Tuesday, December 30, 2008
In the view of this ISP, if the RIAA is going to expect ISPs to act as its enforcement arm, then it's reasonable for ISPs to expect to be compensated in return. At some level, this makes sense; courts impose filing fees on plaintiffs, and given that the RIAA's three-strikes policy will shortcut many of the legal procedures that slow enforcement, perhaps it's time for ISPs and the RIAA to agree on a sensible schedule for dealing with enforcement demands.
On the other hand, resisting enforcement until the bill is paid does not appear to be covered by the DMCA. Under the DMCA's Safe-Harbor provisions for ISPs, an ISP that receives proper notice of an alleged infringement is required to "respond expeditiously" to remove or disable access to the offending material. Assuming that the takedown request complies with the level of specificity required by the DMCA, the question is whether an ISP is responding "expeditiously" if it demands compensation before it acts.
Monday, December 29, 2008
M-H has attempted to address both concerns in this blog post, which promises "Big Plans for Martindale-Hubbell Ratings." While admitting, somewhat ambiguously, that its new plans included "a change in the role and responsibilities of the ratings specialists" (which I suppose is one way of describing being laid off -- "I heard you got laid off." "No, my role and responsibilities have changed. I now have no role and no responsibilities.") the post goes on to promise that a changed ratings system is in the works.
I have to join those who have critiqued M-H's post for its unfettered use of marketing jargon-speak to convey little substance about what those changes are and how they will make the M-H service more relevant than other, competing (not to mention free) services. Kevin O'Keefe does a nice job of dissecting the M-H post, and of highlighting its Martin Lukes-like use of marketing-speak to convey more image than substance.
(As an aside, I do miss Martin Lukes terribly. I highly recommend the book he "co-authored" with the Financial Times's Lucy Kellaway, "Who Moved My Blackberry?" for a funny take on slogan-driven management trends.)
That said, while I'm sure that M-H has high hopes for whatever form its ratings system is going to take -- and I wish whoever its new "VP/ Product Champion of Ratings" is all the best -- it will be a serious challenge for M-H to develop a system that is effective, accurate, useful, and worth using.
Tuesday, December 23, 2008
a. collecting a plurality of sheep in a defined area;
b. determining a single direction in which to herd said sheep;
c. positioning at a point approximately 180 degrees from said single direction an image of a wolf of sufficient size to be visible to the most distant of said plurality of sheep;
d. moving said image of a wolf in said single direction in which said plurality of sheep are to be herded
The takeaway here is that when you are using social media for business purposes, don't slack off on the quality of what you contribute.
Friday, December 19, 2008
It is this "no more RIAA lawsuits!" shoe that has been making most of the headlines today. The other shoe, however, remains to be dropped, and we're not talking any little old Muntader al Zeidi size 9 shoe here -- this other shoe could be one of those monster Shaquille O'Neil size 23s.
According to the WSJ, the RIAA is negotiating agreements with Internet service providers to implement some form of a "three strikes" policy. As described in the article, the three strikes policy would work something like this:
The RIAA "will send an email to the provider when it finds a provider's customers making music available online for others to take.
"Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether."
The three strikes enforcement policy avoids all of that expense, delay, and publicity of a court battle. Oh, and due process. That's out too. With copyright law being as nuanced as it is, and far from clear on so many issues, this three strikes policy is more likely to tread on more listeners' legal rights than is the present policy of individual lawsuits. Are ISPs now going to become the arbiters of fair use? Can we really expect them to devote the time and money to decide competently whether an individual listener's downloads were legal or not?
The Electronic Frontier Foundation has a good post discussing these issues in more detail.
Personal pride aside, this is a really good way to sample some blogs that you may not be following.
Thursday, December 18, 2008
Practically speaking, the SIS will probably be commissioned by applicants to be run in a language different than that of the initial search. Initially, only three searching authorities will offer the SIS: Russia, Sweden, and Norway, but WIPO anticipate adding "at least three more" in 2009 and 2010.
While this may seem like a really bad time to be adding an additional expense to foreign patent filings, if used properly the SIS could end up saving applicants money by unearthing prior art for key applications while there is still time to deal with it during prosecution.
This project is called "Magic Table," by Seung Jun Lee. The screen interacts visually and musically to objects that are passed or placed in front of a sensor. I think this would also make a great video wall installation in some public place.
TwiTerra, by Steven Lehrburger, tracks "re-tweets" -- re-transmissions of Twitter messages -- by projecting the approximate location of messages as they are forwarded from one person to another around the world.
Matt Parker's "Face of the Nation" did a nice job of morphing all of the US presidents and the current president-elect into a looped video that's fun to watch.
"Ballet Dancer," by Ramona Pringle and Xue Hou, projects moving images of a ballet dancer against floating layers of gauze and tulle. It reminded me a bit of something a Disney Imagineer would do.
There were two projects that were similar in that they used a library of captured images to create a moving image, kind of like what Chuck Close is known for doing in some of his portraits. One of these is called "membrain," by Yasser Ansari, Peter Horvath, and Bruno Kruse. A video of membrain appears below. The other is "Video Mosaic" by Meredith Hasson. Here is a short video of membrain:
The show runs again tonight, December 18, from 5 to 9 p.m. There will be another one in the spring.
Wednesday, December 17, 2008
Some of the findings include:
-- 75% of companies allow employees to advertise items for sale to their colleagues; DVDs and CDs are the most commonly-sold items.
-- Almost 20% of the managers were aware of counterfeit DVD sales being made at work, with lower-level managers being more aware of such sales than were upper-level managers.
-- Few of the surveyed managers say that their organizations train employees not to download copyrighted material without the copyright owner's permission; 28% report that there is no such training, and 45% say that "employment contracts forbid illegal activity," which is not the same as training.
-- As for business software, roughly half of the managers said that they either did not know how often their organization checked to make sure that all business software was properly licensed, or that such audits occurred "less than once a year."
-- While 99% of managers would turn to the Internet and their human resources departments to educate themselves on their company's rights and responsibilities with regard to copyright and trademark issues, about 40% would ask their lawyers.
-- Nearly three-quarters of those surveyed would find it useful to receive some sort of information about IP issues in the workplace.
For those of us whose careers are deeply intertwined with IP law, these findings can serve as a bit of a wake-up call. Not everybody in business is as sensitized to identifying and managing IP issues as we are. There is still plenty of work to be done . . .
