Drones and Privacy Rights

February 15, 2013

By Jay Wolman

Shameless plug:  I appeared on Fox 25 Boston last night discussing issues relating to privacy rights and personal use drones that take surveillance video.

Link to the article, with video, is here: http://www.myfoxboston.com/story/21202581/2013/02/14/privacy-concerns-rise-as-personal-drone-market-expands

And a companion piece I wrote: http://www.bostonbusinesslitigation.com/technology/unmanned-drones-and-the-right-to-privacy/


UK judge allows service via Facebook

March 8, 2012

Facebook users in the UK might start thinking twice before accepting friend requests from people they absolutely don’t know. An English High Court judge allowed two lawyers to serve a defendant they had been unable to contact in person or via email through Facebook. Source. Although courts in Canada, Australia, and New Zealand have used the social networking site (as well as Twitter) to serve individuals, the United States has not yet jumped on that legal bandwagon.

In the United States, generally, service of process is not permitted even via e-mail, although it can be done by e-mail with permission under Fed. R. Civ. P. 4.

Facebook isn’t exactly known for its privacy protection. However, it’s also not that hard to make a fake account, either. A few of my Facebook friends have set up accounts for their dogs, and it’s not all that hard to change your name on Facebook. Users just have to click something verifying the name displayed is, in fact, their legal name.

As with all things technological, with the increased ease of use comes a decreased form of security and surety. Although service of process via social media would make some things easier, it is also harder to verify a person’s identity. Also, it’s not always easy to figure out how regularly someone checks a social networking account.

A number of ethical issues arise as well, such as how a person could be served without deception. Presumably, some of us don’t just randomly approve friends, so getting in the position to serve a person via Facebook could be difficult.


News Flash Update: Counterfeit Goods Come From China

November 8, 2011

Guess what? 1,800 cases of  electronic parts from China were sold to the Pentagon for their fancy high-end weapons systems! Neat-O! But made in China? Are we sure that’s safe? Psha- no big deal-people buy stuff made in China all the time.

Aw shucks, did I mention the parts were counterfeit? Source 1. Source 2.

Ask a teenager where to get counterfeit sunglasses and handbags and crap like that and she’ll tell you. Shoot, I can tell you. Go to Chinatown. Any Chinatown. In any city. But it took the  Senate Armed Forced Committee months to figure this one out.

Riddle me this: How come our elected officials only care about counterfeiting when it comes to profit margins of high fashion power houses and finding new and creative ways to treat the USPTO like a cash cow?  How-in-the-name-of-all-that’s-holy did someone not verify if the chips for a fracking missile defense system were the real thing?

I wonder if they got tipped off about this by finding a shiny bomb casing filled with used pin-ball machine parts?


Data Encryption and the Fifth Amendment

July 17, 2011

By J. DeVoy

If you have encrypted data that is seized during an investigation, and law enforcement officers are incapable of decrypting it, can you refuse to provide the codes to remove encryption?  The Electronic Frontier Foundation (“EFF”) believes so, and recently submitted an amicus brief to that effect in U.S. v. Fricosu, Case No. 2:10-cr-00509-01-REB (D. Colo.) (hey, cool, I’m admitted there! – Ed.).

Here’s a summary of the case from EFF’s press release:

Ramona Fricosu[] is accused of fraudulent real estate transactions. During the investigation, the government seized an encrypted laptop from the home she shares with her family, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data. But EFF told the court today that the demand is contrary to the Constitution, forcing Fricosu to become a witness against herself.

The theory is that decrypting a computer is itself a testimonial act: It represents that the defendant had control or access to the computer, and possibly the files within.  Even on a shared computer, providing a decryption code can be damning evidence.  The EFF contends that forcing someone to decrypt their computer forces them to choose between lying, contempt of court, and self-implication – the exact situation the Fifth Amendment is supposed to prevent.

This is a very interesting case, and I can support it to some extent.  I would disagree with the EFF if it claimed that forced decryption was problematic in civil cases, where the Fifth Amendment is little more than an abstraction, since the opposing party is not the state’s prosecutorial arm.  So, torrenters, take note: This is not for you – unless you get charged with criminal copyright infringement.  That’s pretty uncommon in and of itself, too, so you’re really screwed if that happens.

