemeral, and therefore you start from scratch.”

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. Eric Goldman’s Technology and Marketing Law Blog,
10. Readers’ submissions, and the editor’s discoveries.

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