Where did 2003 go? It seems like just yesterday was the middle of the summer, and now we’re on the doorstep of 2004. While I sit around and wait for OS X 10.3 (Panther) to finish installing on my laptop, I can revew some of my favorite posts from this past year, in no particular order:
Songs:

• Evidence Hokey Pokey
• Contract for our love

Best open offer:

• Your Logo Here (There are still many opportunites for sponsoring AndrewRaff.com! Right now, I’m looking to fill the Official Summer Employer spot I have open.)

Photos:

• Apples
• A nice day
• Washington, DC
• Blackout

Photos of NY landmarks celebrating notable anniversaries:

• Central Park’s 150th
• Brooklyn Bridge turns 120

Relatively substantive analysis:

• Vote NO on Question 3
• Spam and the Spamming Spammers who Spam Us
• Spam Sucks
• Dollars, Cents & Downloads
• Fun with Jurisdiction Online

Best Movie Criticism:

• One Word Review of The Matrix Revolutions

Best post where I acknowledge that I own Meco’s <a href"http://www.amazon.com/exec/obidos/ASIN/B00000J2TO/andrewraffcom">Star Wars and Other Galactic Funk:

• On the Record

Fun with Numbers:

• There’s one for you, nineteen for me
• Skiing is Safer
• Tuition
• Working hours

Two favorite uncategorized posts:

• Do you want to work with this guy?
• Tenet takes the blame

This year in review isn’t quite as much fun as my 2002 year in review, probably because I posted links off on their own this year and did not include them in this review. Feel free to review the 1466 Linky links I posted since March.
I’ll be back next week. Have a happy new year.

Unexpected twists in Internet law

Done!

Senators Wyden and Burns: Why we’ve finally canned spam

In the end, fighting spam is going to require a multipronged approach. It will require improved technology, which is why we welcome the recent announcement that Yahoo is working on technology to authenticate the source of e-mails. Greater cross-border cooperation is needed, which is why we joined three U.K. Parliament members to urge our respective governments to engage in bilateral cooperation on spam enforcement. Of course, kingpin spammers must also face tough criminal and civil penalties, which is why we proudly co-authored the Can-Spam Act.

Since I have plenty of better things to do, I added some new images to the page header rotation here on AndrewRaff.com.

Here are all of the new ones, linked to the original, full-size photo:

Boston.com: Judge says Internet company can send pop-ups for now

A federal judge ruled Monday that a California company can send ”pop-up” Internet ads that regulators have called ”high-tech extortion” at least until the matter is decided at trial.
U.S. District Judge Andre Davis said there was insufficient evidence for him to grant a preliminary injunction sought by the Federal Trade Commission. Regulators wanted to stop San Diego-based D-Squared Solutions LLC from selling its ad-blocking software.

Canada Copyright Board decides that downloading from p2p is legal (although uploading is not): Copying for Private Use: Decision and Levy Rates.
News.com: Canada deems P2P downloading legal

News.com: Virginia files felony spam charges

Virginia Attorney General Jerry Kilgore announced Thursday that his office had made its first felony indictment under the state’s antispam law.

You put the evidence in
you take the hearsay out
Then impeach it with old statements
and get it all thrown out
You admit the good evidence
and keep the bad stuff out
That’s what it’s all about
You get your documents in
Take the privileged stuff out
Put the experts on
And then Daubert sorts them out
You admit the good evidence
and keep the bad stuff out
That’s what it’s all about
You put the relevant in
Take the prejudicial out
Lay a foundation first
And keep the character stuff out
You admit the good evidence
and keep the bad stuff out
That’s what it’s all about
401 in
403 out
803 in
’cause those exceptions are allowed
You admit the good evidence
and keep the bad stuff out
That’s what it’s all about
National Institute of Health Science: Hokey Pokey, with MIDI music and dancing penguins. Thanks, US Department of Health & Human Services!

Wired News: A Vending Machine for Voter Data

Perhaps the best show on television, or at least one of my current favorite is Good Eats (Food Network, M-F 11:30 PM)¹. Good Eats isn’t a traditional cooking show describing recipes, but instead focuses on methods for selecting and preparing foods, as well as discussing the basics of the science behind food. It’s informative and quirky.
Good Eats Fan Page
Host Alton Brown.
¹Or, if you a DVR, just do what I do and program it to record all episodes of the show.

When taking an exam (for example, copyright), if one comes across a fact pattern that looks suspiciously familiar, there’s no need to write more than just “see this case,” right?

Anita Ramasastry: Why the new federal ‘CAN Spam’ law probably won’t work
Dan Fingerman: Response to Anita Ramasastry’s criticism of CAN-SPAM

With 2004 only a few weeks away, one large hurdle (or 5 medium-sized hurdles) remains for this year: exams.
For years, law students have written exams in the dreaded bluebooks. This year, Brooklyn has joined the computerized exam party. While ExamSoft is not quite as bad as Diebold e-voting software, it has some key flaws of its own. Most important, ExamSoft is proprietary Windows software and will not run on Mac OS X. Slightly less important, but annoying, is the lack of on-the-fly spellcheck. The dotted red underlines are a friendly safety blanket, which I rely on for catching typos (on the Mac, it is a feature of the OS and is available in all applications, including Safari, Mail, iChat.)
Since I type much faster and neater than I write, I will be typing exams on computer. Subjecting professors to unnecessarily reading pages of my handwriting could be considered cruel and unusual form of punishment. Since this is the first time in law school that using a Mac has been inconvenient, I needed to find a Windows laptop to use for writing exams. Fortunately, my grandfather lent me his old computer, a PII-vintage Dell. This computer dwarfs the iBook:


As an exam-computer, not as an everyday computer, the Dell is good. The price was right and the keyboard on the Dell is an improvement over Apple’s. Still, no computer keyboard, especially on a notebook is as good as the old IBM keyboards. Of course, those weigh more than my entire computer. A bluetooth version of that would kick ass.
And here’s my advice on how to do well on exams: Write a song about the subject. Seriously. What course did I get my best grade in last year? The one I wrote a song as a study aid. A limerick or poem might be useful, too. Or just read Getting to Maybe. And don’t blog, outline. Maybe I should follow that advice…
Actually, one real piece of advice (though it may be too late):Don’t bother with third-party materials. Remember that you’re being tested on the subject as taught by your particular professor. Unless, of course, your professor wrote the hornbook. Law review articles that your professor has written about the particular subject may be useful. Or not.
Jeremy offers exam advice, Exam Survivor challenege, well-intentioned exam advice
Scheherazade has actually useful study advice.

As classes are wrapping up for the semester, many of my classes are closing with the class giving a round of applause for the professor. The first time this happened last year, I was confused and I still am. Is this a common practice at other law schools? In undergrad?
I can’t recall an instance of ending a class with applause at Tufts, although I took many fewer large lecture courses as an undergrad. While teaching a class is a type of public performance, is applause the most appropriate response? Why not applaud at the end of every class session?
We applaud at the end of a symphony, a jazz solo, an opera aria, a lecture, a symposium or after a touchdown, so maybe the custom is not so out of place. Perhaps I’m just not used to the custom, having never seen it at any time that I can remember in my previous 17 years of school.

Not long ago, LawDork popped up in my Technorati Link Cosmos as one of the sites linking here. Chris (LawDork) noted an article in the November issue of The National Jurist (a free throwaway magazine targeting to law students) about blogging which mentions this little site.
Since my innate narcissism got the best of me, I found this magazine (in a rack hidden away in corner of the student lounge) and there on page 7, in “Blogs to know and love,” between the Volokhs and Jewish Buddha is “Shameless Self Promotion: Music and arts issues from Brooklyn Law School 1L Andrew Raff.” I don’t think that’s quite how I’d describe my blogging, but then, I’m not quite sure how I would. I guess I should also note that I am a 2L (second year student.)
Other blogs mentioned include Jeremy Blachman, Andrew Sinclair and Life, Law, Libido.
The cover article asks “law school’s most famous grads what they liked and hated about law school.” Some of the preeminent legal minds of our time who respond, including Ann Coulter, Geraldo Rivera and Jerry Springer. Such esteemed company.

Look, it’s snowing!

I first blogged about this film back in January, before it premiered at Sundance (see Jewsploitation!), and now The Hebrew Hammer opens this month. It may be the December movie which I am most looking forward to seeing.
Makor will have a screening on Sunday December 7. The film opens in theaters on December 19, but Comedy Central will show it on Monday, December 8 (9pm). Basic cable before the theater? Mishugena!
Hebrew Hammer theme song (mp3).

BBC News: E-commerce targeted by blackmailers

“Criminal syndicates operating from Russia have targeted large online payment systems that belong to gambling sites,” DK Matai of MI2G, which monitors unauthorised computer hacking, told BBC World Service’s Analysis programme.
“In some cases the criminal syndicates have made subsequent phone calls and said, ‘look, you have to pay us $40,000 or $50,000 before we will stop mounting these DDos attacks. If you don’t pay us, then be ready for another day of disruption for your customers’.”

IP Justice analyzes the problems with the IP chapter of the Free Trade Area of the Americas Agreement: “Excessive Force”: Report fron the FTAA Miami Ministerial

Intellectual property rights will continue to be one of the most hotly contested chapters in the FTAA Agreement with pressure from the US to increase rights. However, the US is the only country in the Western Hemisphere that is a net-exporter of intellectual property. All 33 other countries are overwhelmingly net-importers of intellectual property from the US . It makes little sense for these countries to enact laws that will only send scarce domestic resources to Hollywood and Redmond

(via Tech Law Advisor)

Enjoy!
Gothamist, Bluejake and Rion have photos of the thanksgiving day parade giant balloons, including Kermit in a compromising position.

IPKat reports on a UK trademark decision involving the use of color as a mark: When a Single Colour is the Prior Mark

The IPKat brings news of an interesting Trade Mark Registry decision concerning an opposition based on a registration of a colour per se. Orange Personal Communications is the proprietor of two marks for the colour orange in the form of Pantone 151 and a colour sample, applied to the visible surface of packaging or promotional materials etc, where it is the predominant colour.

NY Times: Antispam Bill Passes Senate by Voice Vote.
Via Prof. Lessig, CongressDaily reports that Senator Corzine (Dn-NJ) plans on holding up the pro-spam “anti-spam” bill to insist that the FTC at least study the viability of bounties as part of the solution to spam.
From the House side, Silicon Valley lawmakers think Spam bill is a turkey

Reps. Zoe Lofgren (D.-CA) and Mike Honda (D.-CA) said they voted against the landmark anti-spam bill because the legislation is simply not tough enough and that consumers deserve better. Both said they support the stricter standards of their state’s recently passed anti-spam law, an opt-in measure that allows individual consumers to sue spammers.

Here, Congress gets to look good, by voting for a bill that is intended to stop spam, which no one likes. But, the bill is severely flawed and will likely be ineffective at best and will probably increase the amount of spam clogging inboxes around the US. (See CAN SPAM Act can’t stop spam</a))

Some countries have a coffee culture (like the US, with a Starbucks on every corner), while other countries have a tea culture, where it is the primary hot, caffeinated beverage. The US, along with Italy, France and Germany are examples of coffee countries. China, England, Japan and Russia are tea countries.
Why certain countries prefer one beverage over the other appears to be a function of trade routes, colonial exploits and geography. Tea spread out from China, which is the oldest and second-largest producer of tea in the world. India is the largest.
Coffee was first harvested in Africa and first roasted in the Middle East. Today, Brazil and Columbia are the largest coffee producers, followed by Indonesia, Vietnam and Mexico. The American preference for coffee is likely linked to the Monroe Doctrine and a preference for trade with countries in the western hemisphere.
Is there any correlation between cultural attitudes and whether a country is a coffee or tea country? Do coffee-drinking cultures tend to share certain traits and characteristics while tea-drinking cultures share others?

Today, the City of New York released its Mobile Phone Deadspot Survey, based on the results of a self-selected sample of New Yorkers (including me) who complained about their mobile service on the NYC.gov website or to 311. The most problems were reported in midtown.
Unfortunately, these results are useless. The survey makes no distinction between the quality of service in each area and the nature or severity of the problems in each location. A more useful survey would not be that difficult to conduct: a couple of testers with one phone per carrier could walk each block and note the available signal strength for each service. Every so often, the testers would also check whether an outgoing call could be successfully completed. Of course, only Manhattan alone would be relatively quick to complete. Surveying the entire five boroughs would be a very long project, even by car.
(via Gothamist)

Diebold forgoes copyright suit over leaked memos

Diebold… has decided not to take the additional step of suing for copyright infringement for the materials at issue. Given the widespread availability of the stoplen materials, Diebold has further decided to withdraw its existing DMCA notifications and not to issue and further ones for those materials.

OCLC and The Library Hotel settle trademark complaint

Under the settlement terms, The Library Hotel will receive permission from OCLC to use the Dewey Decimal Classification® trademarks in its hotel and in its marketing materials, with an acknowledgment that OCLC is the owner of the Dewey® trademarks. The Library Hotel will make a financial donation to a non-profit organization that promotes reading by children.

Previously: File under trademark infringement

The major TV networks and Nielsen Media Research wonder why males, ages 18-35, watch less television. The study seeks to blame this decrease in viewing on the appeal of cable TV, video games and the internet (while not addressing the impact of books or this new-fangled thing called real life, which is like interactive 3-D TV.)
While I may not have the complete answer to that question, I, as a member of this group, can offer one piece of advice on how to avoid losing viewers (or me, at least): stop canceling the shows that I want to watch, such as Futurama, Firefly, Family Guy¹ and Andy Richter Controls the Universe. Oh, and show more Law and Order. I can never seem to find that playing.
UPDATE: NBC is set to address that problem: ‘Law and Order’ channel mulled.
¹While at first, I thought Family Guy was merely a bad ripoff of the Simpsons, I’ve come to appreciate it in reruns. It is obviously heavily influenced by The Simpsons, but still unique. And funny.