Read the EFF’s full amicus brief here.

H/T: Will


9th Circuit: Consumer Sophistication is an important determinant for AdWord bidding cases

March 10, 2011

by Jason Fischer

For some time now, it has been a legal gray area whether bidding on a competitor’s trademarks as Google AdWords constituted infringement.  Google has taken a neutral stance on the matter, only removing ads that actually make use of the mark in ad copy and directing unhappy trademark owners to take their dispute to a court of law for resolution.  Finally, some of these cases are bubbling up through the federal court system and providing some precedent and guidance.

The latest such decision comes out of the 9th Circuit and involves two software developers who sell licenses to high-end task management applications for businesses.  Software Company A decided that it would be a good marketing strategy to bid on Software Company B’s trademark as an AdWord with Google and Bing, providing a “Sponsored Link” to Company A’s product for users who entered the trademark as a search term.  Obviously, Company B was none too happy about the practice and sued Company A claiming trademark infringement and successfully obtained a preliminary injunction.

On appeal, Company A argued that presenting a “Sponsored Link” for its product to potential purchasers who searched for Company B’s product name would not cause any consumer confusion.  As you can imagine, a link to Company B’s product would appear in the very same search results, alongside the link to Company A’s product, but Company A contended that potential purchasers were savvy enough that no one would be confused or tricked into thinking that Company A’s product was sold by Company B, or vice versa.

In agreeing with Company A’s position, the appeals court noted that licenses for the software at issue were sold for up to $10,000 and more — indicating that the searching parties were more likely to be careful in their purchasing decision, doing research which would eliminate or significantly reduce the likelihood of confusion.  The court also noted that the type of purchasers for these software products are more likely to be expert users of the Internet, who understand how keyword marketing works with search engines, which would also reduce the likelihood of confusion.

You can read the Judge Wardlaw’s full opinion here, if you’re interested in a more thorough discussion.

This decision, in IMHO, serves as a helpful reminder that there are more than a few factors that attorneys either ignore or tend to dismiss in determining likelihood of confusion, and as a result end up trying to enforce their clients’ marks beyond the rights actually afforded.  Comparative advertising is not only legal in the U.S., but preferred, and use of your competitors trademark is not always an actionable event.


Google to Internet Users: “All Your Angry Comments Are Belong to Us”

December 7, 2010

by Jason Fischer

Google, allegedly in an effort to improve the civility of user comments, has determined that the “caps lock” key should not be a part of laptops that will be made to support its forthcoming operating system.  (source)


9th Circuit Allows Copyright Holders’ Rights To Go On… and On… and On…

September 11, 2010

By J. DeVoy

On September 10, 2010, the Ninth Circuit Court of Appeals ruled that software producers can forbid the transfer or resale of their products in their shrink-wrap or click-wrap licenses.  The court’s opinion in the case, Vernor v. Autodesk, Inc., No. 09-35969 (9th Cir. 2010), is available here.

The decision deals a blow to the first sale doctrine that Eric Cartman would best describe as a “kick in the nuts.”  Under the first sale doctrine, established in Bobbs-Merrill Company v. Straus, 210 U.S. 339 (1908), and codified in 1976 as 17 U.S.C. § 109, a purchaser can transfer a lawfully made copy of the copyrighted work without permission once it has been obtained.  As long as the purchaser makes no unauthorized copies of the work, the copyright holder’s rights in a particular copy of the work end once it has been sold.

Vernor essentially exempts software makers from this rule.  Vernor, a frequent user of eBay, had sold more than 10,000 items using the site, including software.  In April 2007, Vernor purchased four used copies of Autodesk’s AutoCAD software, then in its 14th Release.  When Vernor attempted to sell this software on eBay, Autodesk sent DMCA takedown notices to the auction site.  For the first three notices, Vernor filed counternotices, alerting eBay that the sales were not copyright infringement, and eBay reinstated the auctions.  After Autodesk’s fourth DMCA notice, eBay suspended Vernor’s account due to fears of repeat infringement.  eBay feared that if it did not terminate Vernor’s account for repeat infringement, it would vitiate eBay’s safe harbor protections for copyright infringement under 17 U.S.C. § 512(c).

