Saturday, September 03, 2016

MIRLN --- 14 August - 3 September 2016 (v19.12)

MIRLN --- 14 August - 3 September 2016 (v19.12) --- by Vince Polley and KnowConnect PLLC (supplemented by related Tweets: @vpolley #mirln)

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NEWS | RESOURCES | DIFFERENT | LOOKING BACK | NOTES

The copyright case that should worry all internet providers (WaPo, 12 August 2016) - Will Internet providers have to start cracking down harder on their own customers for suspected copyright infringement? That's one of the big questions being raised in the wake of an obscure court ruling that finds that Cox Communications is liable for the illegal music and movie downloads of its subscribers. Earlier this week, a federal judge said Cox Communications will have to pay a $25 million penalty that a jury had awarded in December to BMG, the music rights company. BMG had been using a third-party company called Rightscorp to monitor the Internet for filesharing activity and notify Internet providers when it found evidence of it. The expectation was that Cox would pass along Rightscorp's notices to consumers. BMG claimed that Cox was dragging its feet and using a variety of technical means to keep the notices from reaching its affected customers. The court ruled in favor of BMG's argument that Cox should be held liable because it not only knew that its users were illegally downloading copyrighted content, it also took actions that contributed to it. The finding that Cox is liable for its customers' piracy should absolutely worry other Internet providers, according to legal analysts at the consumer group Public Knowledge. The precedent raises fresh questions about what else Internet providers may be liable for beyond copyright, for example, and what the risk of litigation could mean for their ability to grow and provide reliable service to their subscribers. It may also lead to greater monitoring and control of individual customers.

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Data Breaches in the Board Room: An update on shareholder claims against directors and officers arising from data breaches ( Hogan Lovells, 15 August 2016) - On 7 July 2016, the Federal District Court for the District of Minnesota dismissed four shareholder derivative lawsuits against the directors and officers of Target Corporation arising out of the company's 2013 data breach. These lawsuits were part of a growing trend that has emerged over the past several years: shareholder derivative cases filed against directors and officers in the wake of a data breach alleging claims for breach of fiduciary duty relating to the breach. We discussed this trend after the dismissal of a similar lawsuit against the directors and officers of Wyndham Worldwide Corporation. In that update, we identified steps directors and officers can take to protect themselves from such lawsuits. The dismissal of the Target derivative action provides additional insights into how directors and officers can address cybersecurity events, both prior to and after a breach. * * * The potential for litigation against directors and officers following data breaches remains a serious concern. However, with the dismissals of the Wyndham and now the Target shareholder litigation, boards of directors and management have examples of concrete actions they can take, both before and after a data breach, to demonstrate their diligence and good faith in addressing this growing area of risk. Such attention will benefit the companies they serve, and in the event of a major breach, will help protect the directors and officers from allegations that they did not do enough to prevent the breach or to investigate it.

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Is projecting a message onto the wall of a building a trespass? A nuisance? (Eugene Volokh, 17 August 2016) - You're running a restaurant - or maybe a mosque or an abortion clinic. Union members stand on a public sidewalk outside the restaurant and project light onto your wall that causes a message to appear on your wall: It says the restaurant got cited for health code violations. Or it says "this business hires scabs." Or anti-Islam protesters project a Muhammad cartoon on the wall, or antiabortion protesters project an image of an aborted fetus. Can you stop this by going to court and getting an injunction, on the theory that the projection onto what is, after all, your wall is a trespass? This issue has come up in at least several recent cases, all involving union speech - but it could equally involve other kinds of protests. The only one I've seen that has yielded written opinions is Int'l Union of Painters & Allied Trades Dist. Council 15 Local 159 v. Great Wash Park, LLC, 2016 WL 4165919 (Nev. Ct. App. July 29) . And one of the opinions is very interesting indeed. * * * Judge Jerome Tao, though, wrote a much longer concurring opinion (in addition to joining the court's opinion) and one that strikes me as very interesting and thoughtful. First, he discussed why this case might be harder than the court's opinion suggests: Virtually all of the "light trespass" cases cited by the parties, and in the court's order, concern the potential trespassory effects of "ambient" light, by which I mean light intended to serve a legitimate ulterior purpose on a nearby property but which incidentally happens to leak or diffuse onto the claimant's property; common examples of this include construction lighting or light reflecting off the screen of a drive-in movie theater. In contrast, this case involves something arguably different: a beam of light specifically and intentionally directed at the Respondents' property and nowhere else that served no purpose other than to intentionally light up the Respondents' building the way the Union wanted. Does this distinction make a difference? It seems to me that it possibly could, and if so then we are presented with a question of first impression, as almost all of the existing case law relates to ambient lighting…. * * *