In Assesment Technologies of WI, LLC v. WIREdata, Inc., the Seventh Circuit Court of Appeals held that one may copy and access a copyrighted database in order to extract non-copyrightable public information from that database. For a unanimous three judge panel, Judge Posner writes:

This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program– a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed.

(via How Appealing)
See also InfoToday discussing newsletter redistribution and databases: Intranet Publishers Beware!
Update:
Susan Crawford: Justly Irascible: A victory for rationality. And a warning to those who would use copyright claims to convert otherwise freely-available material into private property.
Elizabeth Rader: Judge Posner Chases A Wild Hare
How Appealing: 20 Questions for Judge Posner

In conference, House and Senate negotiators agreed on legislation to prevent identity theft.

Starting today, wireless carriers must allow customers in the 100 largest service areas to take their phone numbers with them when transferring service.
While many argue that deregulation is the best way to increase competition and create efficient markets, here’s an example of increased regulation increasing the efficiency of the market. The wireless companies fought the portability requirement. Without number portability, the cost to customers of switching carriers is high– many customers would stay with an inferior service in order to avoid the costs of changing a phone number. Only because FCC regulation forced the cell phone companies to enable local number portability are consumers able to choose the service that works best for them, without being constrained by the desire to keep the same phone number.
Where company policies create an artificial, rather than natural, monopoly power, regulation will increase competition.
Some Links:
Gizmodo: Number Protability Arrives
MobileTracker: Pre-LNP tidbits
AP: Moving Cell Numbers? Wait a Sec
GigaOm: Number Portability tips for Consumers
NumberPortability.com.

News.com: SBC raps RIAA subpoenas in court at a hearing concerning SBC’s motion for summary judgment the RIAA’s motion to dismiss in a federal District Court in California.

Critics of the DMCA say SBC’s case may have a better chance of success than Verizon’s, because the subpoenas have now been issued thousands of times, and the burdens on courts and the threats of exposing people’s private information are no longer theoretical

Excerpts from Prof. Larry Lessig’s new book, Free Culture: How Big Media uses Technology and the Law to Lock Down Culture and Control Creativity are available from the NYU Law Colloquium in Legal, Political and Social Philosophy: Introduction, Piracy, and Creators, Property, and Afterword.

Rep. Dennis Kucinich (D-OH) has taken a leading role in creating public awareness and discussion about the flaws and potential security risks in Diebold’s electronic voting system and the company’s use of the DMCA to prevent discussion about these risks.
On a section of his web site, which discusses voting rights, Kucinich provides a concise summary of the problems with Diebold’s insecure electronic voting technology, with links to the Diebold internal memos and independent research documenting the security flaws. In addition to drafting new legislation, Kucinich Requests House Judiciary Committee Hearing On Diebold’s Abuses Of Digital Millennium Copyright Act in a letter to the House Judiciary Committee.

Diebold’s actions abuse the Digital Millennium Copyright Act, using copyright to suppress speech rather than fulfill the Constitution’s purpose for copyright, to “promote progress.”  These abuses raise a fundamental conflict with the First Amendment, diminishing the Internet’s tremendous value as a most free medium of expression.  Diebold’s actions are representative of a growing body of abuses through which large and powerful parties unfairly intimidate ISPs to remove information those parties do not like.  In other examples, the claims are not really about copyright, but about not showing the parties in a negative light, or not allowing consumers to compare prices, or quieting religious critics.  Powerful parties should not be permitted to misuse copyright as a tool for limiting bad press and barring access to legitimate consumer information.

On another section of his web site, Kucinich serves his constituents by offering links for Polka, Bowling and Kielbasa.
In other E-Voting news, The Harvard Crimson reports on Diebold, the DMCA and Derek: Student Will Not Be Disciplined for Memos

NY Times: Lopsided Victory for Bill Curbing Junk E-Mail

The antispam measure was passed by the House on a 392-to-5 vote. The bill would make mass e-mailers liable for civil fines of up to $250 per electronic message if they tried to hide their identities. It also allows the Federal Trade Commission to begin to fashion a plan to create a “do not e-mail” registry similar to the list intended to let consumers block telephone solicitations.

Prior to the vote, Rep. Billy Tauzin (R-LA) announced agreement on “Historic Anti-Spam Bill”:

For the first time during the Internet-era, American consumers will have the ability to say no to SPAM. What’s more, parents will be able to breath easier knowing that they have the ability to prevent pornographic SPAM from reaching defenseless, unsuspecting children

It’s too bad , then that this legislation will not prevent pornographic spam from reaching the email accounts of defenseless children. Instead, parents will have to wait for their unsuspecting children to receive pornographic spam before they can opt-out. As I’ve said before, the CAN-SPAM Act Can’t Stop Spam.
See also, ClickZ: The 10 Biggest Spam Myths.
Adam Felber: Anti-Spam Legislation Dooms American Waistlines, Penises

Martin Schwimmer: “IP litigation is the Internet’s answer to college football.”

I need a new place to outline and study. My current options are home and the law library. Each has its own advantages and disadvantages. If there is someplace convenient that was less isolating than sitting alone in my apartment or less soul sucking than the fluorescent-lit stress factory that is the library towards the end of the semester, that place would be ideal.

LA Times: State Tells Counties to Establish Paper Trail on Electronic Voting

Secretary of State Kevin Shelley is expected to announce today that as of 2006, all electronic voting machines in California must be able to produce a paper printout that voters can check to make sure their votes are properly recorded.
Late Thursday evening, Shelley placed calls to county elections officials around the state to tell them that any voting system that is currently in use or that is purchased before Jan. 1, 2006, must be modified or replaced to produce a paper trail. After that date, no county will be allowed to buy machines that can’t make printouts.

Harvard undergrad Derek Slater posted a copy of the Diebold memos to his weblog, on a Harvard server and received a cease and desist notice from Diebold. Harvard policy is to terminate the network access of any student who is a “repeat offender” of copyright infringing activities. Slater challenged the “first strike”:

While I greatly appreciate the University’s appropriate response and the

In the Legal Times, Jason Mazzone discusses the problems of publishers claiming overbroad copyright protection over works in the public domain: Too Quick for Copyright

After decades of claiming they own virtually everything in print, commercial publishers have made abiding by copyright law seem optional. If corporations with their teams of lawyers cannot distinguish between what is protected and what is free for public use, we can hardly expect teen-agers with their laptops to play by the rules.

Prof. Mazzone argues that encouraging use of public domain material will enhance freedom of speech and proposes penalizing publishers who claim copyright in public domain works.
(via LawMeme)

News.com: AT&T sues eBay, PayPal over patent

The suit, filed in federal district court in Delaware, claims that eBay and PayPal’s online payment systems infringe on AT&T patent No. 5,329,589, “Mediation of transactions by a communications system.”
That patent, according to an AT&T release announcing the suit, describes “transactions in which a trusted intermediary securely processes payments over a communications system such as the Internet. The use of a trusted intermediary ensures that one party will not have to disclose sensitive information, such as a credit card number or bank account number, to the other party to the transaction.”

While unlimited access to Lexis and Westlaw may be the crack cocaine of legal research, free access to these databases is unquestionably useful. Not just for the caselaw and statutes, but for the news archives, too. LexisNexis has information about television news programs, including fake news programs, like The Daily Show, which is useful for trying to figure out when a particular segment aired, but not useful in trying to remember what was funny.
For example, watch the original clip: Lewis Black On The Do Not Call Registry Controversy
Then, read the summary transcript. Note how little of the original flavor of the piece that the dry and mechanical summary conveys.

Black says that Americans are finally coming together to solve a problem. That problem is telemarketing.
Visual – Federal Trade Commission Building. The FTC set up the National Do Not Call Registry.
Visual – telemarketers.
Interview – Linda Prager, citizen, says answering the phone and it being another solicitation is frustrating.
Visual – Black, showing what he considers the best way to answer a phone.
Graphic – passage of Do Not Call legislation.
Sound Bites – Rep. Edward Markey, MA, discusses legislation. Black says Congress made a mistake because now Americans know they can actually do things quickly if they want to.
Visual – Bush signing bill, courtesy CNN. Denver judge says the Do Not Call list violates free speech rights and is unconstitutional. President Bush ordered the registry to take effect as of today. Industry lawyers vow to take the fight to the Supreme Court.

For real news, this may be a useful database. For fake news, not so much.
Does anyone have a clip or transcript of the “Wacko Jacko” segment from July 10, 2002 (or simply remember the especially hilarious part at the end?)

Today, the Center for Democracy and Technology released Ghosts in Our Machines: Background and Policy Proposals on the “Spyware” Problem:

Many of these applications represent a significant privacy threat, but in our view the larger concerns raised by these programs are transparency and user control, problems sometimes overlooked in discussions about the issue and to a certain extent obscured by the term “spyware” itself.

CDT is also seeking stories about experiences with spyware:Join CDT’s Campaign Against “Spyware”
(via beSpacific)

Marketing Profs: The CAN-SPAM Act of 2003: Real Reform or Political Pork?

The CAN-SPAM Act clearly stems from good intentions, but as currently written it may result in some unintended consequences, including an increase in spam (as most would define it) thanks to its guidelines for legally sending unsolicited commercial email. With a little work, the CAN-SPAM Act might begin to do for email what the Telephone Consumer Protection Act did for faxing—save it from becoming more trouble than it’s worth.

Previously: CAN-SPAM Act Can’t Stop Spam

Is the music industry growing or shrinking? Reuters reports on optimism from Forrester and GartnerG2 analysts:

After a bruising three-year slump, CD sales are showing signs of turning up, and analysts expect that another big stocking stuffer this year will be digital music players, driving traffic to a range of legal download services struggling to make a name in the burgeoning market.

In contrast, Informa Media expects music sales to fall for the next two years:

For 2003 the value of the world’s music sales is forecast to fall for the fourth year in succession. Informa Media estimates the decrease in the retail value will be 8.9%, reducing the overall value of sales to $28.2 billion. CD sales, which fell for the first time in 2001, are forecast to decrease for a third year – by 8% to 2.1 billion units.

News.com reports: AT&T patents anti-antispam technology. Shouldn’t the double negatives cancel out and the headline read “AT&T patents spam technology?”
The patent describes a system and method for counteracting message filtering:

A system and method for circumventing schemes that use duplication detection to detect and block unsolicited e-mail (spam.) An address on a list is assigned to one of m sublists, where m is an integer that is greater than one. A set of m different messages are created. A different message from the set of m different messages is sent to the addresses on each sublist. In this way, spam countermeasures based upon duplicate detection schemes are foiled.

Rep. Zoe Lofgren (D-CA) discusses the FCC Broadcast Flag ruling in a San Jose Mercury News op-ed: FCC rule could harm tech innovation

But here’s the kicker. Under the new rules, the FCC gets to decide if a particular technology provides sufficient protection. If you’re not on the FCC’s pre-approved list, you can’t sell your product….
The FCC’s plan sounds a little like the old Soviet Union. And we know how well centralized state control worked for them. That’s why Congress never gave the FCC the power to dictate the design of new computers or consumer electronics devices.

At PuckUpdate, Steven Ovadia notes that the Devils may be trying to trade Scott Gomez and thinks that “Gomez would be a great fit in Buffalo, but [is] not sure what Buffalo could offer the Devils in return.” The obvious answer is: Satan.

NY Times: In Utah, Public Works Project in Digital

The cities involved argue that reliable access to high-speed data is so important to their goals of improving education and advancing economic growth that the project should be seen as no more controversial than the traditional public role in building roads, bridges, sewers and schools – as well as electric power systems, which are often municipally owned in the Western United States.

Wired News: Acxiom Opts Out of Opt-Out

Acxiom calls itself the premier source of addresses and phone numbers for telemarketers and mass mailers. But when it receives a list of names of people who want to get off its lists, the company considers the request to be junk mail and sends it back.
The Little Rock, Arkansas, company, which made $958 million in revenue last year from selling people’s names, addresses and profiles, says it wants to hear personally from each individual who wants to opt out. That way, Acxiom can explain how fair its privacy policies are.

Microsoft Plans To Sell Music Over the Web and Wal-Mart to launch online music service.
Steve Jobs warns: “there’s no way to make money on these stores.”
News.com purchased select MP3.com assets from Vivendi Universal and plans to start a digital music site, but will not use any of the independent music on the current MP3.com.
Pearl Jam is getting into the act, too. NY Times reports: Pearl Jam, on Its Own, Seizes the Moment and Sells CD on the Web

RSS is a very useful web format. It is designed to allow web sites to syndicate content so that it can be used by an application, such as a desktop news aggregator or another web site.
Blogs have led the way in using RSS, mainly because most weblogging programs, including Movable Type, TypePad, Radio, Livejournal and pMachine, automatically generate RSS feeds by default. Blogger is the notable exception. For example, I have feeds for this site, Linky links and the IPT blawg.
News sites have started to provide headlines in RSS format, including The New York Times, BBC, News.com, Salon.com and Wired News.
By using a news aggregator, instead of surfing in a browser, one can read more of the web in less time and keep current on more issues from a wider variety of sources.
Besides presenting news, RSS feeds can be used in many different ways. Any information that is serially or chronologically presented can be displayed in an RSS reader. Here are some of the more interesting uses of RSS that I’ve seen. Please add others in the comments:
Feeds:

• Disorient Express offers MTA subway service updates.
• Tapestry offers comics via RSS.
• The Internet Archive presents the latest additions to its collections via RSS
• Cornell’s Legal Information Institute offers Recent decisions of the US Supreme Court in RSS.
• Craigslist offers listings in all of its categories in RSS, such as New York apartments and musicians.
• Technorati generates watchlists in RSS for $10/year.
• RSS Jobs offers job listings in RSS, for $5/month.