Tuesday, December 16, 2008
Monday, December 15, 2008
If you're thinking of adding Twitter to your personal or firm marketing mix, this concise article provide 16 ways lawyers can use the service to their benefit. Hats off to Robert Ambrogi for the good work.
Friday, December 12, 2008
Here are the tools that strike me as particularly worth talking about:
1. Most of the site ("except where otherwise noted") is published under a Creative Commons Attribution 3.0 License, which permits users to share and adapt the material provided they attribute it to Change.gov. This is probably the highest-profile use of a Creative Commons license to date.
2. A periodically-active "Open for Questions" tool allows individuals to post questions that they would like the transition team to answer. Users can vote on submitted questions, in a Digg-like fashion, a feature that racked up more than 600,000 votes in OfQs first round. The team has promised to respond to some of the "most popular" questions.
The OfQ tool also allows users to "Flag as inappropriate" any question, presumably relying on people's common sense to flag profane or off-topic issues. It appears, however, that the tool was also used to bury questions that were merely "uncomfortable," in particular those that included the name "Blagojevich." It will be interesting to see whether the next iteration of OfQ modifies the "flag" feature.
3. "Your Seat at the Table" promises to publish all materials submitted to the transition team by interested third parties (read "special-interest groups"), which in addition to opening up the lobbying process a bit has probably resulted in a drastic reduction in the volume of written material submitted to this transition team versus what was submitted to previous transition teams. Meetings between interest groups and the transition team are also noted. At the time of this blog entry, the list of submissions runs 22 screen-pages.
Users can both comment on submissions and submit their own documents to be considered in connection with each submission. The entries are searchable, which is helpful given that they appear to be organized chronologically.
4. "Join the Discussion" periodically posts short videos that describe issues, then encourages users to comment. A recent discussion topic was "How is the current economic crisis affecting you?" After comments are received (3,572 in this case) the topic is closed, and the transition team responds.
5. Health care has been identified as an issue of particular concern, because Change.gov gives individuals an opportunity to sign up to host local discussions on health care issues between December 15 and 30. The selected moderators will receive a "a special moderator kit that will give you everything you need to get the discussion going. And Senator Tom Daschle, the leader of the Transition's Health Policy Team, will even choose some discussions to attend in person."
The site also has the usual sort of pages: a blog, a pressroom, an agenda page, a page that encourages people to share their stories and hopes, and a lot more.
The Internet makes this the easiest time in history for individuals to connect with their leaders. It's great to see the new leadership team taking advantage of these tools. The risk, of course, is that peoples' already-high expectations will be heightened even further by this process, and there will be an unpleasant backlash when compromises have to be made for the sake of politics.
Wednesday, December 10, 2008
This appears to be a project that is spearheaded by the Intellectual Property Owners Association. While not an "official" committee in the sense that it is endorsed by a particular court, the resulting instructions are comprehensive and well-thought-out. While any set of jury instructions will ideally be closely tailored to the facts and issues of the case at hand, the draft model set provides a useful review of patent law concepts expressed in a way that is designed to be understood by lay jurors. You can access the proposed instructions here.
If this gathers some steam, it could become a valuable resource for patent professionals. Though titled "Linux Defenders," it doesn't appear to be limited to Linux-based inventions, or even open source ideas. And while it is not paying bounties, like Article One Partners, it is tapping in to the open-source ethos that may prove to be a stronger motivator for contributors than will the uncertain prospect of a future monetary reward.
The examples of Defensive Publications on the website could use some improvement. While they appear to describe how the inventions work, they lack date references, as well as links that would allow a searcher to dig deeper for original source material.
A spin-off service, called "Linux Defenders 911," offers help "[i]f your company is being victimized by any entity seeking to assert its patent portfolio against Linux." If so, you're asked to "please contact us so that we can aid you in your battle with these dark forces."
Monday, December 01, 2008
It would not surprise me to see this verdict overturned, if not by the trial judge, then by the 9th Circuit on appeal.
For an excellent discussion of this case, the court's ruling, and its implications, see this Groklaw entry and the Electronic Frontier Foundation amicus brief cited therein.
Saturday, November 29, 2008
Occasionally, something new would be added to the mix. A broadcast telephone interview with a foreigner trapped in one of the beseiged hotels piqued my interest, so I "Googled" (I know, it's a trademark not a verb) the man, who happened to be an attorney, and up popped his law firm profile page. I did this partly out of curiousity, but partly because I was thinking of sending him an email.
This was someone I had never met. We shared both a profession and an interest in intellectual property law, but that was about it. Why would I send him an email, and just as important from my perspective, why would he want to receive it?
I tried to put myself in his shoes. If I were barricaded in a hotel room, trapped in a hotel that had been overtaken by terrorists, thousands of miles from home or family, would I appreciate receiving words of encouragement from strangers? That sealed it. I composed a short email introducing myself that I thought conveyed some encouraging wishes, and hit "send."
Ten minutes later, a reply. Short, but polite, thanking me for my note and "kind thoughts." From the Blackberry of a man barricaded in a beseiged hotel in Mumbai, to my laptop in a tourist hotel in Sarasota, Florida, a connection. We exchanged several messages over the next two days, my last to him a note of congratulations on his release and wishes for a safe trip home, and his again-polite response of thanks.
What I found even more heartening was to learn that I was far from the only person who felt compelled to reach out to this man. In a post-release interview, he said that he had received thousands of messages from around the world during the days he was barricaded in his room. The interview gave me the distinct impression that those emails provided him with, if not peace of mind, at least a welcome distraction during his days of captivity.
I often hear people complain that the Internet helps to create islands of individuals who communicate with each other via texts, tweets, emails, and blog posts, and that this is diminishing the capacity for real "human" connection. I agree that it can become easy to use electronic communication as a way of avoiding more personal forms of interaction. On the other hand, it can also provide a new avenue for communicating with people in helpful and meaningful ways. It is our responsibility to be open to those opportunities and make the most of them.
Wednesday, November 26, 2008
Twitter allows anyone with a cell phone or Internet connection to broadcast news to an audience -- sometimes an audience of dozens, but for some Twitterers an audience of thousands. Each Twitter account member can forward messages, which can multiply in a cascading effect the impact of important messages.