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LabMD suffers relapse, as FTC condemns its data security practices (Steptoe, 18 August 2016) - Overruling the surprise decision last year of an administrative law judge, the Federal Trade Commission has held that LabMD's data security practices were "unreasonable" and constituted an "unfair" practice in violation of the FTC Act. The action stems from the unauthorized disclosure in 2008 of a file that contained the names, dates of birth, Social Security numbers, and medical and health insurance information of approximately 9,300 LabMD customers on Limewire, a peer-to-peer file sharing program. The FTC found that LabMD "lack[ed] even basic precautions to protect sensitive consumer information." It also found that the disclosure of the file was itself a substantial harm, that the exposure of the information to other unauthorized parties was "likely to cause substantial harm," and that a showing of economic injury to consumers was unnecessary. This is the first data security case actually litigated before the FTC (rather than settled), so the Commission's decision sets a significant precedent.

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Study: Consumers spend 50+ hours per week using a 'screen' (Multichannel, 18 August 2016) - Consumers spend more than 50 hours a week using a "screen" -- whether that's a TV, a PC, tablet or smartphone, The Diffusion Group found in a new study that also factors in data from Nielsen. The firm also found that per-capita use of smartphones has grown to 8.6 hours per week, more than the total amount of time consumers spend watching broadband video (8.2 hours). The average screen time spent on social networks now totals about four hours per week, of which 63% is used on services like Instagram (2.5 hours per week), TDG said, noting that these trends are a key reason why a growing number of programmers and media companies are using social-mobile (SoMo) platforms to deliver video. "Screen time is shifting towards mobile. Mobile usage is shifting towards social networking apps. And social networking apps are shifting towards video. All the trends are lining up in favor of massive growth in SoMo Video over the next decade," Joel Espelien, senior analyst with TDG and author of the report - The Future of Smartphone Video 2016-2025 , said in statement.

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Australia Post details plan to use blockchain for voting (ZDnet, 22 August 2016) - Australia Post is looking to move into the business of running elections, and plans to use the blockchain as a central pillar of its plan. In a submission to the Victorian Electoral Matters Committee , the government-owned postal service said community expectations were driving the push towards digital voting, and it would be looking to put its prior work with blockchain to use. "The emergence of crypto currencies on the technology known as blockchain have highlighted opportunities to repurpose that technology to capture various digital transactions in immutable, distributed and secure ways," Australia Post State Director, Victorian Government and Tasmania, Tim Adamson, said in the submission. "In many ways voting is an ideal use case for blockchain technology application beyond crypto currency." According to Adamson, using the blockchain for voting would allow for a location agnostic, "tamper proof" system that would provide traceability, prevent manipulation, yet allow anonymity, and be resistant to denial of service attacks. Australia Post also detailed how it would handle Australia's preferential system of voting used in parliamentary elections. "We envisage a vote being an electronic transaction whereby a number of voting 'credits' can be 'spent' by the voter to attribute preferences. Permission to vote would be secured through the use of secure digital access keys sent securely to each voter. "A ballot would be cryptographically represented within the blockchain, with each vote linked to the voter through their preference choice stored within the blockchain in a way that anonymises and protects that information from being publically accessible."