How to use feeds:
Web services:

• Bloglines is a web-based news aggregator.
• Yahoo attempted incorporating RSS reading, but appears to have discontinued support.

Software:

• NetNewsWire for Mac OS X is wonderful.
• SharpReader is an aggregator for Windows.
• NewsGator is a plugin for Outlook.
• News Monster is a plugin for Mozilla.
• myPod is for iPod
• Comprehensive listing of RSS readers

Professors have started to hand out course evaluation forms. I guess that means I need to start outlining. And start reading.

The Artists Rights and Theft Prevention Act, introduced in the Senate by John Cornyn (R-TX) and Dianne Feinstein (D-CA) would create criminal penalties for anyone who makes available over the internet a pre-release movie or album.
News.com: Share ‘True Crime,’ do the time

The threat of a three-year prison term kicks in when anyone makes an illicit copy of a movie “available on a computer network accessible to members of the public,” when the film “was intended for commercial distribution but had not been so distributed at the time.” Once the film is commercially distributed, the felony penalties appear to no longer apply.

Washington Post: Senate Bill Targets Internet Pirates

“We’re trying to go after the pre-release stuff that is absolutely killing any potential revenue for one of the segments of our economy that’s doing well,” said Don Stewart, a spokesman for Cornyn. The movie studios and record labels are “just absolutely getting clobbered.”

A conference in NY will discuss the intersection of video game interactions and legal norms: The State of Play: Law, Games, and Virtual Worlds

The new environments of electronic games, especially those that are massively multiplayer, are not just gamespaces; they are cultures unto themselves. Like real societies, they grow and evolve as their members create rules and norms.  Some norms in games are cooperative and democratic, others are dictatorial and dystopic. This interdisciplinary conference will examine the state of play today in an effort to understand the phenomenon of digital games and the virtual worlds they create and to discuss the complex social, psychological, and legal issues to which they give rise.

There is no fee to attend the conference, except for the $150 fee to attend.
Wired News: Laying Down the Virtual Law 

A host of questions are on everyone’s minds: Are virtual worlds the new Wild West or a legitimate province of the courts? Is game play equivalent to speech as defined in the First Amendment? Is there such a thing as fraud in a metaverse?

News.com: Kazaa says hello to digital Bollywood

The Hindi-language film, “Supari,” will be offered to Kazaa users for $2.99, under the terms of the agreement the Australian company has signed with P2P products distributor Altnet and Indian filmmaker Aum Creates Unlimited.

Salon.com: Don’t look now, but the dean is watching

Perhaps most disturbing to critics and privacy advocates is the fact that schools are responding to subpoenas from the music recording industry with as much alacrity — and as many privacy-invading techniques — as they are to subpoenas related to national security. In their efforts to ferret out pirates, administrators are violating their own campus privacy policies, treating students who use P2P software the same way they would treat potential terrorists.

IFPI: Recording industry announces new one-stop-shop for webcast licensing

The recording industry today announces a new international agreement that will allow internet webcasters to stream music programmes to consumers on the basis of a single “one-stop” licence.
The agreement will allow webcasters to clear record producers’ rights in a multitude of countries by entering into a licence in one participating country. It will come into force as it is signed by national collecting societies over the next few weeks.

Reuters: Music industry offers global Webcast license

On October 31, the United Kingdom’s new copyright law took effect: The Copyright and Related Rights Regulations 2003. This new law is intended to harmonize UK law with EU copyright law, particularly Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. According to the UK Patent Office, the new statute is intended to address “certain, largely technical, changes are necessary to bring the 1988 Act into conformity with the Copyright Directive.
However, in a newly-released report, Implementing the European Union Copyright Directive, the Foundation for Information Policy Research finds problems with EU copyright law:

European citizens could find many common activities banned as the EU Copyright Directive becomes law, a new FIPR report reveals. Transferring songs from a copy-protected CD to a Walkman or computer could be illegal, as could watching a DVD on a computer running Linux.

BBC News: Why that mix CD might be illegal

Albany Times-Union: Madster creator seeks hearing: “The founder of the defunct file-swapping service Madster wants the U.S. Supreme Court to allow him to restart the service.”
Ernest Miller: : “This would be a bad set of facts and argument to use as the basis for the court to take another look at Sony v. Universal.”

First Monday:Digital rights management and the breakdown of social norms by Christopher May

At the centre of the protection of intellectual property rights (IPRs) is a long history of political bargains struck between private rights to reward and the social benefit of information/knowledge diffusion. The historical dynamic of politics in this policy area has been to expand the rights of owners while circumscribing the public realm of information and knowledge. In recent decades the public domain has become merely a residual, all that is left when all other rights (as constructed by IPRs) have been exercised. The advent of digital rights management (DRM) technologies has disturbed a reasonably legitimate politico-legal settlement over “fair use,” challenging the existing balance between the rights of “creators” and the interests of users. The breakdown of the norms underpinning IPRs has prompted renewed debate regarding their legitimacy.

DRM not only imposes an artificial scarcity on digital goods, so that they more closely resemble physical goods, but can make access more restrictive than with analog media. Must digital media allow the same level of public access and use as traditional media, or should copyright owners be allowed to granularly control how their expressions are used? Where is the proper balance between absolute protection and the public’s fair uses?

LA Times: Is Hollywood Failing to See the Big Picture?

Even in this era of sweeping technological change, one immutable law remains: The customer is always right. The record industry has been staggered because it was two steps behind its audience, which is bad enough when you’re promoting a new song, even worse when you’re trying to build a new business. The movie industry realizes that it can’t afford to be slow off the mark.

The establishment media is picking up on the issues and potential problems with unsecured electronic voting:
NY Times: Machine Politics in the Digital Age

“I am committed to helping Ohio deliver its electoral votes to the president next year,” wrote Mr. O’Dell, whose company [Diebold Inc.] is based in Canton, Ohio.
But it is not the only way that Mr. O’Dell is involved in the election process. Through Diebold Election Systems, a subsidiary in McKinney, Tex., his company is among the country’s biggest suppliers of paperless, touch-screen voting machines.

Washington Post: Touch-and-Go Elections
Diebold’s legal threats against students uploading company memos describing the security flaws in their electronic voting machines continue.
Harvard Crimson: Student Accused of Violating Copyrights
In court, the suit against Diebold by non-profit ISP Online Policy Group (OPG) and two Swarthmore students will move ahead on an accelerated schedule,
EFF: Judge Speeds Case on Electronic Voting Company’s Threats Against Critics

The FCC ruled yesterday that consumers will be able to not only port phone numbers from one mobile phone carrier to another, but from landline telephones to mobile phones, also by November 24, 2003, “unless [wireline carriers] can demonstrate that complying with these regulations would be technically infeasible.”
News release: FCC Clears Way for Local Number Portability Between Wireline and Wireless Carriers
FCC Ruling
Commissioners’ statements: Powell, Abernathy Copps , Martin , Adelstein
NY Times: F.C.C. Backs Phone Number Portability

The ruling by the F.C.C. was a defeat for phone companies that argued that transferring wire-line phone numbers to wireless services was logistically difficult. They proposed a more limited measure that would have allowed only about one in eight phone users to move a wire-line number to a mobile phone, the agency said.

FCC: Wireless Local Number Portability Frequently Asked Questions

While Penn State’s deal with Roxio will provide access to popular music, how relevant is the Napster catalog to academic music studies? Wouldn’t Penn State be more successfully promoting its academic goals by spending the money from the Roxio deal to create digital streaming access to its entire music library?
Penn State Live: Q&A: Penn State’s new online music service with Napster

Penn State is concerned that some of its students don’t understand that downloading music over computer networks without purchasing copyright permission is both unethical and against the law. The University believes it has a responsibility to do something to change that. Penn State will continue to try to educate students on this issue and will continue to enforce its strong policies against copyright infringement. At the same time, the University wants to provide legal alternatives to illegal downloading. This service is directly aimed at helping students to understand the issue and to provide them with an alternative.

The Collegian: PSU students react to deal with Napster: “I think it is kind of dumb.”
News.com: Penn State students blast Napster deal: “The money I pay could go to much better things such as rebuilding the network or better lab equipment.”
Boston Globe: Penn State, Roxio link to let files flow
Wired News: Penn State, Napster Ink Pact
Derek Slater: Thoughts on PSU/Napster and Responses to Thoughts on PSU/Napster
The Register: Penn State’s pigopolist pork is not smelling sweet
Previously: Napster follows in the footsteps of Lexis and Westlaw

Washington Post: FCC Deserves a Digital Thanks for Nothing

The Federal Communications Commission has figured out how to make digital television more appealing to the millions of consumers who haven’t bought into it: Force manufacturers to make hardware that’s less capable than what’s sold today.

Susan Crawford: “I’m unhappy with what the FCC has done, because it seems to be boundless, unprincipled, and based on irrational assumptions.”
Arnold Kling: An Open Letter to Jack Valenti

Please note that it is inaccurate to refer to broadcast HDTV as “free TV,” particularly in the wake of the broadcast flag regulation. In fact, HDTV is going to be very expensive for the economy as a whole, as millions of devices will now have to be made to conform to the Broadcast Flag standard. Furthermore, I predict that individuals will spend time and resources trying to “hack” the Broadcast Flag, which will lead to modifications of the technology, which will layer on more costs to the economy.

(via Copyfight)

The FTC took action against D-Squared Solutions in order to stop that company’s deceptive trade practices and obtained a Temporary Restraining Order. D-Squared sells software to block pop-up Windows Messenger spam, as well as software to send Windows Messenger pop-up spam and advertises these products by using, not suprisingly, Windows Messenger spam.
From the FTC:
Complaint
TRO
List of web sites operated by D-Squared and its licensees
News release
The Baltimore Sun: Court halts Web ‘pop-up’ advertising
MSNBC: FTC disables pop-up ad firm
Microsoft: Disabling Messenger Service in Windows XP (and 2000)

InternetNews.com: AGs Want to Can the Can Spam Bill

AGs from California, Kansas, Maryland, Nevada, Texas, Vermont, Virginia and Washington signed the letter, which said that the amended act has so many loopholes, exceptions and standards of proof that it won’t protect consumers. They also said that the law wouldn’t deter spammers, but merely foster more litigation.

NY Times: Spammers Can Run but They Can’t Hide

Here are some digital downloading and music-related links I didn’t get around to posting on Friday:
The Economist: Is the threat of online piracy receding?

People in the music industry are feeling more optimistic than they have for years. Apple’s digital music-download service, iTunes, has won customers in far greater numbers than once seemed possible. This week saw the launch of Napster 2.0, a paying version of the service shut down by big music and the courts in 2002 because its software allowed people to share songs for free. Legal, paid-for online services, music executives hope, together with lawsuits against file-sharers, could save the industry from internet piracy.

bIPlog: RIAA Lawsuit Party
eMarketer: Music Downloading: Wrong, But Going Strong

70% of teenage consumers say they have downloaded music. When asked whether they consider such an act to be wrong, over 47% of all respondents said “yes” but just 32.6% of teenage respondents said the same.

NPD Group: Consumers Delete Large Numbers of Digital Music Files From PC Hard Drives

In August 1.4 million households deleted all the digital music files saved on their PC hard drives. Prior to August, deletions were at much lower levels. For example in May of 2003, when NPD first began to track music file deletions, 606,000 households deleted all digital music files from their PCs. Eighty percent of the consumers who deleted files had fewer than 50 files saved; just 10 percent had more than 200 files.

Meh.

Reuters: Napster, Penn State to Announce Deal – Sources

Song-swap pioneer-turned online music store Napster is expected to announce a deal with Penn State University to offer its newly relaunched music service for free to tens of thousands of students, sources familiar with the matter said on Wednesday.

It looks like Napster is borrow some marketing ideas from Lexis and WestLaw: get students hooked with free and convenient access to the point where students rely on that access so that graduates will become subscribers.

Law.com: Hip-Hop Band Sues Fox Over New Sitcom’s Name

On Sunday, Fox debuted a new comedy called “Arrested Development.” The band Arrested Development has sued Fox for four counts of trademark infringement in DeKalb County Superior Court. The band is asking for an immediate halt to the use of its name, plus damages and attorney fees….
In the complaint, the band calls the name of the new sitcom a “confusingly similar imitation” of the band’s name, which is “likely to deceive, confuse and mislead prospective purchasers” of the defendant’s products as “authorized by or in some manner associated with the plaintiffs, which they are not.”
The complaint alleges that the misappropriation of the plaintiffs’ name is causing “irreparable harm” to the band’s name and reputation. The band has a federal trademark on its name, according to court filings, but elected to sue Fox in DeKalb under Georgia common law for trademark infringement. Venue is proper, according to the complaint, because one band member’s home and the Fox affiliate are located in DeKalb.

Salon.com: Making the U.S. safe for Spam

By eliminating a consumer’s right to sue, overriding state legislation, and providing for truthful-yet-unwanted e-mail from so-called legitimate spammers, the Can Spam Act will create a flood of unsolicited commercial e-mail, all of it legal.

