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.