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FBI detects breaches against two state voter systems (Reuters, 29 August 2016) - The Federal Bureau of Investigation has found breaches in Illinois and Arizona's voter registration databases and is urging states to increase computer security ahead of the November presidential election, according to a U.S. official familiar with the probe. The official, speaking on condition of anonymity, said on Monday that investigators were also seeking evidence of whether other states may have been targeted. Accessing information in a voter database, much of which is publicly accessible, does not necessarily suggest an effort to manipulate the votes themselves. When registering, voters typically provide their names, home addresses, driver's license or identification numbers, and party affiliations. But U.S. intelligence officials have become increasingly worried that hackers sponsored by Russia or other countries may attempt to disrupt the presidential election. Officials and cyber security experts say recent breaches at the Democratic National Committee and elsewhere in the Democratic Party were likely carried out by people within the Russian government. * * * Only five states - New Jersey, Delaware, Georgia, South Carolina and Louisiana - use electronic voting machines without a paper trail, according to a database maintained by Verified Voting, a non-profit organization that aims to improve vote accuracy and transparency. But several state election boards have rejected assistance from the Department of Homeland Security to secure their voting systems, citing fears of a federal takeover of a state-run system, said Susannah Goodman, director of the voting integrity program at Common Cause, a progressive advocacy organization.

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Two swing states decline DHS security for voting machines (The Hill, 26 August 2016) - Two swing states, Pennsylvania and Georgia, are declining an offer from the Department of Homeland Security (DHS) to scan their voting systems ahead of the 2016 elections. In August, DHS offered to help states thwart potential hacking amid cybersecurity concerns about just how easily a U.S. election could be manipulated. Georgia and Pennsylvania, however, have opted out. Instead, the two states will rely on their own systems to monitor potential election hacking, reports NextGov. Georgia Secretary of State Brian Kemp cited state sovereignty concerns. "The question remains whether the federal government will subvert the Constitution to achieve the goal of federalizing elections under the guise of security," he told Nextgov in an email. "Designating voting systems or any other election system as critical infrastructure would be a vast federal overreach, the cost of which would not equally improve the security of elections in the United States." Pennsylvania, a battleground state , expressed confidence in its own ability to hold a secure election.

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MOOCs and beyond (InsideHigherEd, 22 August 2016) - By now we know that MOOCs are not the final answer . Higher education will not be saved (or destroyed) by these massive open online courses that splashed into everyone's consciousness about three years ago. Yes, they provide some fascinating opportunities for expanding access to higher education, for helping us to rethink how teaching and learning works, and for revitalizing the debate about the role of faculty and the power (or futility) of going to college. But most pundits and educators have moved on to the next shiny new fad. This is a mistake. For underneath and behind the scenes, much progress continues to be made.* In fact, I would suggest that it is only now - after three frustrating years where expectations were raised way too high and subsequently plummeted way too low - are we starting to see the real opportunities. This can be seen in the recent announcement by MIT that one of its popular MOOCs (on philosophy) will introduce "instructor grading." As the press release proclaims, "having a trained philosopher [will] provide individual feedback [which] is crucial to knowing how much of the material was truly understood. That engagement is an essential part of the pedagogical experience - just not one learners from Boston to Bangladesh can typically experience together." This is a fascinating development. By now it is crystal clear that MOOCs cannot be compared to traditional courses. Yes, they may replace and/or supplement existing courses, but they are fundamentally different. And that difference is exactly the kind of interactivity - of engagement, feedback, grading - that is at the heart of the give and take of deep learning in higher education. Without such engagement, MOOCs might as well be (and have been compared to) the correspondence courses of the 1800s or your local public radio or TV station. It's just information transfer; not true knowledge development. * * *