At the heart of the debate lies the distinction between a purchaser and a licensee.  While the firs purchase doctrine protects purchasers, it doesn’t offer its protections to licensees.  The trial court found Vernor’s actions to be protected under the first sale doctrine, as it evaluated Autodesk’s license agreement and Vernor’s actions under United States v. Wise, 550 F.2d 1180 (9th Cir. 1977).  Under Wise, the court determines whether a software user has a license or ownership based upon “1) whether the agreement was labeled a license, and 2) whether the copyright owner retained title to the copy, required its return or destruction, forbade its duplication, or required the transferee to maintain possession of the copy for the agreement’s duration.” Id. at 1190-92.  In light of this precedent, which predated other relevant cases, the trial court found that based on the facts and other circumstances surrounding Vernor’s acquisition of the software, he was a purchaser and, thus, protected by the first purchase doctrine.

That ruling, however, was predicated on the trial court’s perception that Wise was incompatible with the MAI trio of cases decided over a decade after Wise.  See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993); Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330 (9th Cir. 1995); Wall Data, Inc. v. Los Angeles County Sheriff’s Dep’t, 447 F.3d 769 (9th Cir. 2006).  Those cases dealt with software owners making copies of software as an essential step in the use of software — a development intended to prevent owners from being liable for infringement every time their software was used and a full copy was loaded into their random access memory, or RAM. See 17 U.S.C. § 117(a)(1).  The conclusion of these cases is that only outright owners of software are entitled to use the essential step defense, but that licensees are not, as the creation of a full copy of the software violates the copyright holder’s right of reproduction.  In these cases, the distinction between owners and licensees was determined by the restrictiveness of the software’s license agreement; the more restrictive the agreement, the more likely the court was to find it a license and not a sale.

Reversing the trial court and synthesizing the circuit’s precedents, the Ninth Circuit held that a software user is a licensee rather than an owner of a copy where the copyright owner 1) specifies that the user is granted a license, 2) significantly restricts the user’s ability to transfer the software, and 3) imposes notable use restrictions.  The court found that Autodesk’s end user license agreement satisfied all of these conditions, as does presumably most professional grade software — the Software & Information Industry Association, with members including McAfee, Adobe, Oracle and Google, urged the court to rule as it did.

Consequently, Vernor did not own the software, and could not transfer it freely to his customers.  In turn, those customers could not become owners of the software by buying it from Vernor.  Instead, they would be infringers on Autodesk’s right of reproduction because they lacked the company’s license to install and use its software.

The decision then goes on to consider the economic realities of its decision.  It is true that allowing licenses that restrict transfers of the work theoretically eliminate deadweight loss, and allow the producer to slice the market into various price points it can target with ease.  As Guy A. Rub notes in his article Contracting Around Copyright, though, this his not necessarily a good thing: The ability to provide limited access on the low end of the market provides an incentive – and justification – for making people who require unlimited access to overpay for it.  This is avoidable with the first sale doctrine because everyone pays the same price for a product, and transferability is affected only by what puts into the product.  Therefore, different products must be put onto the market at different price points in order to engage in price discrimination so long as the first purchase doctrine applies; if it can be avoided, as the Ninth Circuit indicates it can be in this most recent decision, there is less incentive for creation.  Under this regime, producers are rewarded for slowly creating a large, bloated product for which they can overcharge consumers who need all of the product’s features, all while offering neutered versions to price sensitive consumers who require less functionality.

This is a great proposition if you’re a producer and have a dominant product like the Adobe Creative Suite, but comes at the expense of a secondary market and competition from businesses that may offer a lower-cost product targeted at a market segment with needs less intense than those at the top of the market.  As previously noted on this blog, this is a damaging proposition for consumers, whose software purchases will always have an invisible tether back to the original copyright holder and never truly be theirs for purposes of ownership and resale.