Previously: CAN-SPAM Act can’t stop spam

FCC Adopts Anti-Piracy Protection for Digital TV
FCC order: In the Matter of: Digital Content Broadcast Protection
Commissioner Press Statements: Powell , Abernathy, Copps, Adelstein
EFF: Federal Communications Commission Adopts Hollywood Tech Mandate: “The FCC has decided that the way to get Americans to adopt digital DTV is to make it cost more and do less.”
AP: FCC approves Internet anti-piracy tool
Ernest Miller: FCC Mandates Broadcast Flag

A three judge panel of the Ninth Circuit Court of Appeals decided Newton v. Diamond, et. al., an appeal from summary judgment in a copyright infringement case against the Beastie Boys, brought by jazz musician James W. Newton, Jr.

This appeal raises the difficult and important issue of whether the incorporation of a short segment of a musical recording into a new musical recording, i.e., the practice of “sampling,” requires a license to use both the performance and the composition of the original recording. The particular sample in this case consists of a six-second, three-note segment of a performance of one of his own compositions by plaintiff, and accomplished jazz flutist, James W. Newton. The defendants, the performers who did the sampling, are the members of the musical group Beastie Boys. They obtained a license to sample the sound recording of Newton’s copyrighted performance, but they did not obtain a license to use Newton’s underlying composition, which is also copyrighted.
The district court granted summary judgment to the defendants. In a scholarly opinion, it held that no license to the underlying composition was required because, as a matter of law, the notes in question — C – D flat – C, over a held C note — lacked sufficient originality to merit copyright protection. Newton v. Diamond, 204 F. Supp. 2d 1244, 1256 (C.D. Cal. 2002). The district court also held that even if the sampled segment of the composition were original, Beastie Boys’ use was de minimis and therefore not actionable. Id. at 1259. We affirm on the ground that the use was de minimis.

(via How Appealing)
More analysis from Ernest Miller: Beastie Boys Sampling Not Infringement

60 Minutes ran a scare story about file sharing this week: Pirates Of The Internet
Fortunately, federal law already prohibits piracy and provides for harsh penalties in 18 USC § 1652 Citizens as pirates:

Whoever, being a citizen of the United States, commits any murder or robbery, or any act of hostility against the United States, or against any citizen thereof, on the high seas, under color of any commission from any foreign prince, or state, or on pretense of authority from any person, is a pirate, and shall be imprisoned for life

News.com: Patent ruling tugs at Net downloads

Last Thursday, a federal judge in the Western District Court of Pennsylvania granted SightSound’s motion for summary judgment against Bertelsmann’s divisions, paving the road for the 5-year dispute to go to jury trial. The court also dismissed Bertelsmann’s request to avoid trial, which was based on the assertion that SightSound had not filed the proper information with the United States Patent and Trademark Office.

The patents in question are 5,191,573, a method for transmitting a desired digital video or audio signal, and 5,675,734, a system for transmitting desired digital video or audio signals

Wired News: California Halts E-Vote Certification

The discovery that uncertified software may have been used in electronic voting machines has prompted California officials to delay plans to approve new machines made by Diebold Election Systems.

Reuters (via BizReport.com): Digital Music Biz Faces Hurdles in Europe

Apple’s plans to take a bite out of the still nascent European sector will depend strongly on its capacity to deal with the region’s complex multilingual, multicultural and multi-regulatory issues. Moreover, it will face intense competition from already established music e-tailers and other U.S. rivals….
“You can’t go to a single place to get all the rights. To be able to deal with them requires physical traveling, a certain amount of negotiations expertise, and you need to be able to speak the native languages,” says Mark Mulligan, senior analyst at Internet research firm Jupiter Research.

EFF: Online Policy Group v. Diebold, Inc.

Diebold, Inc., manufacturer of electronic voting machines, has been sending out dozens of cease and desist letters to Internet Service Providers (ISPs), after internal documents indicating flaws in their systems were published on the Internet. The company cited copyright violations under the Digital Millennium Copyright Act (DMCA) and demanded that the documents be taken down.
Now EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are fighting back, seeking a court order on behalf of nonprofit ISP Online Policy Group (OPG) and two Swarthmore College students to prevent Diebold’s abusive copyright claims from silencing public debate about voting, the very foundation of our democratic process.

Copyfight: EFF, CIS Seek Court Order Against Diebold
Derek Slater: “On Friday, Harvard’s Computer Security team contacted me about Diebold’s notice-and-takedown request.”
NPR: Activist Group to Sue E-Voting Firm

In tomorrow’s election, New York City voters will decide whether or not to radically overhaul the way that public officials are elected. Since I think that the net effect of the organized political parties on our political system is not positive, I welcome change that will weaken the two party duopoly and promote voter choice. However, ballot initiative 3, the non-partisan primary proposal supported by Mayor Bloomberg, is not that effective change. Non-partisan voting, as described in ballot initiative 3, is a poorly developed idea that would contribute only negatively to New York’s electoral process and reduce democratic choices. Therefore, I encourage you to vote “NO” on Question 3.
The proposal
If approved by voters, Question 3 would eliminate party primaries for city offices (Mayor, Public Advocate, Comptroller, Borough Presidents, and Council members). Instead, an open primary would be held in September, in which all voters, regardless of party affiliation, would vote for a candidate. The two candidates who received the most votes in the primary election would then be the only two candidates in the general November election.
The full text of the proposal:

This proposal would amend the City Charter to establish a new system of city elections for the offices of Mayor, Public Advocate, Comptroller, Borough President, and Council member. The September primary election would be open to allvoters and all candidates, regardless of party membership or independent status. The top two vote getters would compete in the November general election. In both elections, candidates could indicate their party membership or independent status on the ballot. Candidates participating in the voluntary campaign finance program, which provides public campaign funding, could not accept contributions from political parties or party committees. The new system would replace the current system of political party nominations through primary elections in which only party members may vote. The changes would take effect after the 2005 Citywide election. Shall this proposal be adopted?

This proposal is intended to make the city electoral system more democratic. Since the Democratic party has a large advantage in the number of registered voters over any other party, the Democratic candidate is likely to win. Because only registered Democrats are able to vote in the Democratic primary, voters who are not affiliated with the Democratic party may have no actual influence on selecting the candidate who is most likely to win the office. <a href="Proponents of the initiative argue that it will increase voter turnout, increase minority participation, create better choices for voters, and limit the corruption of party politics.
Problems with the proposal
The non-partisan primary proposal is flawed for a number of reasons. The proponents of the proposal have demonstrated no empirical evidence that non-partisan primaries will have the positive effects they could. The proposal will undermine city campaign finance laws and actually increase the influence of party bosses. With only the top two candidates from the open primary election, voters in the general election may be denied the choice between differing political opinions.
The proposal has not received the serious scrutiny that is required before such a radical proposal should be enacted. NYPIRG argues: “The Charter Revision Commission didn’t do its homework. Opponents [to Question 3] raised serious questions. These include whether killing party primaries would lower voter turnout, advantage wealthy candidates, and make elections less about issues and more about celebrity. But the commission didn’t fully address these issues.” In the absence of more detailed studies about how the non-partisan primary would affect voter turnout for both the primary and general elections, campaign spending and name recognition, the proposal should be defeated. The mere fact that this proposal could possibly make elections more equitable is no reason to adopt the proposal without more proof. In other words, the commission has not met its burden of persuasion: The Bar Association for the City of NY opinion points out that “the [Charter Revision] commission acknowledges that there is no dispositive proof that a change to nonpartisan elections will produce the benefits that many of its proponents claim, and that the Commission seeks to achieve.” It is the proponent of of dramatic change that must make the case, not the opponent.
This proposal would undermine the city’s innovative campaign finance laws, consolidate the power of party bosses and bring about a return to the bad old days of machine politics. The NY Times editorial board fears that non-partisan elections will actually increase the negative influence of party bosses:

The city’s election system is actually a mixture of good and bad, with the good often due to its campaign finance system. That program — with its four-to-one match for qualifying funds raised by participating candidates — is the crown jewel of New York City’s political life. It has given rise to competitive mayoral contests and helped transform the City Council, turning grass-roots candidates into serious contenders. Under the proposed charter revision, it would be hamstrung. Party bosses, currently banned from contributing to primary contests, would be able to spend endlessly for their favored candidates. The mayor says the city could figure out a way to adjust the rules, but election experts, citing Supreme Court precedents, say that is doubtful. With so few clear benefits to the mayor’s plan, we are unwilling to take the risk.

The proposed system will favor self-financed, wealthy and celebrity candidates like Schwawrtzenegger and Bloomberg. In elections, the largest hurdle a candidate faces is name recognition. When a candidate has his or her own money or celebrity, that candidate has significantly easier access to the media. In the 2001 mayoral election, Bloomberg was able to blanket the city with ads. In the California recall election, Governor-elect Schwartzenegger received the benefit of exposure in the entertainment media because of his status as a movie star. Without the selection process of the party primaries, candidates with substantive policy experience may have less name recognition before the general election.
This proposal changes the election where city voters have substantive choice from the general election to the non-partisan primary. Although the Democratic candidate is more likely to win the general election than any other party’s candidate, the fact remains that the Democratic candidate is going to occupy a certain part of the political spectrum and is a known quantity. When the candidates who will compete in the general election are chosen by the non-partisan primary, it is unclear what part of the ideological spectrum each of the two candidates will represent. The non-partisan primary election will be where the real action happens in city elections. The turnout is generally going to be lower in a primary election than in a general election where voters will also be participating in state and federal elections. Neither of the top two candidates could be the candidate preferred by the majority of voters and there might be no ideaological distinction between the top two candidates.
Alternatives
Status Quo
While not perfect, the status quo party primary system represents a superior form of running elections and presents more substantive choices to voters in the general elections. As the only alternative presented in this election, the status quo is clearly the preferred choice at the polls tomorrow.
Instant Runoff Voting
A better solution would be to adopt the electoral process of instant runoff voting, in which voters rank their preferences in candidates during the general election. The Center for Voting and Democracy presents the case for IRV clearly and concisely:

Instant runoff voting allows for better voter choice and wider voter participation by accommodating multiple candidates in single seat races and assuring that a “spoiler”-effect will not result in undemocratic outcomes. Instant runoff voting allows all voters to vote for their favorite candidate without fear of helping elect their least favorite candidate, and it ensures that the winner enjoys true support from a majority of the voters. Plurality voting, used in most American elections, does not meet these basic requirements for a fair election system that promotes wide participation, and traditional runoff elections are costly to the taxpayer and often suffer from low voter turnout.

Unlike the non-partisan primary proposal, an IRV system would give voters substantive choice in the general election with a full slate of candidates affiliated with major and minor parties as well as independent candidates.
Instant runoff voting will not be viable in NYC until the city replaces its obsolete mechanical voting machines with a secure electronic voting system that will allow for the easy tabulation of ballots with multiple candidates selected and ranked in each race.
Links
Neutral/News stories

• NYC Campaign Finance Board: NYC Ballot proposals: question 3        
• Gotham Gazette Guide to New York City’s 2003 Ballot Proposals
• NY Times: Facing a Vote to End Primaries, Many New Yorkers Just Yawn
• NY Times: On Issue of Nonpartisan Voting, a Battle Between the Parties
• NY Times: Appeals Over Primaries Go Out by Mail, by Phone and on Foot

Against

• NY Times: No on the Mayor’s Election Plan
• NY Post: Post Electoral Picks
• Bob Herbert (NYT): Sneak Attack by Bloomberg
• NYPIRG: Ballot Question 3: Ending Primaries
• Brennan Center for Justice: Brennan Center Raises Concerns About Charter Revision Commission Proposal for new Election System
• Tom Robbins (Village Voice): Rush to Judgment
• Mark Green: Instead of Non-Partisan Elections, Consider Some Real Reforms
• Gifford Miller and James Oddo (City Council Speaker and Minority Leader): Elections without parties? No.
• MoveOn.org (via email): “It’s not often that we agree with the New York Post editorial pages, but the Post is just one of a number of newspapers who oppose the initiative… Please go to the polls tomorrow and vote NO on Question 3.”

For

• NY Daily News: Yes on Proposal 3
• Frank J. Macchiarola (Chairman, Charter Revision Commission): It Is Time For Non-Partisan Elections In NYC
• Frank J. Macchiarola (Chairman, Charter Revision Commission): Elections without parties? Yes.

UPDATE (Nov. 4, 10:50pm): NY1 reports:Voters Reject Non-Partisan Elections

NY Times: File Sharing Pits Copyright Against Free Speech

Forbidden files are circulating on the Internet and threats of lawsuits are in the air. Music trading? No, it is the growing controversy over one company’s electronic voting systems, and the issues being raised, some legal scholars say, are as fundamental as the sanctity of elections and the right to free speech.

The Diebold issue shows how p2p can serve democracy. It also raises the question: is democracy a non-infringing fair use?
This article is full of great quotes:

“Are these companies staffed by folks completely ignorant of computer security,” [Prof. Rebecca Mercuri] said, “or are they just blatantly flaunting that they can breach every possible rule of protocol and still sell voting machines everywhere with impunity?”
“[Sequoia’s approach is] very different from the way that Diebold has been doing things.” [Aviel D.] Rubin, who has received a cease-and-desist notice from Diebold because of his research, said, “The solution is to stop selling insecure voting machines and not to continue threatening students who are only trying to protect our democracy.”

NY Times: At Sea With MP3’s, Boomers Buoy Struggling Record Industry

Even better for the music industry, these fans actually pay for the music. “We feel like we’re losing less sales to file sharing” on albums by older artists, as well as those by younger artists who appeal to baby boomers, like Ms. Jones, John Mayer and Josh Groban, Mr. Botwin, of Columbia Records, said.