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FBI authorized informants to break the law 22,800 times in 4 years (Daily Dot, 23 August 2016) - Over a four-year period, the FBI authorized informants to break the law more than 22,800 times, according to newly reviewed documents. Official records obtained by the Daily Dot under the Freedom of Information Act ( FOIA ) show the Federal Bureau of Investigation gave informants permission at least 5,649 times in 2013 to engage in activity that would otherwise be considered a crime. In 2014, authorization was given 5,577 times, the records show. USA Today previously revealed confidential informants engaged in "otherwise illegal activity," as the bureau calls it, 5,658 times in 2011. The figure reached 5,939 a year later, according to documents acquired by the Huffington Post. In total, records obtained by reporters confirm the FBI authorized at least 22,823 crimes between 2011 and 2014. (Totals from 2015 were unavailable when the Daily Dot initiated its records request.) Those crimes can have serious and unintended consequences. For example, a Daily Dot investigation found that an FBI informant was responsible for facilitating the 2011 breach of Stratfor in one of the most high-profile cyberattacks of the last decade. While a handful of informants ultimately brought down the principal hacker responsible, the sting also caused Stratfor, an American intelligence firm, millions of dollars in damages and left an estimated 700,000 credit card holders vulnerable to fraud. More recently, in 2013, FBI agents in Louisiana allegedly shot and killed a federal informant , Allen Desdunes, according to court records reviewed by the New Orleans Advocate . Desdunes, 37, reported to the bureau on a daily basis before "reneging on an agreement that had kept him out of jail even after investigators found several thousand dollars worth of heroin in his vehicle," according to the paper. It remains unclear whether Desdunes was permitted to continue dealing drugs while providing the FBI information about his heroin supplier. [ Polley : How does this "permission" actually work? Most of these crimes would be state violations, not federal. Does "permission" work to defeat common-law mens rea , which might be an otherwise required elements of the crime? What happens then in jurisdictions which have gone so "code" that mens rea is not relevant?]

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Sedona conference publishes draft TAR case law primer (Ride the Lightning, 24 August 2016) - The Sedona Conference has published for comment a Draft TAR Case Law Primer , a comprehensive review of court decisions addressing the use of TAR. You will find information on the Da Silva Moore case, in which technology assisted review was first authorized, disputed issues regarding TAR including efforts by requesting parties (and by courts) to compel the use of TAR, cases that address using search terms to cull the document population before applying TAR, cases, and cases involving disclosure of seed/training/validation sets, advance court approval of the use of TAR and international adoption. The conclusion? TAR is an acceptable search and review methodology with unresolved issues. There is also discussion on using TAR to achieve the goals of Federal Rule 1 (the just, speedy, and inexpensive resolution of legal proceedings) and Rule 26(b)(1) (proportionality). Sedona is encouraging public comment on the Primer as an initial step in developing guidelines for principles for the use of advanced search and review technologies in legal proceedings.

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All the ways your Wi-Fi router can spy on you (The Atlantic, 24 August 2016) - City dwellers spend nearly every moment of every day awash in Wi-Fi signals. Homes, streets, businesses, and office buildings are constantly blasting wireless signals every which way for the benefit of nearby phones, tablets, laptops, wearables, and other connected paraphernalia. When those devices connect to a router, they send requests for information-a weather forecast, the latest sports scores, a news article-and, in turn, receive that data, all over the air. As it communicates with the devices, the router is also gathering information about how its signals are traveling through the air, and whether they're being disrupted by obstacles or interference. With that data, the router can make small adjustments to communicate more reliably with the devices it's connected to. But it can also be used to monitor humans-and in surprisingly detailed ways. As people move through a space with a Wi-Fi signal, their bodies affect it, absorbing some waves and reflecting others in various directions. By analyzing the exact ways that a Wi-Fi signal is altered when a human moves through it, researchers can "see" what someone writes with their finger in the air, identify a particular person by the way that they walk, and even read a person's lips with startling accuracy-in some cases even if a router isn't in the same room as the person performing the actions. * * *

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Adwords buys using geographic terms support personal jurisdiction (Eric Goldman, 26 August 2016) - This is a personal jurisdiction case, so I'll get right to the point. If an AdWords advertiser buys keywords that contain geographic terms, the advertiser might face a greater risk of personal jurisdiction in those geographies. It's likely that buying geo-located AdWords ads would also increase that risk, but this case doesn't address that scenario. If you want a little more detail, keep reading. This case is a consumer protection lawsuit against a payday lender, MoneyMutual. The plaintiffs sought personal jurisdiction over the defendant in Minnesota. Among other supporting facts, the plaintiffs alleged that MoneyMutual bought the exact-match keyword phrases "payday loans Minnesota" and "payday loans Minneapolis." MoneyMutual replied that it bought "payday loans [geography]" for lots of different geographies, so this was really a nationwide campaign with multiple local implementations in parallel with each other. The Minnesota Supreme Court doesn't like this argument at all: * * * So the lesson I draw from this: the more your ads are customized to a particular geography, the more likely you'll be liable for personal jurisdiction in that geography. I doubt this will change many advertisers' behaviors, but at least they can and should appreciate those consequences. And if you're a plaintiff trying to reach a remote defendant, your odds of establishing jurisdiction increase if you can show greater geographic scienter by the defendant.