The opinion notes that it is superficially at odds with other Circuits’ handling of this issue, but the competing decisions seem to be distinguishable.  On one hand, the Ninth Circuit is the Supreme Court’s problem child and most oft-overturned court, but generally for reasons other than copyright law.  As home to much of the country’s entertainment and technology businesses, the Ninth Circuit, and more specifically California’s courts, have the most to say about these issues and frequently have the opportunity to speak first.

How the first sale doctrine’s tension with expanded copyright licensing and licensor rights will be resolved is yet to be seen.  The interests of consumers and producers are at odds, as they usually are, but the consequences of this dispute are much more significant than most people would imagine.  In the mind of the consumer, buying software means it’s theirs, to do whatever lawful activity they desired with it, which until now included selling it.  To the benefit of producers, that seems to be changing, and may not be limited to software for very long.


Synth Porn

September 5, 2010

By J. DeVoy

Readers interested in electronic music and the technology behind it will love this:

Subconscious studios, spearheaded by Cevin Key, has been remarkably prolific.  The studio’s equipment created one of the most influential bands of the last 40 years, Skinny Puppy, and collectively is worth more than an upper-middle class home in many areas of the country.


Suck it, El Jobso

July 26, 2010

by Jason Fischer

steve-jobs-wtfA while back, attorneys for Apple concocted a creative argument for why jailbreaking your iPhone constituted an infringement of the copyrights in the device’s software, based on the anit-circumvention provisions of the Digital Millennium Copyright Act (more familiarly known as the “DMCA”).  The Library of Congress (as the body that promulgates regulations for enforcement of the Copyright Act) has today proposed an exemption to liability that specifically puts the kibosh on Apple’s legal theory.


This article was originally posted on The Tactical IP Blog


NASA photographs reveal extent of BP oil leak

June 3, 2010

By J. DeVoy

Discussing the environment normally isn’t our schtick, but technology is another matter.  NASA’s imaging technology has captured the following images of the growing Gulf spill, helping those not in the region get a sense of the slick’s scope and significance.

Of course, that’s just oil visible from the surface.  The leak is a mile underwater where intense pressure and cold temperatures create unusual environments for many molecules.  British Petroleum’s first attempt to cap the spill failed because gases piped to the gulf floor crystallized into solids, causing unforeseen problems and ultimately thwarting that plan.

For the same reasons, oil has been trapped in massive plumes beneath the water’s surface — something that defies conventional wisdom, as oil is lighter than water.  In this case it’s not just oil, though, as the crude is rising up with mud and other substances.  The resulting underwater clouds of oil are massive, with one measured at six miles across by 22 miles long.  And, naturally, this crisis is being discovered and unearthed by advanced, highly sensitive underwater sensors.


What Apple Should Have Launched Instead of the iPad (Or why Apple should beg for help from Kyocera)

April 11, 2010

The Kyocera 6035 with Stowaway Keyboard


Okay, fine, the iPad is neat. I’m not even going to bash it here. But, if Apple really wanted a killer device, it would have launched my idea — the iPhone power keyboard.

Lets face it, the two worst things about the iPhone are a) its “virtual keyboard” and b) its shitty battery life. If Apple could solve those problems, the iPhone might become a netbook killer.

I’m really not suggesting anything radical. Back in 2001, I had a Kyocera 6035 — one of the first smart phones. It ran on the Palm OS, was the size of a shoe, had a battery that would last for a week, and used the only input system worse than the Apple virtual keyboard — the stylus and shorthand stroke “graffiti” system. Accordingly, while the 6035 was awesome for its ability to keep me email connected, I found that I would usually just call the person back, or receive an email and then run to a computer to reply.

Ah… but enter the fold up keyboard.

Stowaway made a keyboard that folded in fourths, was about four inches square, and gave you a full QWERTY keyboard, with as much (if not better) tactile response as a modern Apple chiclet keyboard. Not only that, the device came with a little stand connector, so your 6035 stood up straight when you had the keyboard attached. For most trips, I just stopped carrying my laptop – as the 6035 and the stowaway did the job. Sure the phone was ridiculously large, the web browsing was primitive at best (but so were websites at the time), and the connection speed was super slow. But, I could look at my phone, check my email, and then if I had to do a long reply (or even draft a longer document), I could just open my briefcase, unfold the keyboard, pop the 6035 into the thing, and bust it out. The battery, as I said, lasted forever. But, you could also pop open the back and swap out the battery, so I always carried two batteries in my briefcase along with the keyboard.