Reuters: U.K. Plans to Extradite Spammers 

British lawmakers plan to use a new tactic to stop the torrent of junk e-mail spam that floods in from overseas: extraditing the mass-mailers and bringing them to trial in the United Kingdom.
“Spammers are no longer an irritant, they are a threat,” British MP Brian White said Thursday. The U.K. last month was the second European Union country after Italy to criminalize spam in a law that goes into effect in December.

Wired News: Aussies Do It Right: E-Voting.
Unlike here in the US, Australian e-voting technology is being adopted in order to accurately and securely count votes.

Wired News looks at the new Napster legit download service and finds that despite some confusing and inconsistent availability of tracks, depending on the license terms, New Napster Off to a Solid Start 

Despite its flexibility, the service can also be confusing. Some songs in the Napster library can only be streamed, while others are only available for a 99-cent download, even if you’re paying for the streaming service. Which songs fall into each category isn’t clearly spelled out. Some users are liable to think they are signing up for unlimited access to the Napster library, only to find out that some tracks must be purchased separately.

NY Times: Saving Seeds Subjects Farmers to Suits Over Patent

In 1998, Mr. McFarling bought 1,000 bags of genetically altered soybean seeds, and he did what he had always done. But the seeds, called Roundup Ready, are patented. When Monsanto, which holds the patent, learned what Mr. McFarling had sown, it sued him in federal court in St. Louis for patent infringement and was awarded $780,000.
The company calls the planting of saved seed piracy, and it says it has won millions of dollars from farmers in lawsuits and settlements in such cases. Mr. McFarling’s is the first to reach a federal appeals court, which will consider how the law should reconcile patented food with a practice as old as farming itself.

Are shrinkwrap licenses for seed packages enforceable? How much of a limited monopoly should be granted to holders of patents on seeds? To what extent should companies like Monsanto be able to control the way their patented seeds are used?

Law.com: Workplace Computer Off-Limits?

A New Haven, Conn., criminal defense lawyer wants the state Supreme Court to recognize that employees have some expectation of privacy when it comes to their workplace computers — even if the material they are viewing or downloading is child pornography.

See also: Leventhal v. Knapek, where the Second Circuit ruled that a public employee has a reasonable expectation of privacy for his workplace computer and that a warrantless search of that computer violates the Fourth Amendment.
Even if employees have a reasonable expectation of privacy in their workplace computer, downloading a library of child pornography is still a bad idea.

Change in UK Law Allows Library to Archive Electronic Publications

A Private Members Bill, introduced by Chris Mole MP in December 2002 has passed all its Parliamentary hurdles and became law today when it received Royal Assent. The Legal Deposit Libraries Act 2003 extends previous legal deposit legislation passed nearly 100 years ago in 1911. The Act enshrines the principle that electronic or e-publications and other non-print materials will be deposited in the future under secondary legislation

BBC: British Library archives websites

dc.internet.com: Boucher Calls Copyright Office ‘Misguided’

U.S. Rep. Rick Boucher (D.-Va.), a longtime champion of fair use rights, said Thursday the Copyright Office’s ruling earlier this week denying consumers the right to make “fair use” copies of digitally recorded material except in very narrowly defined cases, was a “misguided decision.”

Yesterday, the House Committee on Energy and Commerce held hearings about online wine sales and direct interstate shipments.

The [FTC][1] Howard Beales, Director of the FTC’s Bureau of Consumer Protection, testified:

“Any solution to the problems caused by spam should contain the following elements: enhanced enforcement tools to combat fraud and deception; support for the development and deployment of technological tools to fight spam; enhanced business and consumer education; and the study of business methods to reduce the volume of spam.”

[FTC News release][2]
[FTC Testimony][3]
Internetnews.com: [FTC: Help Us Find and Prosecute Spammers][4]

[1]: http://www.house.gov/smbiz/">House Committee on Small Business Subcommittee on Regulatory Reform and Oversight held hearings yesterday concerning
E-Mail Spam.
The <a href=“http://www.ftc.gov/ [2]: http://www.ftc.gov/opa/2003/10/smallbiz.htm [3]: http://www.ftc.gov/os/2003/10/smallbiztest.pdf [4]: http://www.internetnews.com/IAR/article.php/3102491

Open chart (in a new window)
See also:
WSJ: Walt Rocks: Rating the New Music Sites
NY Times: Paying the Piper, Round 2: The Repertory Grows

AP: Music Group Files 80 Downloading Lawsuits

The recording industry filed 80 more federal lawsuits around the country Thursday against computer users it said were illegally sharing music files across the Internet.
Those 80 people were among 204 who had been threatened with lawsuits earlier this month by the Washington-based Recording Industry Association of America (news – web sites) unless they contacted the trade association to discuss a financial settlement.
The RIAA said the remaining 124 people had approached music industry lawyers about settling the claims.

Wired News: RIAA Sues 80 More Swappers: “The RIAA also revealed that 1,000 file sharers have signed “Clean Slate” affidavits.”
What’s a music war without music war profiteers? LexisNexis is offering Recording Industry Association of America Case Activity for only $45 per complaint.

In its copyright infringement lawsuit against IBM, the SCO Group is asserting that the GPL (General Public License), the license which forms the basis for open source software such as Linux, is unenforceable. News.com: SCO attacks open-source foundation

“The GPL violates the U.S. Constitution, together with copyright, antitrust and export control laws,” SCO Group said in an answer filed late Friday to an IBM court filing. In addition, SCO asserted that the GPL is unenforceable.

The Federal Trade Commission released a report on How to Promote Innovation: The Proper Balance of Competition and Patent Law and Policy. Among the ten FTC recommendations:

• Create a new administrative procedure that will make it easier for firms to challenge a patent’s validity at the U.S. Patent and Trademark Office (PTO), without having to raise an expensive and time-consuming federal court challenge
• Allow courts to find patents invalid based on the preponderance of the evidence, without having to find that clear and convincing evidence compels that result
• Limit the award of treble damages for willful patent infringement.

One reason why autumn is my favorite season: fresh apples.

…a ReplayTV stocked with the complete library of The Simpsons Treehouse of Horror episodes.

I was pleasantly suprised to find Sunset, a pre-release track from James Carter’s forthcoming Columbia release, Gardenias for Lady Day, Sunset“>available on iTunes. This is a warm, rich-sounding track with an orchestral string section that hearkens back to an earlier era of standards. The sound is not suprising for an album that is intended to pay tribute to Billie Holiday. I am looking forward to its release on November 11.
Jazz Times: James Carter Salutes Holiday.

internetnews.com: Speaker May Force House Anti-Spam Vote

U.S. Speaker of the House Dennis Hastert is considering bypassing House members bickering over competing anti-spam bills by introducing for a full floor vote the Can Spam Act passed by the Senate last week.

As I discussed last week, enacting this bill will have little effect on spam, since the CAN-SPAM Act can’t stop spam.

Newark Star-Ledger: Prof to music labels: Lay off ‘cyber-pirate’ suits and try a tax

The music industry’s war on file-swappers is a messy affair, with no easy answers. But a guy at Harvard has a modest proposal that is sure to stir some passions.
Are you ready for a music tax?
William Fisher’s proposal, featured in an upcoming book, makes at least as much sense as music labels suing the pants off their customers/pirates.

NY Times: Online Music Business, Neither Quick Nor Sure

In a striking lack of originality, every new service above is in some way a designer imposter of iTunes, which sells songs for 99 cents each and albums for $9.99.

SJ Mercury News: A former outlaw, Napster goes legit

The Napster brand and kitty logo now adorn an online music service the record industry first envisioned as the anti-Napster.

I’m preparing a big post comparing the features and usage restrictions of the various legit download services for later today. Stay tuned.

Wired News: E-Vote Protest Gains Momentum

“My concern and I think the concern of the students is to focus attention on electoral fraud. The copyright stuff is a sideshow,” he said. “If what the memos suggest is true, this makes hanging chads look like state-of-the-art (election technology).”

Ernest Miller is all over the Diebold/Swarthmore/Why War story.

The US Court of Appeals for the Ninth Circuit ruled today in Weber v. Jones that California’s decision to certify the use of touchscreen electronic voting machines which lack a paper audit trail does not violate the US Constitutional, even though such machines produce unverifiable results.
Election Law Blog: Ninth Circuit Holds that Use of Touchscreen Voting System without paper trail does not violate United States Constitution.

The US Court of Appeals for the DC Circuit upheld an FCC rule, over a challenge by the Consumer Electronics Association, and held that the FCC has the authority to require that all television sets (and certain other devices, like VCR’s) include a digital tuner and the capability to decode digital television broadcasts by the end of 2006.
AP: Court Upholds FCC Digital TV Ruling

The Librarian of Congress determined that the following four classes of works are exempt from the DMCA prohibition against circumvention of technological measures that control access to copyrighted works:

(1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email.
(2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
(3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.
(4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read-aloud function and that prevent the enabling of screen readers to render the text into a specialized format.

This rule will be in effect from October 28, 2003 until October 27, 2006.
Also: Statement of the Librarian of Congress on the Anticircumvention Rulemaking, Determination of the Librarian of Congress and Text of the Regulation, The Recommendation of the Register of Copyrights
Coverage and Analysis:
Ernest Miller has the motherlode of links.
Edward Felten: “It is abundantly clear by now that the DMCA has had a chilling effect on legitimate research related to access control technologies.”
Derek Slater: “Not a whole lot of change.”
bIPlog: Copyright Office Releases DMCA Exemption Hearing Ruling
EFF: Librarian of Congress Fails Public Interest in Copyright Regulation. “The Librarian of Congress today continued to disregard consumers’ rights and denied exemptions to copyright law related to consumers’ use of CDs and DVDs that they legally purchase.”
Seth Finkelstein: DMCA censorware exemption win! How sweet it is!
IP Justice: US Copyright Office DMCA Ruling Issued Consumers Still Unable to Make Lawful Use of Digital Media.
Wired News: New Ways to Skirt DMCA … Legally!

Politech: An insider’s analysis of the Senate’s anti-spam bill
NY Times: Big Companies Add to Spam

But the torrent of spam that is flowing into people’s electronic mailboxes comes not only from the sewers but also from the office towers of the biggest and most well-known corporations.

. The CAN-SPAM Act which passed the Senate last week will not regulate or abate this “white collar” spam.
Wired News: Spam Pitches Are Mutating Faster

Newsweek technology columnist Stephen Levy discusses the problems with Diebold and electronic voting: Black Box Voting Blues

The best minds in the computer-security world contend that the voting terminals can’t be trusted. Listen, for example, to Avi Rubin, a computer-security expert and professor at Johns Hopkins University who was slipped a copy of Diebold’s source code earlier this year. After he and his students examined it, he concluded that the protections against fraud and tampering were strictly amateur hour. “Anyone in my basic security classes would have done better,” he says. The cryptography was weak and poorly implemented, and the smart-card system that supposedly increased security actually created new vulnerabilities. Rubin’s paper concluded that the Diebold system was “far below even the most minimal security standards.” Naturally, Diebold disagrees with Rubin. “We’re very confident of accuracy and security in our system,” says director of Diebold Election Systems Mark Radke.

In the link above, there is a link to a Newsweek radio story which interviews Levy and Congressman Rush Holt (D-NJ) who introduced Voter Confidence and Increased Accessibility Act of 2003 (HR 2239). Holt says: I’m sorry to say that some people see this as a partisan matter. There is no partisan intentions about this [legislation]. “It is very urgent [that the voting process is modernized]. [Voting] is the central act of a democracy… The level of suspicion, skepticism, distrust is really high… that has to be addressed.”

The Center for Democracy and Technology has posted Setting the Record Straight: An Analysis of the Justice Department’s PATRIOT Act Website in order to debunk some of the claims that the Justice Department lifeandliberty.gov site makes about the innocuousness of the PATRIOT Act.

Boston Globe: Student at BC settles with music industry

The student reached an out-of-court settlement with a recording industry trade group and dropped her motion to quash a subpoena that had sought her name and address. She identified herself to the recording industry, but court papers still refer to her as Jane Doe.
The American Civil Liberties Union and a private lawyer represented the woman without charge, arguing that the subpoena violated her right to free speech and due process, after Boston College said it planned to reveal her identity.
But the student grew weary of the lawsuit and ended it by agreeing to pay a few thousand dollars without admitting or denying wrongdoing, said her lawyer, David Plotkin, an associate with the Boston firm of Prince, Lobel, Glovsky & Tye. He would not reveal the precise amount of the settlement, but said it was generally in line with previous file-sharing settlements of $5,000 or less.

I’ve been blogging quite a lot lately, but much of that has been over here, which is not quite open for business yet. I still need to name it, move it to its own domain, find its voice and bring in the other group-blawggers, but I have been and will continue to be posting about more tech/ip law-related topics there.

The FCC is expected to rule soon on the “Broadcast Flag” proposal, which would require all digital television-compatible devices (including televisions, tuners and multimedia computers) to include technology that would restrict uses of digital programming received over the air.
NY Times: Critics Press Case on TV Privacy Rules

Federal regulators plan as soon as this week to adopt rules meant to keep people from copying digital broadcasts of television shows and movies and distributing them on the Internet, government officials and industry lobbyists say.

Salon: Hollywood to the computer industry: We don’t need no stinking Napsters!

Fearful of piracy, the studios want the federal government to legislate how computers are made. Critics say such interference signals the end of the line for digital innovation.

Wired News: A Case of Piracy Overkill? 

Critics of proposed Federal Communications Commission rules designed to prevent consumers from redistributing copies of digital television shows on the Internet say the move won’t stop piracy but will curtail technological innovation and the “fair use” of content.

Reuters: Feds to Fight Digital TV Piracy 

Lawmeme’s James Grimmelman wonders How Direct is Too Direct When It Comes to Hyperlinks to the Diebold memos? “Here’s a link to a site that links to a site that links to a site that links to a site that links to a site with the memos. Whoops, that’s the Diebold home page.”