I took note of Twitter some time ago, but dismissed its utility for anybody other than the critically narcissistic. Fortunately, others were more creative, and have managed to develop Twitter as an effective means to network and communicate.
In the last month we've seen debates about how we can use Twitter as a marketing and network-development tool. Last week those of us who follow Twitter were talking about Shaquille O'Neal using Twitter to reach his fan base. Next week we'll be discussing how Twitter can change the way people learn of breaking and changing news stories.
The issues with citizen journalism -- accuracy and credibility -- are magnified when that journalism is filtered through a 140-character-limited Twitter post. It will be interesting to see how mainstream journalism adapts to the Twitter challenge.
For more on Twitter, see here.
Update: 15 minutes after I submitted this post, a number of Twitter feeds reported that Indian government officials have asked that the Twitter page for Mumbai be shut down, and that people stop submitting Twitter feeds about the emerging situation. Is this an attempt to manage the situation, or control the dissemination of information? Or perhaps a bit of both? (Or likely just a rumor, though the BBC picked it up and ran with it for some hours.)
On Monday, Judge Karas of the Southern District of New York released his opinion granting IBM's motion for an injunction against Apple, preventing Mr. Papermaster from continuing in his new job there. The well-written opinion can be used as a good tutorial on the basics of drafting and enforcing non-compete and non-disclosure agreements.
Mr. Papermaster had executed a non-competition and non-disclosure agreement in 2006 in which he agreed that, for one year following the termination of his employment at IBM, he would not engage in or associate with companies that competed with IBM business units with which Papermaster had worked during the previous two years. The focus of the court's analysis was not so much on the appropriateness of the non-compete agreement -- which the court found to be reasonable in scope -- but on the potential for irreparable harm to IBM if Mr. Papermaster disclosed confidential IBM information and trade secrets in the course of his new employment at Apple. This makes sense because absent a showing of irreparable harm, neither the TRO nor an injunction could issue.
So, without dragging this into too much narrative, here are some bullet points that illustrate the uphill battle that Apple faced in trying to free its new employee from the restrictions of his IBM non-compete agreement:
-- The one-year term of the employment restriction was not deemed to be too onerous, and Mr. Papermaster agreed that that and the other geographic and temporal restrictions were reasonable;
-- Mr. Papermaster acknowledged in the agreement that his position provided him with access to IBM confidential information and trade secrets;
-- He agreed that his services for IBM were "extraordinary, special, and unique;" -- He acknowledged that IBM would suffer irreparable harm if he failed to comply with the noncompetition agreement;
-- The court did not accept Apple's argument that it was not a competitor of IBM's, particularly given industry analyst reports to the contrary and Apple's recent purchase of P.A. Semi, a microchip design company that competes with IBM;
-- Probably to IBM's credit, it had offered Mr. Papermaster a "substantial increase" in compensation to stay at IBM or, alternatively, one year's salary if he would agree not to work at Apple for a year;
-- The court found that there was a "substantial risk" that Mr. Papermaster would invevitably disclose IBM trade secrets if he were to continue in his new position at Apple;
Here it is useful to pause to review the elements that the court applied to the inevitable disclosure analysis:
"(1) the extent to which the new employer is a direct competitor of the former employer; (2) whether the employee's new position is nearly identical to his old one, such that he could not reasonably be expected to fulfill his new job responsibilities without utilizing the trade secrets of his former employer; (3) the extent to which the trade secrets at issue would be valuable to the new employer; and (4) the nature of the industry and its trade secrets."
The court found that Mr. Papermaster had acknowledged possessing IBM trade secrets, and in fact had "worked for years with some of the crown jewels of IBM's technology" and had "been exposed to other sensitive and confidential information" through being a member of the I&VT and TLT groups. Given all of the above, it was "no great leap for the Court to find that Plaintiff has met its burden of showing a likelihood of irreparable harm."
The court did take pains to point out that there was no suggestion that Mr. Papermaster "has intentionally acted dishonorably," and that the harm to IBM was "more likely to derive from inadvertent disclosure of the IBM trade secrets that have defined Mr. Papermaster's long career." It also noted IBM's efforts to retain Mr. Papermaster by increasing his compensation, as well as its offer to pay him during the year he was restricted from working for a competitor.
The court acknowledged Mr. Papermaster's argument that "his offer from Apple represented a once-in-a-lifetime opportunity," but pointed out that he "also must accept the obligation he undertook when he became a top executive at IBM."
1. It pays employers to be realistic when drafting non-compete agreements for key employees. Tailor the agreements to the position.
2. It pays employers to be fair, particularly when faced with an enforcement situation. IBM was not obliged either to offer Mr. Papermaster a raise or to offer to pay him for the one-year period of his non-compete. That it did so carried some weight with the court, and makes this look less like a case of a Corporate Titan trying to push around Just An Employee.
3. Long-term employees are handicapped more by non-competes than are employees who have job-hopped in the past. The court took note that Mr. Papermaster had been employed at IBM for 26 years, meaning that most of what he was bringing to the Apple table was what he had learned while at IBM. Had he worked for several companies during his career, and had his tenure at IBM been substantially shorter, his argument that he would not be disclosing IBM trade secrets would probably have been stronger. Long-term employees who are presented with non-compete agreements should consider this before signing, and may want to try to negotiate their position accordingly.
That said, Cnet has an interesting piece challenging the finding that IBM and Apple compete in the chip market such that it was fair to enjoin Mr. Papermaster from taking on his new position at Apple.
Monday, November 24, 2008
While reading this, I began to wax a bit nostalgic for our bygone "red menace" era. With that out of my system, I hopped on over to the FBI website, where I found some succinct and helpful advice for companies interested in protecting their trade secrets. While designed to combat industrial espionage, these suggestions are helpful even if your business isn't particularly strategical. (I know. Strategic.)
Here it is, from the FBI website, in a nutshell:
How to Protect Your Business from Espionage: 6 steps
1. Recognize there is a real threat.
2. Identify and valuate trade secrets.
3. Implement a definable plan for safeguarding trade secrets.
4. Secure physical trade secrets and limit access to trade secrets.
5. Confine intellectual knowledge.
6. Provide ongoing security training to employees.
This is good advice, espionage threat or no. Though I would not have used "valuate."