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Former Justice Department lawyer is censured for telling journalist about wiretap program (ABA Journal, 26 August 2016) - A former Justice Department lawyer has been censured for telling a New York Times reporter about the National Security Agency's warrantless wiretap program. The lawyer, Thomas Tamm, was censured (PDF) on Thursday, report the National Law Journal (sub. req.) and the Legal Profession Blog . Tamm had agreed to accept the censure by the District of Columbia Court of Appeals. Mitigating factors included Tamm's cooperation with ethics authorities, his intent to further compliance with the law by disclosing the information. Tamm had told a reporter about the program in a 2004 call from a pay phone. He suspected the program, used to tap overseas phone calls and emails of terrorism suspects, had illegally bypassed the special intelligence court. Tamm is currently a state public defender in Maryland. One of his lawyers, Paul Kemp, told the National Law Journal that the lawyers were "just glad this nightmare is over for him and his family. … The best news is that it's over, and Tom is a hero for having disclosed what he did in the fashion in which he did it."

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Here's the tech NBC built to stream the Olympics - now can it replace TV? (The Verge, 26 August 2016) - For NBC, this year's Olympic Games coverage was more than just a series of household rating points; it was a moment of truth in a fast-changing media world. To say the network won silver in prime-time television ratings would be kind: no matter which article you read, it points out that ratings were down by double digits at different points throughout the games. To say the network took home the gold in streaming video would also be an overstatement: online viewership was up, but the online experience wasn't quite ready to replace the traditional TV experience. That doesn't mean the Olympics went unnoticed: Simone Manuel's groundbreaking swim, Michael Phelps' memeworthy game face, and Usain Bolt's grin as he sprinted past his competitor all made it into national conversations. Katie Ledecky became a national hero, the next great American Olympian. But for a multitude of possible reasons - anything from a late-summer start, tape delays, a multi-channel approach, or the notion that younger audiences might just have their heads stuck in a "Facebook bubble or a Snapchat bubble" as NBCUniversal chief Steve Burke actually predicted - fewer people wanted to watch those moments on regular television. In short, a big shift is happening, one that NBC is acutely aware of now that the Olympics have passed. "We're still learning and experimenting," Mark Lazarus, chairman of NBC Sports Group, said in a phone interview with The Verge while the games were still in progress. "This is still a test across so many platforms, and we're going to be learning some lessons that we're going to be using in the future." That future isn't in four years, though, that future is actually now. And at some point, what NBC streams online might have to be more important than what it broadcasts in prime time. This year's Olympics were a demonstration that the technology works - now the trick is figuring out the best way to use it. * * *

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The American Bar Association should be a champion of open access to law (Lawyerist, 29 August 2016) - Here is the unfortunate way the American Bar Association responded when Wolters Kluwer asked to reprint some of the Model Rules of Professional Conduct in a professional responsibility course book, Ethical Problems In The Practice Of Law : " It is the policy of the ABA and its Center for Professional Responsibility not to permit the reproduction of more than 25% of publications it is selling itself. Moreover, it is the policy of the ABA … not to permit reproduction of the Model Rules without the applicable Comments." In other words, if you want to publish the ethics rules that everyone who takes the Bar Exam is responsible for knowing, you must pay a substantial fee to the ABA. Keep in mind that the reason everyone who takes the Bar Exam is responsible for knowing the model rules is that the ABA includes that requirement its law school accreditation standards . Now the American Bar Association may or may not be in the right as a matter of law (spoiler: probably not ), but it is very much wrong as an example for the profession. n its report on the future of legal services , the ABA Commission on the Future of Legal Services found, among other things, that attempts to introduce technology as a way to solve legal problems are often met with heavy resistance. And hefty price tags from the ABA, it turns out. But there is another obstacle to using technology to increase access to justice: the lack of open access to law. It was a thread running through CodeX , and I've talked about it in-depth with Sarah Glassmeyer and Ed Walters . You can't built great software on top of nothing. Often, you need to incorporate the law, either as law or in the algorithms that power the software. And if you have to pay for the law, you have to charge for the software, which often means you are going to build software for big firms, not for the public. Is the ABA's insistence on licensing the Model Rules the reason we can't close the access-to-justice gap? No. But it sets up the ABA as an obstacle to access, not a champion of access.