Last week, Amazon.com <a href=‘http://phx.corporate-ir.net/phoenix.zhtml?c=97664&p=IROL-NewsText&t=Regular&id=462057&">unveiled a new feature, Search Inside the Book, which allows shoppers to search the full text of over 120,000 books. Searchers are allowed to browse through the 5 pages surrounding the search term.
Wired Magazine: The Great Library of Amazonia. This type of search on this scale has never been so easily available before and it makes finding relevant information faster and easier.
However, the Authors Guild fears this feature will hurt sales and that existing publishing contracts do not grant the publishers the rights to allow such uses: <a href=http://www.authorsguild.org/news/amazon_launches_full.htm">Amazon’s New Database Likely to Help Sales of Some Works, May Undermine Others. The Guild worries that: “A student could easily grab the relevant chapter or two out of a book without paying for it.” Perhaps Barnes and Noble should not allow its patrons to sit around in stores and read entire relevant chapters. University libraries should not have reference books available on reserve, so that students can easily read the relevant chapter or two out of a book. NY Times: Amazon Offer Worries Authors
Ernest Miller wonders how the precedent of NY Times v. Tasini (publishers were not allowed to include in news databases articles written by freelancers without getting specific permission) would apply to existing publishing contracts.

Declan McCullagh speaks with University of Ottawa Law professor Michael Geist about Canadian copyright law applied to technology: Cyberpiracy north of the border.

Q: Can Canadians legally download copyrighted music from peer-to-peer networks?
A: The short answer is: Nobody knows for sure. But the issue is far murkier than in other jurisdictions like the United States. The key provision in Canada’s copyright legislation is a private copyright exemption that lets Canadians make private copies for noncommercial use. The way we justify the exemption is by way of a levy that applies to blank media such as blank CDs and blank audio cassettes.

Attorney General Lockyer Wins First-Ever State Lawsuit Against Spammer. The state of California won a $2 million judgment against PW Marketing and its owners Paul Willis and Claudia Griffin. In addition to the monetary judgment, the state won injunctive relief, which it intends to use as a model for future anti-spam actions. The defendants are prohibited from:

• Sending unsolicited commercial emails.
• Disguising their identity by sending email that appears to originate from an email address that is neither the actual address nor the address where replies can be received.
• Sending emails that contain false or misleading information about the country or Internet mail server from where the advertisement is sent.
• Accessing and using the computers, computer systems or computer networks of other persons or businesses without their permission or in violation of their terms of service.
• Using false or misleading information to register for an email address, Internet service or Internet domain name.
• Using, transferring or otherwise making available to other persons email address lists compiled for the purpose of sending spam.
• For 10 years, owning, managing or holding any economic interest in any company that advertises over the Internet, without first providing written notice to the Attorney General.

This judgment was based on California’s existing anti-spam law, which will be strengthened on Jan. 1, 2004 from opt-out to opt-in and allow a private right of action for individuals.

The U.S. Senate realized that spam is not just a mere inconvenience, but a burden on interstate commerce and passed (97-0) S. 897, a bill to regulate spam . Unfortunately, if enacted into law, this bill would not only do little to effectively curtail spam, but could hamper state anti-spam actions.
My first problem with this bill is not unique to this bill, but is one shared by most modern legislation. This bill is titled the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003′, or the ‘CAN-SPAM Act of 2003.'” (§1). Please, make the unabated spread of awkward cutesy acronyms stop already.
The other shortcomings of this act are significant and substantive. The key problem is that in §2(b)(3), the Senate determines that it is sufficient protection only that consumers are given the ability to opt-out.:”recipients of unsolicited commercial electronic mail have a right to decline to receive additional unsolicited commercial electronic mail from the same source.” In other words, companies are free to send unsolicited email, so long as they provide a functional, clear and conspicuous unsubscribe option. The burden for avoiding unwanted commercial email falls on the individual to unsubscribe, rather than providing effective constraints to prevent marketers from sending unwanted email. Users have to affirmatively execute their right to decline further unsolicited commercial email with each entity who sends spam.
Unsolicited commercial electronic mail and affirmative consent are defined too imprecisely to effectively regulate spam. In section §3(1), the bill defines affirmative consent:

(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; and
(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.

Under this definition, it seems that a website or email list builder is not prevented from selling their lists of addresses, so long as the recipients were given “clear and conspicuous notice” that their addresses would be released to a third party. Although §9 of the bill recommends creating a “do-not-spam” list, its effectiveness will be undermined because the bill allows marketers to share email lists to other parties, with not constraints other than the requirement to provide “clear and conspicuous notice.” Then, the affected individual email users will have to opt-out of email from every sender.
In §3(2), the bill defines “Commercial electronic mail message” as: “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” However “inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.”
Under this definition, a message whose primary purpose is to remind people that Daylight Savings Time ends this weekend can be sponsored by Besco clock and watch company (a merciless spammer) and include a link its website. I’m sure that the penis enlargement pill marketing industry could easily find a message whose primary purpose is non-commercial. This would exempt this sort of message, since it is “non-commercial,” from the regulations.
This bill does not provude a private right of action. Instead, the FTC (§7), State Attorney Generals (§7(e)) and ISPs (§7(f)) are able to act against spammers.
This bill preempts state anti-spam statutes, except for those that prohibit falsity or deception. So, stronger specific anti-spam laws, like California’s will be preempted by this weaker federal legislation. Regulation of spam under non-specific consumer protection laws, like New York;s, can continue.
Washington Post: Senate Votes 97-0 To Restrict E-Mail Ads
Internet.com: Senate Anti-Spam Bill Ups Ante for House Action
In related news, the Pew Internet & American Life Project released a new report: Spam: How it is hurting email and degrading life on the Internet
Wired News: Survey Confirms It: Spam Sucks
NY Times: A Change of Habits to Elude Spam’s Pall

Music Dish: Money In Music: The Cold-Cash Facts About Music Licensing

Music can be used in four broad categories under copyright law: Adaptation, Recording, Reproduction, and Public Performance. Depending on where and how someone is going to use a song, there are mechanical rights and synchronization rights that have to be negotiated, and the various parties involved may include the songwriter, publisher, and record company, usually holder of the master rights.

Targeting Diebold with Electronic Civil Disobedience
Wired News: Students Fight E-Vote Firm

Diebold has been sending out cease-and-desist letters to force websites and ISPs to take down the memos [describing the company’s awareness of the security flaws in its e-voting machines], which the company says were stolen from its server in violation of copyright law. It has been using the Digital Millennium Copyright Act, or DMCA, to force ISPs to take down sites hosting the memos or sites containing links to the memos.

Ernest Miller: Swarthmore Actively Opposes E-Civil Disobedience Campaign

The U.S. Senate realized that spam is not just a mere inconvenience, but a burden on interstate commerce and passed (97-0) S. 897, a bill to regulate spam . Unfortunately, if enacted into law, this bill would not only do little to effectively curtail spam, but could hamper state anti-spam actions.
My first problem with this bill is not unique to this bill, but is one shared by most modern legislation. This bill is titled the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003′, or the ‘CAN-SPAM Act of 2003.'” (§1). Please, make the unabated spread of awkward cutesy acronyms stop already.
The other shortcomings of this act are significant and substantive. The key problem is that in §2(b)(3), the Senate determines that it is sufficient protection only that consumers are given the ability to opt-out.:”recipients of unsolicited commercial electronic mail have a right to decline to receive additional unsolicited commercial electronic mail from the same source.” In other words, companies are free to send unsolicited email, so long as they provide a functional, clear and conspicuous unsubscribe option. The burden for avoiding unwanted commercial email falls on the individual to unsubscribe, rather than providing effective constraints to prevent marketers from sending unwanted email. Users have to affirmatively execute their right to decline further unsolicited commercial email with each entity who sends spam.
Unsolicited commercial electronic mail and affirmative consent are defined too imprecisely to effectively regulate spam. In section §3(1), the bill defines affirmative consent:

(A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; and
(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.

Under this definition, it seems that a website or email list builder is not prevented from selling their lists of addresses, so long as the recipients were given “clear and conspicuous notice” that their addresses would be released to a third party. Although §9 of the bill recommends creating a “do-not-spam” list, its effectiveness will be undermined because the bill allows marketers to share email lists to other parties, with not constraints other than the requirement to provide “clear and conspicuous notice.” Then, the affected individual email users will have to opt-out of email from every sender.
In §3(2), the bill defines “Commercial electronic mail message” as: “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” However “inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.”
Under this definition, a message whose primary purpose is to remind people that Daylight Savings Time ends this weekend can be sponsored by Besco clock and watch company (a merciless spammer) and include a link its website. I’m sure that the penis enlargement pill marketing industry could easily find a message whose primary purpose is non-commercial. This would exempt this sort of message, since it is “non-commercial,” from the regulations.
This bill does not provude a private right of action. Instead, the FTC (§7), State Attorney Generals (§7(e)) and ISPs (§7(f)) are able to act against spammers.
This bill preempts state anti-spam statutes, except for those that prohibit falsity or deception. So, stronger specific anti-spam laws, like California’s will be preempted by this weaker federal legislation. Regulation of spam under non-specific consumer protection laws, like New York;s, can continue.
Washington Post: Senate Votes 97-0 To Restrict E-Mail Ads
Internet.com: Senate Anti-Spam Bill Ups Ante for House Action
In related news, the Pew Internet & American Life Project released a new report: Spam: How it is hurting email and degrading life on the Internet
Wired News: Survey Confirms It: Spam Sucks
NY Times: A Change of Habits to Elude Spam’s Pall

Radio stations who stream over the Internet a simulcast of their broadcast signals must pay royalties for the Internet streaming, although they are exempt from paying those royalties for the terrestrial broadcasts. On Friday, the 3rd Circuit Court of Appeals decided Bonneville International Corp. v. Peters and denied to overturn the <a href=“http://www.fcc.gov'>FCC rule which requires broadcasters to pay royalties for webcasted programs. This decision upholds District Judge Berle M. Schiller’s August 2001 ruling, which granted summary judgment to the defendant US Copyright Office.
Law.com:  Radio Stations Must Pay Royalties for Webcasting
Instead of seeing copyright holders receive a new stream of royalties, expect radio stations to merely stop streaming their live broadcasts over the Internet.

Reuters: TV on DVD: What’s the Difference? Some studios are too cheap to pay to relicense music for the DVD release.

Until this week, I always enjoyed reading Gregg Easterbrook’s erudite football column, Tuesday Morning Quarterback, both on ESPN and when it used to be on Slate. So instead, and in the spirit of TMQ, here is some haiku about the Easterbrook scandal:
Easterbrook blog post:
Jewish execs are greedy,
violent films bad.
A poor choice of words,
at best. At worst, offensive,
anti-semitic.
Foot planted in mouth,
Easterbrook fired by Mouse
columns disappear
Other opinions:
Volokh, Frank Easterbrook.

The person sitting next to me in class is checking her voice mail on her cell phone during class. Is that any worse than checking email, surfing Friendster (very popular on the screens that I can see), playing solitaire or, um, blogging? I think so.

Spam Laws has information about pending and enacted Spam legislation in the US, EU and other countries, as well as selected judicial opinions. This is a great resource.

Metropolitan News-Enterprise reports on the California Court of Appeal for the First Appellate District ruling inBarrett v. Rosenthal: Web Poster Who Republishes Defamation May Be Liable:

A recent federal law that immunizes users of interactive computer services from liability for content authored by others does not abrogate traditional liability for republication of material that one knows or reasonably should know to be false and defamatory, the First District Court of Appeal has ruled.

(via How Appealing)

Sensitive personal financial information belonging to Massachusetts Governor Mitt Romney recently ended up on sale online for $125, exposing the inner workings of a credit reporting network that operates largely on an honor system and is rarely policed. As part of a story on the vulnerability of personal financial data, The Boston Globe purchased Romney’s TransUnion credit report — listing his credit card accounts, credit card numbers, credit limits, and payment history — from a Colorado company calling itself Goldshield Inc.

NY Times: Record Industry Warns 204 Before Suing on Swapping

A sample of the letter provided by the industry association tells recipients that record companies “intend to file a lawsuit against you shortly for copyright infringement” because “we have gathered substantial evidence” of illegal activity. The letter encourage the recipient to “preserve evidence that relates to the claims against you,” including all music downloads. But it goes on to warn recipients that “the evidence necessary for the record companies to prevail in this action has already been secured.”

Reuters: RIAA Croons a New Warning Tune
Sen. Norm Coleman (R-MN) discusses The RIAA and the Music Piracy Debate with Washington Post readers.

Wired News: Senators Want JetBlue Probe after JetBlue violated its own privacy policy and released passenger data, without notifying those passengers, to Pentagon contractor Torch Concepts for a security study.

Governmental Affairs Committee chairwoman Susan Collins (R-Maine), ranking member Joe Lieberman (D-Connecticut) and Armed Services Committee ranking member Carl Levin (D-Michigan) wrote Defense Secretary Donald Rumsfeld, asking whether the Pentagon complied with the Privacy Act, which requires that government agencies and their contractors notify the public when a system of records is created.

Governmental Affairs Committee chairwoman Susan Collins (R-Maine), ranking member Joe Lieberman (D-Connecticut) and Armed Services Committee ranking member Carl Levin (D-Michigan) wrote Defense Secretary Donald Rumsfeld, asking whether the Pentagon complied with the Privacy Act, which requires that government agencies and their contractors notify the public when a system of records is created.