Friday, November 21, 2008
BlockShopper apparently included among its transaction listings purchases made by two Jones Day attorneys, and in those two listings linked back to the Jones Day website and included photo images of the two attorneys that the complaint says "are identical to the photographs which appear on the Jones Day web site." BlockShopper's use of the Jones Day marks in its posts, the links back to the Jones Day website, and the use of the two attorney photographs are alleged to "create the false impression that Jones Day is affiliated with and/or approves, sponsors or endorses" BlockShopper's business.
The blogosphere is predictably apoplectic over what is widely viewed as an ill-reasoned, over-aggressive attack by the large law firm against a relatively defenseless adversary. I have not seen any descriptions of the suit that take the position that it was a good idea; you can decide for yourself. Read the amended complaint; and see what SEOmozBlog, CL&P Blog, the Cleveland Plain Dealer, the Citizen Media Law Project, and TechDirt have to say.
[Update: Here's another good discussion from the Technology and Marketing Law Blog.]
Say what you will about the merits. If the case stands for anything, it serves as a reminder that when Big sues Little, Big should be prepared to fight both in and out of court. While Jones Day may have prevailed to date in Federal court, it's clearly taking a beating in the court of public opinion.
Some overly-curious Verizon employees took a peek at President-elect Obama's phone records and have been disciplined by the company as a result. This is yet another example of why it pays to be sceptical when a trusted party promises to keep personal information secure. There is always a way for that information to end up in front of someone who has no reason to see it, and more often than not the guilty party is someone on the inside. The same thing happened with passport records some months back.
Thursday, November 20, 2008
The paper notes that "criminals are increasingly exploiting cross-over points between virtual and real-world economies. It is the failure to recognise the importance of protecting the real-world value locked up i this grey-zone of the economy which is leading to the 'year of online world fraud.'" The paper divides the criminal exploits into three categories: (1) identity theft; (2) taking advantage of flaws in the virtual-world economies ("illegally" duplicating or creating virtual-world objects or wealth); and (3) in-game theft (stealing virtual assets from in-game characters).
The paper makes a number of recommendations, of course, many of which boil down to shining a light on the criminal activity and educating the public about the risks associated with participating in virtual worlds.
As for what it calls "Corporate Virtual Worlds," however, the paper notes that there is very little research on the security of those worlds. It recommends that "enterprise-critical data should not be processed within a virtual world that is not entirely under the company's control and that no client or server beyond a protected local area network, administered by trusted parties, should be used." That's a caution worth considering if your company is considering setting up shop in Second Life or a similar public on-line world.
Here is the press release summarizing the paper. Thanks to The Register for the post on this one.
Wednesday, November 19, 2008
If we take the report as true, then I'm wondering whether those who downloaded the files could argue that, by uploading the files to a public file distribution network, the licensee was impliedly consenting to the downloads that are the focus of the law firm's demand letters.
Seems to me this is kind of like letting your horse out of the barn and then calling the sheriff when you see a stranger in the saddle.
Thanks to Michael Scott for the tweet.
Tuesday, November 18, 2008
It's an interesting approach, but not a new one; BountyQuest did something similar (link is to Internet Archive cache) back in the 2000-2003 timeframe with a reward-driven effort to invalidate, among others, the Amazon one-click patent. BountyQuest didn't revolutionize prior art disclosure, and I'm not going to hold my breath on this one.
Update: Ars Technica is all over this one -- it appears Article One's founder has applied for a patent on some of the techniques used on the site. Now there's some good de-tech-tive work!
The regulations, among the most stringent in the nation, would require any entity holding personal information on Massachusetts residents -- whether located within our outside of Massachusetts -- to, among other things, encrypt records and files containing personal information that will be transmitted over a public network or wirelessly; introduce secure user authentication protocols and other security measures; put in place an information security program, including firewall protection; monitor unauthorized use of their systems; and create an inventory of their systems that maintain defined personal information on Massachusetts residents.
While it is hard to argue with the goals of the regulations, they are an example of the difficulties faced by small and large businesses alike when trying to deal with sometimes conflicting local attempts to legislate computer security.
Monday, November 17, 2008
It will be interesting to see how the ranks of registered patent attorneys dwindle as a result. Also, I wonder how many won't receive the notice because of a failure to keep current contact information on file with the PTO.
Thanks to Dennis Crouch and The Invent Blog for this.
The one that caught my eye is the first on the list: companies may turn to open source or outsourcing to help reduce software development costs.
Both routes are not without risk, of course. If the developers (whether in-house or outsourced) are using open source tools or code to create new software, the company needs to know how that choice could affect the marketability of the resulting product. Outsourcing the development requires careful planning and a strong agreement so that the client can keep control over development costs and timing. Two opportunities for IP counsel to help in ways that truly add value.
Proving that you just can't trust anybody these days. Thanks to Engadget for this one!
Sunday, November 16, 2008
Thanks to Kevin O'Keefe for the heads up, via Twitter.
To which I can only respond, "Well, duh."
Wikipedia and other unverified sources of information do have their places in court. When used for background information, or where the exigencies of the situation do not allow for a more refined exposition of the facts, Wikipedia can be helpful to the court and useful to the outcome. But when you get to the final stages of a lawsuit or a criminal case, where a judge or jury is going to render an ultimate (pending appeal) decision on the merits, then it's time to migrate to traditional, or at least verifiable, sources of information.
I recently defended against a motion for a temporary restraining order in Federal Court where one of the key facts in my favor required me to translate a foreign-language document that I had received only hours before the hearing. Unfortunately, time did not permit me to locate and retain a professional translator who could generate a certified translation of the document. That would have been my preferred method if there had been time. Instead, I used the Google Translate tool, entering the text of the original document and using the tool to generate an English translation.
I was not about to represent to the Court that this document was a definitive, authorized translation, however. So in my declaration I laid out in careful, step-by-step detail exactly how I had produced the translation, so that both my opponent and the Court could reproduce my steps.
The Court accepted my translation for purposes of the motion. Opposing counsel, on the other hand, criticized me severely for using what he considered to be an inaccurate translation of the foreign document. I was comfortable with my position, nevertheless -- I had made no ultimate representation to the Court that the Google translation was the final word, so to speak, on the matter, and because the ruling (which generally favored my clients) was preliminary, the Court had not closed the door on the issue.