In 2004, Kyocera came out with a color version of the 6035 – the 7135. This gave us a brighter (color) screen and an SD expansion card slot. Unfortunately, the battery life left a little to be desired, but since Kyocera kept the user-changeable battery thing, I just bought three batteries. I can’t remember ever needing to use the third, but I’m paranoid about loss of power. To round out the perfection, my Stowaway keyboard worked with it, once I paid $15 for an adapter cable.

I won’t even bother to bitch about the fact that Apple won’t let you change your own battery. That complaint clearly will never resonate at a tone that Apple can hear, and would require a complete redesign of the iPhone. But, what about the keyboard?

There has been plenty of bitching for a bluetooth keyboard. Ryan Faas says that Bluetooth keyboard support for the iPhone would be a “game changer.”

I call bullshit.

Why in the name of the FSM would anyone want a bluetooth keyboard for their iPhone? Yeah, that would be awesome. The iPhone already sucks more energy than a vampire girlfriend who hates her father and just ran out of prozac. Now these wide-rimmed glasses wearing 120 lb hipster idiots want to turn on the bluetooth in the iPhone, adding to its power suckage, and then also carry around another device with — you guessed it, more batteries?

Stupid.

What would be better? Go find Kyocera and Stowaway and ask them for help. Imagine a Stowaway keyboard, with a goddamned WIRE and a STAND (so the iPhone is FACING you when you type, not lying flat on the table. That would be cool enough, but imagine this…. since you’re carrying a keyboard anyhow, why not make the keyboard with a battery port.

Wait, didn’t I just complain about carrying more batteries?

Yeah, I did… but see in MY keyboard, the batteries would be there to CHARGE THE iPhone while you work! And, the thing might even come with a battery eliminator plug that would … wait for it… use a connector that you ALREADY HAVE, like the iPhone cable.

If we had that, I could probably get by without my laptop on at least 75% of my business trips. What would that mean? No more taking the laptop out of the carrying case for the TSAtards, elimination of another couple of pounds of stuff, maybe even eliminating the need to take an overhead bin on a plane!

And of course, while Apple is at it, maybe they could ask Kyocera how they managed to put an expansion card slot in the 7135.


Online “dating” catches on among newlyweds

April 8, 2010

By J. DeVoy

Via Roissy (I don’t care what he’s calling himself these days), Ashley Madison – the online dating service specializing in matching married men and married women – has had a membership explosion in the Toronto area.

Sexually frustrated and a little lonely, the 25-year-old started Googling “sex club” and “swingers club” before stumbling upon AshleyMadison.com, advertised as a “discreet dating service” for people in relationships. Like most Torontonians, Susan, who did not want her real name used, heard about it before.

Three months and more than a 1,000 profiles later, she sat at the bar at a Hooters restaurant with Michael, a 23-year-old with a 31-year-old wife. “He understood where I was coming from and we had the same expectations,” she says. After about two hours, they got a hotel room.

That was what she was really looking for.

First: A 23-year-old guy is married to a 31-year-old and boffing a 25-year-old.  Let that sink in for a moment, especially when considering that the normal dynamic of gender relations pairs younger women with older men.  But, the real story here is that women are signing up and actually using this online “dating” service.  Often, female profiles on online dating services are computer-generated, which normally is disclosed in the site’s privacy policy.  Famously, Match.com was sued for paying people to send e-mails and go on dates with members.  That doesn’t seem to be a problem with Ashley Madison.

According to Ashley Madison statistics, the number of Toronto-area female newlyweds on their site has skyrocketed in the past year. In March 2009, there were 3,184 women who had been married for three years or less actively using the service. A year later, there were 12,442.

Not bad, but not a guarantee that the users are attractive.  The secret to this success, according to the site’s CEO, is marketing.