B

Nearly anyone who has used internet e-mail in the last four years is aware that unsolicited commercial e-mail (spam) is becoming a major problem for internet users. On average, each e-mail user in the US receives 30 spam messages per day, up from 14 per day last year. Fighting spam could cost companies as much as $1 billion this year and rise to $20 by 2007. Some individuals simply deal with the unwanted annoyance of spam and use their delete keys. Others work to keep technological filters up to date in order to ensure that they see as little spam as possible. Now, the lawyers are getting involved.
Stephen Kline, an Assistant Attorney General for the Internet Bureau in the Office of the New York Attorney General, spoke at the law school yesterday about fighting the e-mail spam problem. Kline is one of the four attorneys in the Internet Bureau who prosecute cybercrimes and online fraud. This post is based on my notes from Kline’s talk.
Cases
Interestingly, the two main cases that Kline discussed— one civil, one criminal— both originated in the Buffalo area. In a civil action, the Attorney General sued MonsterHut in and won an injunction, which prevents Monsterhut from “further engaging in any of the fraudulent, deceptive and illegal acts and practices pertaining to representations of ‘opt-in’, ‘opt-out’ or the ‘permission-based’ nature of their protocols or the collection and use of their email data.”
Howard Carmack, the Buffalo spammer, is the first person the Attorney General has prosecuted under New York’s new identity theft law (NY PL §190.78). Carmack was arrested and arraigned on felony criminal fraud charges, including Forgery in the Second Degree, Criminal Possession of a Forgery Device and two counts of Falsifying Business Records in the First Degree, in addition to misdemeanor identity theft.
Carmack is alleged to have sent spam from his home using a series of Earthlink 30-day free trial accounts. As soon as Earthlink found that Carmack was using an account to spam, they would shut it down and Carmack would open a new account. Enough spam email messages with forged headers were sent through Earthlink’s Buffalo-area mail servers so that legitimate customer mail sent through those servers was delayed for as much as 8 hours. Carmack allegedly obtained P.O. boxes, credit cards and telephone numbers using stolen identities, one of which was his institutionalized brother’s. A week before his arrest, Earthlink obtained a $16 million civil judgment against Carmack in a Federal court in Atlanta.
Investigating these spam cases can be difficult. Discovery can turn up thousands of emails. However, few of these spammers are as shrewd as the most sophisticated of criminals and most of them leave a traceable money trail.
Authority to combat spam
Unlike 38 other states, New York has no specific anti-spam legislation.¹ Instead, the Attorney General uses existing consumer laws to go after spammers, since the Internet Bureau is part of the Consumer Complaints department. The statutory authority includes Gen. Bus. Law §349 (Consumer Protection from Deceptive Acts and Practices) and Exec. Law §63(12) (grants state Attorney general power to enjoin fraudulent or deceptive acts and practices) and PL § 190.77 (Criminal Identity Theft). The Attorney General has jurisdiction in any case where a business action has a negative effect on New York consumers and NY consumers have suffered direct harm. The key problem hampering anti-spam investigation is not a lack of jurisdiction, but resources. With only four attorneys, the Internet Bureau tries to litigate or prosecute only those cases that will have a broad or precedential impact.
Even with these limitations on resources, New York is one of only three states actively pursuing spam. Although 38 states have anti-spam laws, only 2 of those have active state anti-spam prosecution: California and Washington. At the Federal level, the FTC is working against spam under existing Federal general consumer protection laws, like New York’s Attorney General. A federal-state-local anti-spam task force started working this year, but its activities are limited since most states have yet to devote significant resources to fighting the spam problem.
Federal and state authorities have two ways to deal with spam: legislation, prosecution. Technical solutions are also needed to cut down on spam. Neither legislation nor prosecution alone will solve the problem, but a combination of both should curtail excessive and abusive spam.
One of the most contentious issues involved in drafting anti-spam legislation is defining spam. The DMA wants to limit the definition to only fraudulent or forged messages. Anti-spam activists prefer to define spam as any and all unsolicited commercial e-mail where the recipients have not specifically and explicitly opted in. Finding a good balance for the definition of spam that is neither too restrictive nor too lenient is crucial to actually curtailing the spam problem. Legitimate e-mail marketers will abide by regulations, while the more egregious spammers will likely flaunt any law. So legislation will only serve to regulate legitimate e-mail marketers, since the worst spam can already be dealt with using existing consumer protection and anti-fraud laws.
Some of the state statutes, including Utah’s, provide for a private right of action against spammers. While class action suits might seem like a good idea, because so many people are affected in the same way, there is really no point. None of these spammers are making enough money to make a class action suit worthwhile. The problem with spam is that one person with a cheap computer, a dial-up account can affect millions of consumers.
Not all of the consumers who are defrauded by spammers will file consumer complaints with the state or FTC. Even though there may be causes of action under consumer anti-fraud laws against some companies who advertise their products through spamming, prosecuting under these laws may be difficult. The consumer who purchased 5 bottles of penis enlargement pills and got a harmless herbal supplement is not likely to file a fraud complaint, since they’re probably not going to admit to buying those pills (or demonstrate proof that they were not effective.) The consumer who got slammed with fraudulent credit card charges after signing up for a porn site’s “free trial account” is also not likely to contest those charges.
These actions are a start in combating spam and hopefully represent part of a broader trend towards using the law to protect consumers and businesses from these parasites.
—
¹A bill to expand the statewide “no call sales registry” to include unsolicited e-mails has passed in the Senate and is in committee in the Assembly.

Wired News: Fighting to Preserve Old Programs 

[Brewster] Kahle and his nonprofit Internet Archive have petitioned the U.S. Copyright Office about the Digital Millennium Copyright Act, or DMCA, which governs the circumvention of anti-piracy measures. Kahle’s organization is seeking exemptions from DMCA provisions that prohibit the archiving of software titles. If the Copyright Office says no, Kahle fears millions of programs eventually will be lost forever.

The Internet Archive filed a DMCA <a href=“http://www.copyright.gov/1201/2003/comments/025.pdf>exemption requestwith the Copyright Office requesting exemptions in order to archive digital copies of software.

News.com: Are search engines confusing surfers?

Last year, the FTC notified Web operators–including Yahoo-owned AltaVista and America Online–that they must clearly mark advertisements that appear within their search results. Though some reform trickled through the industry, questions still linger about how well companies label the commercial listings that appear when Web surfers delve into their indices.

Do commercial search engines have a public responsibility to separate sponsored advertising links from other search results? Should the FTC regulate search engines?

Clay Shirky: File-sharing Goes Social. Shirky expects file sharing to become more like traditional sharing of physical media, between smaller groups of people in trust networks.

The Wall Street Journal reports on how EU privacy laws are more protective than in other countries: Europe’s New High-Tech Role: Playing Privacy Cop to World

Fundamental philosophical differences separate the U.S. and European approaches. Europe has defined privacy as a human right, while in the U.S. data-protection laws can quickly run afoul of free-speech protections enshrined in the Constitution. The dichotomy is most apparent in direct marketing. Europe’s privacy laws essentially force businesses to get permission before they make telemarketing calls to their customers. In the U.S., a federal court in Denver recently blocked a national do-not-call registry from taking full effect this month, saying it violates a company’s First Amendment rights. An appeals court put that ruling on temporary hold Tuesday, letting the registry proceed until the court makes a final ruling

The Guardian: Murdoch chief threatens to sue BBC

“We don’t believe the BBC has the right to provide an unencrypted signal with our programming,” said Peter Chernin, who is chief operating officer of News Corp.
“We are not happy and we are also sort of shocked. The BBC is not some renegade company. It’s a public trust in a society that does have copyright laws and one top of that it is one of the great content producers. We think that what they are doing is wrong,” he added.

With an encrypted satellite signal, where only subscribers in the UK who subscribe to receive the signal could view the BBC channels, because the BBC would only sell subscriptions to satellite customers in the UK. When the signal is unencrypted, any satellite television viewer in Europe could pick up the BBC feed, subscriber or not. Shifting to unencrypted distribution would save the BBC some of the £85m it pays to BskyB, which is partially owned by News Corp., for encrypted satellite distribution.

In the NY Times, Amy Harmon writes: Smile, You’re on Candid Cellphone Camera

“The technology is really testing the traditional understanding of the zone of privacy,” said David Sobel, a lawyer with the Electronic Privacy Information Center. “At some point, courts might be inclined to say there are limits to the concept of waiving your privacy rights when you’re in public.”

Some online retailers fear that provisions of the USA Patriot Act will make consumers less likely to shop online and, as a result, are changing their privacy policies in order to retain less customer data. NY Times: Patriot Act Curbing Data Retention

At the core of his concerns is Section 215 of the Patriot Act. Under that section, businesses, organizations or citizens can be compelled by the Federal Bureau of Investigation, if it has a federal judge’s order, to hand over any records the F.B.I. deems relevant to an investigation of terrorism or espionage, as long as the investigation is not based solely on actions already protected by the Constitution’s free speech provisions.

An unidentified reader wrote in to follow up on my earlier post about lawyers and prestige:

What no one has mentioned in this discussion is the observation that hierarchy and status not only exists in the social world surrounding the law, but also exists internal to the law itself. For example, certain types of law (e.g. constitutional or federal) is supreme over other law (e.g. state or municipal), and the pronouncements of certain courts (e.g. U.S. Supreme or DC Circuit En Banque) are more authoritative than the pronouncements of other courts (e.g. District Court or panel of the Sixth Circuit). Moving away from the “primary sources” of law, hierarchy exists in the secondary literature as well. An argument advanced in “Wright and Miller Federal Practice” or the Harvard Law Review is more authoritative than one presented in “Gilbert’s legal Outlines” or in a lesser law review. In fact, one of the surest signs of a novice lawyer is that her written briefs demonstrate a lack of familiarity with the hierarchical structure of the law — e.g. citing certain courts when others should be cited. It is easy to imagine that this status consciousness spills outward from the law into the social world surrounding it. If you would prefer to cite the DC Circuit Court of Appeals rather than a Louisiana state court in a legal brief, you may come to prefer hiring a former DC Circuit clerk rather than a clerk from a Louisiana state court.

Hierarchy is an innate feature of the American court system and a prerequisite for a system of appellate review. While I think the relative authority of treatises depends as much on innate quality more than any other factor (Wright and Miller are more authoritative than Glannon because of the text), the relative quality and authority of law reviews is a function of prestige. Harvard Law Review (and the other top law reviews) include more authoritative articles because they have their pick of top scholarship to print, and the result is a feedback cycle reinforcing the prestige of the top law reviews.
Although Eugene Volokh advises bloggers to refrain from posting email, I am posting this email in its entirety not only because it is cogent and succinct, but also because I would like to know who sent it.

A word of advice: always remember to check your camera to make sure you have charged batteries and a memory card (or film). Only after climbing to the top of Memorial Arch at Grand Army Plaza did I realize that the batteries in my camera were quite dead. The arch was open for Open House New York.
Satan’s Laundromat’s Mike was at the arch earlier with a working camera.
Instead of photos from the arch, here is a photo of the Little Red Lighthouse, from a couple of weeks ago, courtesy of my dad:

Wow, comment spam hit with a vengeance this weekend. Some spammers must have just developed a new tool for automated comment spamming. As a result, I’ve closed comments on all but the most recent posts here, which should not only cut down the comment spam, but also the random, often unintelligible comments that people post to the old entries.
TalkLeft on Comment Spam.
Jay Allen’s MT Blacklist tool should help deal with the comment spam problem, when it is released tomorrow.

Barely two days after Princeton grad student J. Alex Haldermann released a report on SunnComm’s CD copy-protection scheme, SunnComm is threatening to sue under the DMCA. SunnComm CEO Says Princeton Report Critical of its MediaMax CD Copy Management Technology Contains Erroneous Assumptions and Conclusions

SunnComm believes that Halderman has violated the Digital Millennium Copyright Act (DMCA) by disclosing unpublished MediaMax management files placed on a user’s computer after user approval is granted. Once the file is found and deleted according to the instructions given in the Princeton grad student’s report, the MediaMax copy management system can be bypassed resulting in the copyright protected music being converted or misappropriated for potentially unauthorized and/or illegal use. SunnComm intends to refer this possible felony to authorities having jurisdiction over these matters because: 1. The author admits that he disabled the driver in order to make an unprotected copy of the disc’s contents, and 2. SunnComm believes that the author’s report was “disseminated in a manner which facilitates infringement” in violation of the DMCA or other applicable law.

EFF senior staff attorney Fred von Lohmann reacts: “What more proof do you need that the DMCA is chilling legitimate research? In America today, scientists shouldn’t have to fear legal action for publishing the truth. Based on the apparent weakness of its technology, perhaps SunnComm should be hiring more Princeton computer scientists, instead of threatening to sue them.”
More at Copyfight

NY Times: Record Companies Sue New Jersey Flea Market

a group of record companies is suing the owners of the market, where, they say, more than 15,000 counterfeit CD’s have been seized during raids over the past three years. The industry group says the Columbus market and other flea markets knowingly act as havens for thousands of illegal discs and cassettes each year and deprive record companies of millions in sales.

A Federal District Judge in Minnesota ruled that VoIP (Voice over Internet Protocol) provider Vonage is not a telephone company and does not need be regulated like a conventional telephone provider. The decision reverses a ruling by Minnesota’s Public Utilities Commission which criticized Vonage for failing to file a detailed 911 service plan. Should VoIP services be regulated like standard telephone services?
NY Times: Judge Gives Leg Up to Internet Calls

Parents in Oak Park, Illinois filed a class-action lawsuit against the local school district in order to prevent the district from using Wi-Fi wireless networking in the schools. The complaint alleges that the district “failed to adequately examine and assess the potential health risks that wireless LANs pose to humans, particularly children who are still growing,” “breached the duty of care they owe to the children” and “exposed the children to unreasonably dangerous health risks caused by constant exposure to high frequency electromagnetic radiation.” The plaintiffs “have collected more than 400 scientiic articles, commentaries and references outlining health risks from low intensity RF exposure.”