The takeaway point is that there is a place for web-based information sources to be used in court disputes. But they need to be used intelligently, and beware the attorney who believes what is on the computer monitor simply because it is on the monitor.
Saturday, November 15, 2008
Sociological commentary aside, what makes Black Friday interesting from a legal perspective is the annual dust-ups between a growing collection of Scrappy Websites on the one side, and Massive Retail Giants on the other, over the unauthorized disclosure of what the Massive Retail Giants are going to selling at Ridiculously Low Prices that Friday morning. Some examples of what's out there are here, here, and here.
The Scrappy Website TechCrunch has posted a fairly typical cease-and-desist letter, this one from a law firm representing Wal-Mart, demanding that TechCrunch take down what is claimed to be a preview of a Sam's Club Black Friday ad that appears on its CrunchGear site.
(The posting of the letter, by the way, is a fairly typical tactic -- the lesson being that if you're going to write a cease-and-desist letter to a Scrappy Website, there's a better than 50-50 chance it's going to end up being posted for all to see. So triple-proofread that letter and try to make sure it doesn't sound too snarky. And you might want to leave off your direct email address and contact numbers.)
The letter presents a good opportunity to review the usual bases of Massive Retail Giant claims against Scrappy Websites that post these scoops. These claims can be summarized as follows:
1. Unauthorized disclosure of trade secrets (i.e., information about what is going to be on sale and what the sale prices will be);
2. Copyright infringement (where the Scrappy Website has posted images of the Black Friday circular)
And just in case the offending Scrappy Website can be considered a "service provider" under the Digital Millennium Copyright Act, the letter includes a DMCA takedown notice that is designed to drain the Scrappy Website's safe harbor. Very thorough.
Of course many of the Scrappy Websites that receive these notices routinely pooh-pooh the Massive Retail Giants' threats, post the cease-and-desist letters, and brazenly continue to display the offending ads. The fans of the Scrappy Websites then fill the sites with nasty commentary poking fun at the Massive Retail Giants for trying to push the Scrappy Websites around. "This information is going to be public anyway," they snort, "so why try to stop it now?"
That's an easy gut-reaction position to take. But there are two sides to any argument, and I can see a couple of legitimate reasons why the Massive Retail Giants are concerned about these early disclosures.
First, some of these early leaks are just wrong. The TechCrunch post is one example. It originally claimed that Wal-Mart was going to be selling a Nintendo Wii package at an extraordinarily attractive price, and it posted a copy of an ad that appeared to back that up. Some days later, however, it issued a correction to the price; the package price may actually be considerably higher (almost double, as a matter of fact). Wal-Mart has a legitimate concern that its customers will see the first (low) price on the TechCrunch website but not the second (high) one, show up on Black Friday expecting to pay the cheaper price, and be disappointed. No retailer likes its customers to be disappointed.
Second, there is no doubt some competitive maneuvering going on here. Each Massive Retail Giant wants to lure as many customers as it can to its stores on Black Friday, and is tailoring its ads as best as it can to accomplish that goal. Leaked ads give the competition both the information and the time to react and devise offers that may be more attractive to consumers. Each consumer can only wait in a single long, winding, dark, cold line, and each Massive Retail Giant wants the longest, windiest, darkest, coldest lines to be the ones in front of its stores.
On the other hand, to protect information as a trade secret it must be treated as a trade secret. If any of these spats ever made their way to court, the Massive Retail Giants would need to show that the information they were claiming to protect had been treated internally and externally as trade secrets, guarded by non-disclosure agreements, locked rooms, and password-protected computer files.
As for the copyright infringement claim, it is frankly hard to argue against that at least from a technical perspective. That said, I wonder whether the Massive Retail Giants have registered any of those advertising fliers with the Copyright Office. Given that they make no money off of the sale of the advertising circulars, statutory damages and the potential for attorneys' fees would probably be the best they could hope for.
Friday, November 14, 2008
A woman has filed for a divorce from her husband after she caught her husband's avatar chatting affectionately with a female avatar in Second Life. The couple had an interesting Second Life history; before they were married in real life, each played the role-playing game, and their avatars (hers was "DJ Laura Skye," his was "Dave Barmy") became partners in the game. That was, until the woman caught the David Barmy having in-game sex with a prostitute avatar. DJ Laura Skye immediately broke up with Dave Barmy, even as the couple stayed together in real life.
Evidently hoping for the best, the woman decided to test the fidelity of her boyfriend's avatar. She retained a virtual private eye named Marke Macdonald to set up a "honeytrap" designed to provide the David Barmy avatar an opportunity to stray again. However, Barmy passed the test with flying colors, speaking warmly of only of DJ Laura Skye all night. As a result, the virtual couple reunited in Second Life, and, incidently, their "meatspace" counterparts married in Cornwall.
A happy ending? Sadly, no; the woman then found the David Barmy character sweet-talking another female character in the Second Life game, and filed for a divorce -- in real life.
Yet another example of virtual world events having real world consequences. I find the use of the virtual P.I. to be particularly interesting.
Thanks to Michael Geist's BNA Internet Law and News feed for the heads-up on this one.
Conceived by Karen Armstrong, an authority on comparative religions, the idea won the TEDPrize, awarded by TED Conferences. The TEDblog has several posts on the project, including one that embeds a video that is being translated and captioned by volunteers using the dotSUB platform.
TED is a wonderful source for short (generally under 20 minute) videos featuring interesting talks by fascinating speakers that I download to my Blackberry for train viewing. And I've done some work with the folks at dotSUB; they have developed a great tool for translating and captioning video content over the Internet.
Thursday, November 13, 2008
But what's this? When I clicked the link I learned that I have to pay to upgrade my account to find out who from my past has been passing me these digital notes. This of course drags me instantly back to the present, where my need for an upgraded Classmates.com account that I have to pay for ranks right up there with my need to buy an electric zither.
Well, my fellow Classmates.com user Anthony Wallace didn't share my fiscal sensibilities -- nothing wrong with that, of course -- but now he alleges that, after he'd paid for his upgraded account in response to one of those enticing emails, NOBODY HAD SIGNED HIS GUESTBOOK! This could mean one of two things: either Mr. Wallace was the hapless victim of the cruel continuation of a high school-era prank, or Classmates.com had unfairly enticed him in to parting with his hard-earned cash for an account upgrade.