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Harvard is digitizing nearly 40 million pages of case law so you can access it online and for free (Bostonomix, 30 August 2016) - Not too long ago, a statement like this spoken in the hushed, hallowed hallways of the Harvard Law School library would have been considered heresy: "I think for court decisions, law books are becoming obsolete and even to some some degree a hindrance." That's Adam Ziegler, and he's no heretic. He's the managing director of the Library Innovation Lab at Harvard. Ziegler is leading a team of legal scholars and digital data workers in the lab's Caselaw Access Project . "We want the law, as expressed in court decisions, to be as widely distributed and as available as possible online to promote access to justice by means of access to legal information," Ziegler said. "But also to spur innovation, to drive new insights from the law that we've never been able to do when the law was relegated to paper." Harvard Law's collection, second only to the one kept by the Library of Congress, includes the civil and criminal case law decisions from every state and federal court. Ziegler and his team estimate that across all 43,000 case law books in the collection, each has an average of about 921 pages. That's nearly 40 million pages that need to be digitized. The law school has so many books that the majority are stored in a vast vault in a hidden hilltop repository in Southborough, out of sight and not very accessible to students and scholars. Ziegler says the oldest decision in Harvard's case law collection dates back to Rhode Island's Court of Trials circa 1647. He wants to extend its future forever. * * *

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NASA opens up its research online for free (TechDirt, 30 August 2016) - Every once in a while, we get some good news out of a government agency. Based on a 2013 directive from the White House, NASA had finally announced early this year that it would be following the NIH model and making its publicly funded research available for free online. With the only caveat being a restriction on research that relates to national security, NASA has made good on plans to publish the rest of this research on Pubspace, its new publicly-facing portal for sharing this research: Care to learn more about 400-foot tsunamis on Mars? Now you can, after Nasa announced it is making all its publicly funded research available online for free. The space agency has set up a new public web portal called Pubspace, where the public can find Nasa-funded research articles on everything from the chances of life on one of Saturn's moons to the effects of space station living on the hair follicles of astronauts. It's a fine sentiment, as well as a wonderful analogous case to point to when discussing other knowledge that should, but currently isn't, freely available to the public. That NASA's research was long hidden entirely, or hidden behind a paywall, was especially egregious, however, given that this research is publicly funded. And, as even better news, this appears to be becoming something of a practice among the scientific community: The move is part of a trend in the worldwide scientific community towards making knowledge more readily available. In May, EU member states agreed on an initiative to try to make all European scientific papers freely available by 2020. In the meantime, you can enjoy Nasa-funded insights into keeping fit in space, the ages of the lunar seas, and much more. Should keep you occupied for the weekend.