Since he founded the service in 2001, it was clear to CEO Noel Biderman that attracting men would be easy. But he and his team thought their female clients would be desperate housewives or dedicated mistresses looking for “lifestyles and fun and sex and gifts.” They deliberately targeted women with everything from the name of the brand to the colour scheme of its advertising was designed to attract aspiring female cheaters.

They soon realized they had overlooked a robust and active demographic: “These were young women who, from their self-description … were only married a year or two and seemed to really be questioning the institution, their next step, entering into parenthood, staying with that partner,” Biderman says.

A skeptical eye may still be warranted.  As noted, there’s no representation as to the attractiveness of the site’s users.  There may also be the issue of user fatigue, where a large number of people register, don’t find what they’re looking for and never return, but don’t delete their accounts.  Statistics about users who have logged in within the last 30 days may be more informative than gross enrollment numbers.  Still, even if only slick public relations, the numbers bandied about in the article are impressive.


Sex robots lurch closer to reality

March 31, 2010

By J. DeVoy

AEBN will debut its RealTouch device to the general public in April, at Adultcon.  Though simulating the sexual experience of adult actors is not a high-concept conquest, the technological barriers surrounding it are substantial.  RealTouch sounds to be much more sophisticated than a mere oscillating vibrator.

RealTouch simulates the authentic warmth moistness and relative motion of the exact sexual encounter in a video on demand clip the user is watching on his computer screen.

It also gives men virtually the same sensations adult movie actors experience in their films.

This technology is just one of many others that, when united, will adequately replicate the sexual experience for many men.  As Ferdinand Bardamu notes in his review of Mass Effect 2, computer-generated graphics have come far enough to blur the lines between the real and the digital, a critical component in making sex robot and virtual eroticism technology viable.  Combining this with the tactile aspects of RealTouch and realistic figures such as Roxxxy or Real Dolls, actual sex will become obsolete for those who feel the costs of procuring it far exceed the benefits.

When that day comes, the social fallout will be catastrophic.


Cybersecurity bill gives executive branch new powers over the internet

February 27, 2010

By J. DeVoy

From The Hill:

The president would have the power to safeguard essential federal and private Web resources under draft Senate cybersecurity legislation.

According to an aide familiar with the proposal, the bill includes a mandate for federal agencies to prepare emergency response plans in the event of a massive, nationwide cyberattack.

The president would then have the ability to initiate those network contingency plans to ensure key federal or private services did not go offline during a cyberattack of unprecedented scope, the aide said. 

Despite the predictable outcry from libertarians (SOSHULISM!), this seems like a reasonable proposal.  Without such plans, the risk of a cyber-Katrina seem markedly higher.  Granted, the plan may not work, but at least one exists if there’s ever a need for it.

In reality, this is a specific response to a heightened threat by China.  The White House has been a target of its internet attacks, as was Google.  For readers who have full security software suites on their computers, viewing the frequency and number of pings your network ports have receive from China may be shocking.  But, simultaneously, it may be foolish to assume our government doesn’t do the same thing.


Finally! Is explicit content coming to the iPhone?

February 26, 2010

By J. DeVoy

From the Telegraph:

Several developers have reported seeing a new category appearing in the drop-down menus of iTunes Connect, the platform they use to distribute apps through the App Store. Alongside standard categories, such as “entertainment”, “games” and “productivity”, is a new tag: “explicit”.

Apple has not commented on the rumours, or confirmed whether or not it will be adding an explicit category to the App Store. Some developers are now reporting that this category has been removed from iTunes Connect lists

The screenshot tells the story.

Rumoured explicit category for App Store

This will be a step forward for Apple if it comes to fruition.  Recently, the company caused a small uproar for pulling an adult application from its iTunes Store.  Moreover, this would be a significant change from Apple’s recent position against adult content in the iTunes Store, which was flimsy to begin with:

When asked about the Swimsuit Edition app, Phil said, “The difference is this is a well-known company with previously published material available broadly in a well-accepted format.”

Oh, so recognized brands like Hustler and Vivid don’t meet that threshold?  My bad.


Follow

Get every new post delivered to your Inbox.

Join 2,612 other followers