Mr. Wallace, as a representative of a putative class of similarly-afflicted potential plaintiffs, has sued Classmates.com and related entities for misrepresentation and other torts.
More here from Wired; a copy of the complaint can be found here.
Wednesday, November 12, 2008
In a decision that competitor Mega Brands, Inc. said was "not only a victory for us, but . . . a victory for all the consumers around the world that have made the Mega Bloks brand the No. 1 pre-school building block," the court noted that "'signs which consist exclusively of … the shape of goods which is necessary to obtain a technical result … shall not be registered." This "precludes registration of any shape consisting exclusively, in its essential characteristics, of the shape of the goods which is technically causal of, and sufficient to obtain, the intended technical result, even if that result can be achieved by other shapes using the same or another technical solution."
Tuesday, November 11, 2008
If you have a Facebook page, beware of odd requests from "friends" that ask you to wire them money. Nigerian scammers are apparently using Trojan-type exploits to steal Facebook passwords and then pose as a friend in need to ask for money.
My two haikus based on other Nigerian "419" schemes follow, with a link to many more (my second one, I'm proud to say, earned a runner-up prize that I never received from The Register. The recognition, of course, is reward enough):
distinguished salutation -
send account number
generous kind sir
of sterling reputation -
help with stranded funds?
Monday, November 10, 2008
The facts read like something that could make its way in to the next season of "The Office." Employer hires ex-con employee out on probation to be a part-time bookkeeper, apparently looking past his conviction on 14 counts of forgery for stealing over $220,000 from an earlier employer. Employee is told that the computers are company property when he starts work, and soon becomes a trusted employee, rising to the level of full-time bookkeeper with broad, finance-related job duties that touch on a wide range of Employer's operations.
Employee also owns his own company, selling used computers and related items. Employer expands employee's duties further to include computers. Employer upgrades computer system and installs a network. Employees log in to the system by entering a common password -- cleverly set to be "password" -- and then their name.
Employer begins purchasing computers from employee, starting with a $1500 tower and then employee's used laptop. The laptop sale was a double score for employee, since he had used his boss's credit card to purchase the laptop originally and then paid the bill with a check that he had employer's system issue. Employee was not entirely self-centered; he did list the laptop as a company asset on the employer's depreciation schedules.
Employee next calls employer's payroll company and gives himself a raise, from about $40,000 per year to $125,000 per year. This, finally, is discovered and employee is sent packing. He leaves the computers behind, which are searched when the police are alerted to employee's creative asset enhancement program.
Employee -- now, again, a defendant -- moves to suppress the evidence of the computer search, claiming that the laptop -- the one he had purchased for himself with company money and then sold back to the company -- belonged to him. He also claims that the $1500 tower computer was his as well.
The bottom line: the employee had "no reasonable expectation of privacy in the personal information stored in his workplace computer." Employer owned the computers, they were kept in the company's offices, the employee was so advised when he started work, the tower was connected to the company network, the laptop contained business software, and other employees had equal access to the computers.
Employees: Know your rights . . . or lack thereof, where personal information and company computers are concerned.
Employers: Secure your systems and be wary of hiring serial fraudsters.
I wrote on this workplace privacy issue some months ago.
Thanks to the e-discovery law blog for this one.
Friday, November 07, 2008
The new study, conducted by Will Page of the MCPS-PRS Alliance and others, argues that "instead of following a Pareto or 'power law' curve," as the Long Tail theory would suggest, "digital song sales follow a classic Log Normal distribution. 80 per cent of the digital inventory sold no copies at all - and the 'head' was far more concentrated than the economists expected."
The analysis of tens of millions of on-line music transactions revealed that 80 percent of the revenues were generated by roughly 52,000 songs, which, as The Register points out, is about the number of songs included in the "typical inventory of a conventional high street record store."
Clients who are building businesses -- or investing in businesses -- that depend on Long Tail assumptions being correct would do well to consider this alternative view.
Thursday, November 06, 2008
Here's a short account of one visitor's trip to Bletchley.
In related news, 26 vintage Enigma machines were found last month in an old army office in Madrid.
A very clever flash-based Enigma simulator lets you code your own secret messages.
Bletchley Park is featured prominently in Neil Stephenson's Cryptonomicon.
The contribution of Bletchley Park extended beyond its role in shortening the war; it is really the birthplace of modern computing. The first programmable, digital, electronic computers -- the Colossus Mark I and II -- were implemented there and used to help decode encrypted German transmissions. Learn more here.
Tuesday, November 04, 2008
Applicants must have filed both in Japan and abroad, and must be able to demonstrate concrete plans to use the invention commercially. There are several other requirements and exclusions. The goal of the process is to further reduce (from the existing Accelerated Examination System) the time that it takes an applicant to receive a first and (if necessary) second examination result. More here.
The USPTO has an Accelerated Examination system; about 40% of the petitions requesting accelerated treatment are granted, but at least early on there were reports that few of the granted petitions resulted in issued patents. There are a number of strings attached to taking advantage of this process. I wrote about this back in 2006. The procedure has not really taken off in the US, so it will be interesting to see how the enhanced Japanese version plays out.
From the Make Blog, via Slashdot, comes the story of Mitch Altman, inventor of one of the most useful devices known to man: the "TV-B-Gone," which is a portable device that will turn off dozens of brands of television sets from many feet away. Great if you are the type of person who likes to anonymously enrage a crowded sports bar just as that overtime field goal kick is midway to the uprights.
Altman patented his idea, but decided to make a kit available to the public and is happy to hear from those who improve his design or modify it in interesting ways.
I discussed something similar recently, in my post about Dr. Johnny Chung Lee and his Nintendo Wii controller ideas. What I haven't considered is what kind of a license would cover the intended grant of rights.
The difference between open-source software and open-source hardware lies in the nature of the rights involved. Open source software (which includes firmware) is grounded in copyright. The copyright -- and the rights associated with the copyright -- arise and exist as of the moment the software is created and fixed in some tangible medium of expression.
Rights to a device, on the other hand, are grounded in patent. The patent is a discretionary award from the sovereign, not a right that exists ab initio. While the inventor can certainly create a document that is called a "license" to a pending patent application, until that patent issues the agreement is really just a contract, enforceable only by its terms (as opposed to being enforceable by way of patent law). Once the patent issues, the license would have both contractual and patent law on its side.