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Stupid patent of the month: Elsevier patents online peer review (EFF, 31 August 2016) - On August 30, 2016, the Patent Office issued U.S. Patent No. 9,430,468 , titled; "Online peer review and method." The owner of this patent is none other than Elsevier, the giant academic publisher. When it first applied for the patent, Elsevier sought very broad claims that could have covered a wide range of online peer review. Fortunately, by the time the patent actually issued, its claims had been narrowed significantly. So, as a practical matter, the patent will be difficult to enforce. But we still think the patent is stupid, invalid, and an indictment of the system. Before discussing the patent, it is worth considering why Elsevier might want a government granted monopoly on methods of peer review. Elsevier owns more than 2000 academic journals . It charges huge fees and sometimes imposes bundling requirements whereby universities that want certain high profile journals must buy a package including other publications. Universities , libraries , and researchers are increasingly questioning whether this model makes sense. After all, universities usually pay the salaries of both the researchers that write the papers and of the referees who conduct peer review. Elsevier's business model has been compared to a restaurant where the customers bring the ingredients, do all the cooking, and then get hit with a $10,000 bill. The rise in wariness of Elsevier's business model correlates with the rise in popularity and acceptance of open access publishing. Dozens of universities have adopted open access policies mandating or recommending that researchers make their papers available to the public, either by publishing them in open access journals or by archiving them after publication in institutional repositories. In 2013, President Obama mandated that federally funded research be made available to the public no later than a year after publication, and it's likely that Congress will lock that policy into law . Facing an evolving landscape, Elsevier has sought other ways to reinforce its control of publishing. The company has tried to stop researchers from sharing their own papers in institutional repositories , and entered an endless legal battle with rogue repositories Sci-Hub and LibGen . Again and again, when confronted with the changing face of academic publishing, Elsevier resorts to takedowns and litigation rather than reevaluating or modernizing its business model. * * *

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ILTA tech purchase survey reveals firms' cloud skepticism, cybersecurity spend and AI interest (LetalTechNews, 30 August 2016) - The current legal tech market is defined by cloud skepticism, security and compliance concerns, and growing interest in AI technology, according to the "2016 ILTA/InsideLegal Technology Purchasing Survey" of 175 ILTA member law firms. Slightly more than half (53 percent) of firms increased their technology budgets in 2016, representing a 12 percent rise compared with 2015. Over one-third (38 percent) of respondents noted their budget stayed the same over the year, while 9 percent said they decreased their tech spend in 2016. In addition, 53 percent of respondents said their annual technology spend translated to between $5,000 to $14,000 per attorney, with 17 percent spending less than $5,000 per attorney and 30 percent spending over $14,000 per attorney. As a percentage of their annual revenues, 52 percent of law firms spent between 2 percent to just under 5 percent of revenue on technology, while 19 percent spent less than 2 percent. In addition, 13 percent of firms budgeted between from 5 to 6 percent of their revenues for technology expenditures. Looking ahead, two-thirds (67 percent) of firms said security management was the biggest challenge facing their operations, while 42 percent cited lack of employee training, and around 40 percent cited risk management, email management or information governance. Their concerns and focus were reflected in their purchases. Over the last 12 months, for example, 44 percent purchased cybersecurity software, 40 percent purchased security assessments, and 27 percent spent on security training. While only 24 percent plan to purchase cybersecurity tools over the next year, demand for security assessments over the next 12 months remained level (42 percent), while demand for security training rose to 33 percent.

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If your email account is hacked, you should probably tell opposing counsel (Lawyerist, 1 Sept 2016) - A few years ago, there was an ABA ethics opinion that told lawyers that if they thought their email had been hacked, they needed to warn their client about the risks of sending or receiving email. That seemed like a bit of a theoretical worry, but it turns out that that even something like a run-of-the-mill employment discrimination case can lead to an actual court case and an actual loss of money, rather than chin-stroking ethics hypotheticals. The Legal Profession Blog highlighted a recent decision from the United States District Court for the Eastern District of Virginia enforcing a settlement order in a case where a hacker absconded with the funds that the plaintiff received as a settlement. The takeaway: If your email has been hacked and you're expecting a settlement check, make sure you tell opposing counsel to check directly with you about any emails from you. A Virginia lawyer didn't do that, and the hacker used his email account to direct the settlement funds to an offshore bank account. The money was gone, and his client insisted that the settlement be enforced, which would mean the opposing party paid twice. The court said he had nobody to blame but himself because he knew he had been hacked but didn't tell opposing counsel. In sorting out the case, the court looked at whether opposing counsel behaved reasonably in sending the money in the first case. This was necessary because the defense was that somehow opposing counsel should have known the email was shady. But the hacked email bore all signs of being legitimate and believable: "Perhaps the best and most hilarious reason: 'The content of the email was consistent with [the Virginia lawyer's] error-prone typography.'"