Such a license could make enforcing typical open-source conditions interesting -- what is the tangible analog of freely distributing modified code? Making the modified product design freely available, while still allowing the licensee the right to make and sell the modified product at a profit? And what of the modifications made to the original product? Would the license permit the licensee to patent the improvement, but require it to license the improvement on the same terms as the original?
I'm aware that there have been a few stabs taken at creating open-source hardware licenses, but the ones that I've seen seem to be grounded in copyright -- in particular, focusing on the specifications that are being licensed as opposed to the product itself. And I'm of course aware that many physical products contain a lot of software, without which the products would not operate. So for some products, the software/firmware license may suffice. But I'd love to hear if something that considers the patent issues discussed above has been proposed.
Monday, November 03, 2008
This is a great example of reactive technology. Efforts to stop the spread of proprietary video content over the Internet have had limited success, to put it mildly. Technology such as Auditude's begins with the premise that the content will be distributed, and turns that distribution into a business opportunity.
So go vote, already!
July was the first month in which new ICANN rules went into effect charging domain name owners 20 cents per domain name purchased, whether or not the owners decide to keep the name. Up until July, the charge was refunded for domain names that were "returned" within five days of purchase, which led to the practice known as "tasting" -- buying up a bunch of domain names, testing them for Internet traffic, keeping the ones that were likely to result in ad revenue, and returning the rest.
Tasting is frustrating for those who have a genuine interest in actually using a tasted domain name; if the name is constantly being tasted, it becomes difficult to purchase.
I discussed this in more detail back in February in an article that was published in the New York Law Journal and a few other places, and noted that when a similar charge was levied by the Public Interest Registry, which manages domain names for the .org domain, tasting declined by something on the order of 90%.
In short, ICANN put a serious dent in the problem by adding a small but significant cost component to an activity that was formerly free.
Saturday, November 01, 2008
A few weeks ago, the Lexington (KY) Herald-Leader featured a story about Charlie Kratzer, an associate general counsel at Lexmark, who had decorated the walls of his basement rec room using Sharpies. The results are nothing short of amazing. (Go to the story for a panorama view.)
Friday, October 31, 2008
No. 2, the Tesla Roadster -- an electric car. A barely-there electric car.
No. 3, the Lunar Reconnaissance Orbiter -- still on the ground. Let's see if it orbits and reconnoiters lunarly before we salute it.
No. 4, Hulu.com -- Video! Over the Internet! That Has a Relationship With Time-Warner! What a Concept!
No. 5, the Large Hadron Collider -- it broke. Besides which if it really worked, we'd all be living much closer together. Much, much closer.
No. 7, the Chevy Volt -- a re-jiggered hybrid, not due until 2010 (that is, if GM is still here in 2010).
No. 8, Raytheon's Active Protection System -- sort of a Star Wars defense system, but in the desert. It's still being developed and is by no means ready for the Big Show.
No. 9, the Orbital Internet -- neither orbiting nor Interneting.
Most of these would be better placed in Time's former sister publication, Popular Science, which regularly touts these sorts of developments but generally has the good sense not to call them "inventions" when it's doing so. Perhaps I'm being too snarky, but features like this don't help the average person appreciate what an invention truly is.
Thursday, October 30, 2008
The claim at issue in the case reads as follows:
A method for managing the consumption risk costs of a commodity sold by a commodity provider at a fixed price comprising the steps of:
(a) initiating a series of transactions between said commodity provider and consumers of said commodity wherein said consumers purchase said commodity at a fixed rate based upon historical averages, said fixed rate corresponding to a risk position of said consumer;
(b) identifying market participants for said commodity having a counter-risk position to said consumers; and
(c) initiating a series of transactions between said commodity provider and said market participants at a second fixed rate such that said series of market participant transactions balances the risk position of said series of consumer transactions.
This is not an unusal business-method claim.
The opinion endorses the "machine-or-transformation" test for determining whether method claims are patentable. "A claimed process is surely eligible under §101 if: (1) it is tied to a particular machine or apparatus, or (2) transforms a particular article into a different state or thing." Further, a "claimed process involving a fundamental principle that uses a particular machine or apparatus would not pre-empt uses of the princple that do not also use the specified machine or apparatus in the manner claimed. and a claimed process that transforms a particular article to a specified different state or thing by applying a fundamental principle would not pre-empt the use of the principle to transform any other article, to transform the same article but in a manner not covered by the claim, or to do anything other than transform the specified article." (Pp. 10-11)
Also noted: "even if a claim recites a specific machine or a particular transformation of a specific article, the recited machine or transformation must not constitute mere 'insignificant postsolution activity.'" (Pp. 16-17)
The Freeman-Walter-Abele test ((1) determine whether the claim recites an algorithm within the meaning of Benson; (2) determine whether the algorithm is applied to physical elements or process steps) is "inadequate." (Pp. 18-19)
State Street Bank's "useful, concrete, and tangible result" test is "inadequate." (Pp. 19-20)
The "technological arts" test proposed by some amici is rejected. (P. 21)
"The machine-or-transformation test is a two-branched inquiry; an applicant may show that a process claim satisfies §101 either by showing that his claim is tied to a particular machine, or by showing that his claim transforms an article." The applicant must demonstrate that "the use of a specific machine or transformation of an article must impose meaningful limits on the claims' scope to impart patent-eligibility." In addition, "the involvement of the machine or transformation in the claimed process must not merely be insignificant extra-solution activity." (P. 24)
So, what is an "article" that can be transformed? The opinion notes that the "raw materials of many information-age processes . . . are electronic signals and electronically-manipulated data," and that where business methods are concerned, the manipulations involve "even more abstract constructs such as legal obligations, organizational relationships, and business risks." The opinion punts a bit on this one, noting that "our case law has taken a measured approach to this question, and we see no reason here to expand the boundaries of what constitutes patent-eligible transformations of articles." (P. 25)
That said, "[s]o long as the claimed process is limited to a practical application of a fundamental principle to transform specific data, and the claim is limited to a visual depiction that represents specific physical objects or substances, there is no danger that the scope of the claim would wholly pre-empt all uses of the principle." (P. 26) The simple step of "data-gathering," however, is not sufficient. (Pp. 26-27)
The opinion is very clear about the status of the claim at issue: "Purported transformations or manipulations simply of public or private legal obligations or relationships, business risks, or other such abstractions cannot meet the test because they are not physical objects or substances, and they are not representative of physical objects or substances." (P. 28)
This appeal was heard en banc but was not unanimous; judges Newman, Mayer, and Rader dissented.
More to follow on this one, to be sure.
This calls to mind the 2004 lawsuit filed by California's governer, Arnold Schwarzenegger (actually, by Oak Productions, Inc., the company formed by Gov. Schwarzenegger that owned his publicity rights), against an Ohio company that was marketing a bobble-head doll featuring his likeness.
The suit was later amended to include claims for copyright infringement based on images that appeared on the packaging for the bobble head. That lawsuit ended in a settlement, with the defendant agreeing to modify the bobble-head (to remove the machine gun and ammunition belt) and to donate a substantial portion of the proceeds of sale to Arnold's All Stars, the governer's charity. A nice synopsis of that case is available here.
The California governer appears to have achieved better results than the French president. One reason for this could be California's very strong laws protecting the individual's right of publicity. An interview with William Gallagher, one of the attorneys for the defendants, discusses this in greater detail, and points out the continuing tension between the right of publicity and the First Amendment.
Two points: First, the California case seems to have been settled on reasonable terms given the strength of the governer's legal position. And second, you gotta love a country that recognizes the "right to humor."
Wednesday, October 29, 2008
You may remember the "Wassup?" Budweiser ads from some years back, which featured, well, various men screaming "wassup?" at each other. A simple yet oddly memorable ad campaign. The original cast recently reunited to film a clever two-minute video in favor of the Obama candidacy that's been viewed more than 2 million times on YouTube. As political statements go, by the way, it is extraordinarily understated.
The interesting thing is the story behind the rights to the "Wassup?" idea. Budweiser had nothing to do with the new pro-Obama video; apparently it had only licensed the rights for five years, after which they reverted to Charles Stone III, the director of the original "Wassup?" commercial. You can read more about that in Burt Helm's "Brand New Day" blog for Business Week here.
There are two takeaway points here: First, where entertainment is concerned, much is recycled to take advantage of people's familiarity with the original. Stone was smart (or maybe just lucky) because he can now use the same idea to bring his message to millions, building on the foundation of consumer familiarity that Budweiser paid for. Second, this serves as a reminder to consider carefully what happens to licensed IP at the end of the license term, and how long that term is going to run. Licensees, you may want an option to extend a license that is successful; and licensors, you may want the ability to renegotiate the terms in such a case.
-- Google will not be printing books nor, apparently, offering downloads to consumers, at least of books that are still protected by copyright (it will continue to offer downloads of public domain books). Instead, a "Consumer Purchase" will permit one to "view, copy/paste and print pages of a Book," with a four-page limit on the copy/paste and a twenty-page limit on the print features. Note that "download" is not among the permitted activities, so consumers will need an active Internet connection to read what they purchase. Printed pages will include both a "visible watermark" that will identify the printed material as copyrighted and will also include encrypted "session identifying information" that is to help identify the user who printed the material. (4.2(a))
Comment: This could be an issue going forward. While electronic book readers are growing in popularity, part of that popularity lies in the ability to use them in places where Internet access is limited (planes, beaches, subways, I-80 through most of the country). The settlement does leave open the possibility that the parties could agree to other distribution methods in the future. But clearly, the publishers aren't interested in handing their core business over to Google.
-- Rightsholders can either specify the price they want Google to charge for access, or allow a yet-to-be-developed-by-Google algorithm that will automatically set the book price (called the "Settlement Controlled Price"). The Settlement Controlled Price algorithm will place the book in one of twelve preset fixed prices for books (called "bins") that begin at $1.99 and end with $29.99. The algorithm will distribute the Settlement Controlled Price books among those twelve bins according to a set percentage books per bin (i.e., 5% of the books Google offers for Consumer Purchase go in to the $1.99 bin; 8% in the $14.99 bin, etc.). 46% of the books so priced are to be available from bins that are priced from $2.99 to $5.99. (4.2(c))
Comment: The concept of a Settlement Controlled Price algorithm is a very "Googly" feature that I'm sure somebody in Google Labs is already digging into. The algorithm is to be designed "to find the optimal . . . price for each Book and, accordingly, to maximize revenue for each Rightsholder." It will be interesting to see whether Google ends up patenting this, or elects to keep it a trade secret. If it works, it could end up being its own profit center, with Google renting out a modified version of the SCP algorithm tailored for regular publishing.
-- The Registry will receive 70% of "Net Purchase Revenues" and "Net Advertising Revenues" from Google. "Net" comes after Google subtracts 10% from the gross revenues to cover its operating expenses. So for every dollar Google grosses from Purchases and Advertising, the Registry receives 63 cents. ([1.00 - .10] x .7 = .63).
Comment: So Google will have to generate about $340 million in purchase and ad revenues to earn back its $125 million investment in this settlement, which doesn't consider those 10% "operating expenses."
-- I'm a bit confused by this one: In 3.10(c)(iii), Google is prohibited from displaying "on, behind or over the contents of a Book or portion thereof," including Preview Use pages, "any pop-up, pop-under, or any other types of advertisements or content of any kind." That said, 3.14 then permits Google to "display advertisements on Preview Use pages and other Online Book Pages." If I figure it out I will update this.
-- Google has some rights to add hyperlinks to book texts: it can link from one part of a book to another part of the same book; it can link from the book to an "online version of an external source cited" in a footnote, endnote, or biliography; and it can link to a URL that is included in the book text. (3.10(c))
-- Provided the Rightsholder does not object, Google can enable a "Book Annotation" feature that will allow users to make notes associated with the book for the user's personal use, and to share those notes with a limited number of other users. (3.10(c)).
Comment: The Book Annotation feature could be great for collaborative endeavors such as research projects, study groups, book clubs, and cellularly-distributed underground radical organizations bent on Ending Civilization as We Know It. I'm sure the NSA is on it, though, so no worries there.
This settlement has been meticulously crafted; it is a very impressive document, and reflects what must have been an enormous amount of work and a shared willingness to come to a creative solution among all of the parties involved.