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RESOURCES

Adler on Fair Use and the future of art (MLPB, 23 August 2016) - Amy Adler, New York University School of Law, is publishing Fair Use and the Future of Art in volume 91 of the New York University Law Review (2016). Here is the abstract: Twenty-five years ago, in a seminal article in the Harvard Law Review, Judge Leval changed the course of copyright jurisprudence by introducing the concept of "transformativeness" into fair use law. Soon thereafter, the Supreme Court embraced Judge Leval's new creation, calling the transformative inquiry the "heart of the fair use" doctrine. As Judge Leval conceived it, the purpose of the transformative inquiry was to protect the free speech and creativity interests that fair use should promote by offering greater leeway for creators to build on preexisting works. In short, the transformative standard would ensure that copyright law did not "stifle the very creativity which that law [was] designed to foster." This Article shows that the transformative test has not only failed to accomplish this goal; the test itself has begun to "stifle the very creativity which that law was designed to foster." In the realm of the arts, one of the very areas whose progress copyright law is designed to promote, the transformative standard has become an obstacle to creativity. Artistic expression has emerged as a central fair use battleground in the courts. At the same time that art depends on copying, the transformative test has made the legality of copying in art more uncertain, leaving artists vulnerable to lawsuits under a doctrine that is incoherent and that fundamentally misunderstands the very creative work it governs. The transformative test has failed art. This Article shows why and what to do about it, turning to the art market itself as a possible solution to the failure of the transformative use test.

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DIFFERENT

How technology hijacks people's minds - from a magician and Google's design ethicist (The Startup, 18 May 2016) - I'm an expert on how technology hijacks our psychological vulnerabilities. That's why I spent the last three years as a Design Ethicist at Google caring about how to design things in a way that defends a billion people's minds from getting hijacked. When using technology, we often focus optimistically on all the things it does for us. But I want to show you where it might do the opposite. * * *

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LOOKING BACK - MIRLN TEN YEARS AGO

(note: link-rot has affected about 50% of these original URLs)

NSA might listen to lawyer calls (Wired, 25 March 2006) -- The National Security Agency could have legally monitored ordinarily confidential communications between doctors and patients or attorneys and their clients, the Justice Department said Friday of its controversial warrantless surveillance program. Responding to questions from Congress, the department also said that it sees no prohibition to using information collected under the NSA's program in court. "Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution," the department said in responses to questions from lawmakers released Friday evening.

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French parliament dumping Windows for Linux (CNET, 27 Nov 2006) -- France's gendarmes and Ministry of Culture and Communication have done it, and now members of the country's parliament are about to switch to open source. Starting in June 2007, PCs in French deputes' offices will be equipped with a Linux operating system and open-source productivity software. The project, backed by parliament members Richard Cazenave and Bernard Carayon of the Union for a Popular Movement party, will see 1,154 French parliamentary workstations running on Linux, with OpenOffice.org productivity software, the Firefox Web browser and an open-source e-mail client. http://news.com.com/2100-7344_3-6138372.html [ Polley in 2006 : I've installed Linux and OpenOffice on an old PC, too. It was easy, intuitive (well, as intuitive as Microsoft's stuff anyway), and free. OpenOffice documents seem entirely compatible with Microsoft applications. Polley in 2016 : I haven't used Linux since 2006; wonder how the French Parliament is making out.]

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NOTES

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SOURCES (inter alia):

1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School, http://cyber.law.harvard.edu

2. InsideHigherEd - http://www.insidehighered.com/

3. SANS Newsbites, http://www.sans.org/newsletters/newsbites/

4. Aon's Technology & Professional Risks Newsletter

5. Crypto-Gram, http://www.schneier.com/crypto-gram.html

6. Steptoe & Johnson's E-Commerce Law Week

7. Eric Goldman's Technology and Marketing Law Blog, http://blog.ericgoldman.org/

8. The Benton Foundation's Communications Headlines

9. Gate15 Situational Update Notifications, http://www.gate15.us/services.html

10. Readers' submissions, and the editor's discoveries

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