All in all, an excellent show last night at MSG, perhaps the loosest and most relaxed that I’ve seen this band.
2+2=5
Sit Down. Stand Up.
Where I End and You Begin
Kid A
Backdrifts
Morning Bell
My Iron Lung
I Might Be Wrong
Lurgee
Sail To The Moon
Paranoid Android
Punch Up At a Wedding
Go To Sleep
The Gloaming
Idioteque
Fake Plastic Trees
There There
Encore:
You And Whose Army?
The National Anthem
Wolf at the Door
How To Disappear Completely
Encore 2:
Karma Police
True Love Waits
Everything In Its Right Place
The good:

• Although the setlist mainly featured songs from Hail to the Thief and Kid A, the older songs were much appreciated.
• Fake Plastic Trees, where the sustain of electric guitars and Thom’s voice filled the Garden.
• 2+2=5 as the opener.
• Thom mugging for the camera (and the crowd response) during You and Whose Army
• The driving rhythm of The National Anthem
• Karma Police -> True Love Waits

The not-so-good:

• The sound at the Garden, at least from where I was sitting, was muddy, with the bass suffering the worst.
• Except for two instances (The Gloaming -> Idioteque and Karma Police -> True Love Waits), the flow of the set suffered because of all the shifting around of instruments. A veritable swarm of roadies came on between each song to outfit Ed, Thom and Johnny with whatever guitars, keyboards or noisemakers necessary for each song. Instead of carrying the crowd’s enthusiasm from song to song, the show plodded forward deliberately, especially where energetic new songs followed old favorites.

Photos: Bluejake
Setlist: 58hours
Reviews: Green Plastic

Barely two days after Princeton grad student J. Alex Haldermann released a report on SunnComm’s CD copy-protection scheme, SunnComm is threatening to sue under the DMCA. SunnComm CEO Says Princeton Report Critical of its MediaMax CD Copy Management Technology Contains Erroneous Assumptions and Conclusions

SunnComm believes that Halderman has violated the Digital Millennium Copyright Act (DMCA) by disclosing unpublished MediaMax management files placed on a user’s computer after user approval is granted. Once the file is found and deleted according to the instructions given in the Princeton grad student’s report, the MediaMax copy management system can be bypassed resulting in the copyright protected music being converted or misappropriated for potentially unauthorized and/or illegal use. SunnComm intends to refer this possible felony to authorities having jurisdiction over these matters because: 1. The author admits that he disabled the driver in order to make an unprotected copy of the disc’s contents, and 2. SunnComm believes that the author’s report was “disseminated in a manner which facilitates infringement” in violation of the DMCA or other applicable law.

EFF senior staff attorney Fred von Lohmann reacts: “What more proof do you need that the DMCA is chilling legitimate research? In America today, scientists shouldn’t have to fear legal action for publishing the truth. Based on the apparent weakness of its technology, perhaps SunnComm should be hiring more Princeton computer scientists, instead of threatening to sue them.”
More at Copyfight

US District Judge John Gleeson spoke at the law school today, at the invitation of the ACS, about the Ashcroft Justice Department’s death penalty policy. Faced with the decision of eating lunch or taking notes, I went with the (free) lunch, so I don’t have the complete recollection that would enable me to write a coherent post. The key theme Judge Gleeson addressed was that local control and discretion is good, while uniform national standards imposed by the Attorney General will lead to fewer criminal convictions, inefficient use of prosecutorial resources and overburdening the federal courts.
This sentence is a placeholder for a more complete discussion of the speech.

If it wasn’t obvious at the beginning of the recall, California has definitively taken the title of most embarrassing political process from Florida. Who’s going to top this circus?

Howard Bashman posted 20 Questions for Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit. As with all of Bashman’s previous interviewees, Birch’s answers are interesting and well worth reading, particularly this section on copyright law:

To quote my good friend, Professor L. Ray Patterson: “There is no legal concept so important to so many that is understood by so few as copyright.” To that I say AMEN! Copyright affects core activities of a democratic republic — learning and communication. Copyright places limits on what, where and when citizens may read, see and hear. But those limits are carefully circumscribed. Copyright was born out of censorship in England and the response to that censorship, the statute of Anne, was incorporated into our Constitution (Article I, Section 8, Clause 8). That clause together with the complementary free speech clause of the First Amendment stand as a bulwark in protecting the free flow of ideas in a free society. In our society of free men (and women) and free markets, the necessity for informed citizens and consumers is essential. Uninhibited access to information and the ability to process it, critically, is central to our way of life — politically and economically. But therein lies the problem, the marketing monopoly that inheres in copyright represents a conflict between two fundamental tenets of American society: free speech (and the concomitant right to hear it) and free enterprise. With the advent of the transmission copyright and the technological age of communication and learning, we are called upon to reconcile, balance and harmonize these forces in a manner true to our history and enriching to our future. From a legal standpoint I cannot think of a more challenging and exciting place to be — that is why copyright holds such interest for me. To some degree, the same may be said of trademark, trade secret, and unfair competition law as well. As I tell my clerks — in the law this is “where the action is”! That is why I find the law of copyright so fascinating and why I attempt to stay “current” in that body of law.

Also interesting is Judge Birch’s take on the Supreme Court’s decision in Eldred v. Ashcroft:

The result with Eldred is that it provides a windfall profit for a few monopolists (usually publishers, not creators) that results in a seismic fault in the structure for learning that is the framework for a free society. One can only hope that the Court will realize the error of its ways and correct a fundamental faux pas. Again, my criticism is made with great respect for the Court.

Reuters reports that a federal jury awarded $20 million in damages to market analyst Lowry’s Reports Inc for copyright infringement by broker Legg Mason. Legg Mason paid for a single $700 per year newsletter subscription, but placed that newsletter on its corporate intranet, where 1300 employees could access the newsletter. The jury award included more than $800,000 in contract damages and about $19 million in copyright damages.

LawMeme’s Ernest Miller continues to analyze the ideas and assumptions behind proposals for compulsory licensing for P2P with Compulsory Licensing – More What is Music and Compulsory Licensing – Why Only Music? What types of music should get compensated? If holders of music copyrights should have to grant compulsory licenses to internet sharers, why not holders of book or software copyrights?

“Second generation” CD copy protection debuted last month on R&B singer Anthony Hamilton’s latest Arista release, “Comin’ From Where I’m From.” The copy protection technology does not necessarily protect CDs from being copied. In addition to the CD audio tracks, the disc includes two data “layers” with Windows Media versions of the tracks (one for Windows systems, the other for Mac OS X systems). After a listener has agreed to the disc’s EULA, the listener’s computer will only load the DRM-protected data layers and not the unprotected audio layer. However, Princeton grad student John Halderman has found that MediaMax CD3 Copy-Prevention System offers minimally effective copy protection, since it can be defeated by refusing to accept the EULA, by “holding the shift key every time they insert the CD,” or by using an “unsupported” system, such as those running Mac OS 9 or Linux.
John Halderman: Analysis of the MediaMax CD3 Copy-Prevention System
Boston Globe: Technology that limits CD copies easily bypassed
LawMeme: New Audio CD DRM Defeated by Use of ”SHIFT” Key

Do artists have sole control over how their art may be modified and moved, if their art is in a public space? Artist David Phillips, who created a sculpture park in Boston outside the offices of a company owned by Fidelity Investments, is suing Fidelity Investments in order to “keep his artistic vision intact.” Phillips argues that his work is protected from change under both Federal and Massachusetts law. The Federal law is the Visual Artists Rights Act of 1990, which is codified as 17 U.S.C. 106A. The state law is the Massachusetts Art Preservation Act.
Can Phillips prevail?

Scott Hodes, the Chicago lawyer who handled the Jan Martin case, said there are two keys to the Phillips lawsuit: First, Epstein must show that Phillips is an artist of note with a reputation that could be damaged by the destruction or removal of his work. (Court filings include a list of Phillips commissions dating to 1983.) Second, Epstein must show, through the contract with Fidelity, that he owns the copyright on his work and didn’t do it as a “work for hire,” a term that, Hodes said, grants Fidelity the authority to do what it wants with the art. (Epstein said that Phillips does retain the rights.)

After Verisign broke the internet, ICANN president Paul Twomey sent an open letter to Verisign:

please consider this a formal demand to return the operation of the .com and .net domains to their state before the 15 September changes, pending further technical, operational and legal evaluation. A failure to comply with this demand will require ICANN to take the steps necessary under those agreements to compel compliance with them.

In response, VeriSign Freezes Search Service.
ICANN Watch wonders if Verisign acted in violation of the NASA Act

The University of Ottawa Law & Technology Journal is holding a Comparative IP and Cyberlaw Symposium on October 3 & 4. For those of us not in Ottawa, the program is being webcast.

Reuters: Microsoft Faces Class Action Over Virus Crashes

Microsoft Corp. faces a proposed class-action lawsuit in California based on the claim that its market-dominant software is vulnerable to viruses capable of triggering “massive, cascading failures” in global computer networks.
The lawsuit, filed on Tuesday in Los Angeles Superior Court, also claims that Microsoft’s security warnings are too complex to be understood by the general public and serve instead to tip off “fast-moving” hackers on how to exploit flaws in its operating system.
The lawsuit claims unfair competition and the violation of two California consumer rights laws, one of which took effect earlier this year and is intended to protect the privacy of personal information in computer databases.

The EFF presents two pieces discussing trusted computing, an idea which is largely unfamiliar to me.
Fred Von Lohmann: Meditations on Trusted Computing

In 1641, in his Meditations on First Philosophy, mathematician and philosopher Rene Descartes asked how it is that we can trust our senses. What if, he asked, everything we experience is actually part of a delusion created by an omnipotent demon bent on deceiving us?
It turns out that a similar question has been weighing on the minds of Microsoft, Intel, and a number of other computer companies. How do you know that your computer is actually what it seems? After all, hackers could have broken into your computer and replaced the software on it with software that imitates, in every particular, the software that was on your computer before. To you, things would appear unchanged.

Trusted Computing: Promise and Risk
A straightforward change to the plans of trusted computing vendors could leave the security benefits intact while ensuring that a PC owner’s will always trumps the wishes of those who’ve loaded software or data onto the PC.

NY Times: Your Own Affair, More (VCR) or Less (MP3)

“Consumers are almost totally unaware that different modes of communication carry with them different expectations of privacy and have different rules,” said Paul Glist, a communications lawyer with Cole, Raywid & Braverman in Washington who has represented major cable-television companies. “Every line of business has a different set of regulations, and it really is a maze. There are many times when a company comes to me and they just want to do the right thing and they can’t figure it out. You might have one law saying you have to disclose certain information to law enforcement and another law saying you can’t disclose the information unless other conditions are met.”

AP: PayPal Files Patent Lawsuit Vs. Bank One

In the latest complaint filed Monday, PayPal says it informed Bank One in February of its patent on a process that allowed Internet users to make secure payments and authenticated transactions over a computer network, but the Chicago-based bank’s online bill paying system still violates its patents.

Salon.com: E-mail is broken: “Four Internet pioneers discuss the sorry state of online communication today. The consensus: It’s a real mess.”

Washington Post: Redskins Can Keep Trademark, Judge Rules

U .S. District Judge Colleen Kollar-Kotelly threw out a federal board’s 1999 decision to cancel six highly lucrative Redskins trademarks. She said she was not opining on whether the word “redskin” was insulting or not but concluded that the U.S. Patent and Trademark Office’s board had relied upon partial, dated and irrelevant evidence submitted by the activists.

DC District Judge Kollar-Kotelly: Opinion in Pro-Football, Inc. v. Suzan Shown Harjo, et al.

New York State Attorney General Eliot Spitzer announced a settlement with Yahoo! that will “protect consumers from unwanted email and telemarketing campaigns and ensure that they understand and control marketing solicitations.”
In the Matter of Yahoo! Inc.

ResearchBuzz: USPTO Puts Trademark Dispute Documents Online: “The Trademark Trial and Appeal Board of the US Patent and Trademark Office has put up a Web site containing images of documents available in trademark disputes. It’s available at http://ttabvue.uspto.gov.”  

FindLaw columnist Julie Hilden discusses Anonymity Versus Law Enforcement: The Fight Over Subpoenaing Alleged Downloaders’ Names From Internet Service Providers. Hilden discusses the extent of the DMCA subpoena power, whether the scope of that power conflicts with the First Amendment right to speak anonymously and the importance of the rights to anonymous speech.

The Trademark Blog: CrownPontiacNissan.com – Free speech domain name case:

This decision is somewhat in contrast to those such as the Jews for Jesus, Planned Parenthood and Peta.org decisions, in which use of the per se version of a trademark tends to be actionable.  However, as Thomas Ballock has correctly pointed out to me, in Jews for Jesus and Planned Parenthood, the courts strained to find some form of commercial activity on the part of defendant, usually focusing on defendant’s own agenda.  Here, Ballock’s actions in venting his dispute was seen as non-commercial. 

Today’s developments in the music industry’s battle against file sharers:
Washington Post: Music Industry Will Talk Before Suing

The music industry, criticized for its recent wave of lawsuits aimed at stopping song swapping on the Internet, agreed yesterday to contact future defendants before they are sued and give them a chance to pay a cash settlement or argue that they have been mistakenly accused of copyright infringement.

Wired News: Rappers in Disharmony on P2P

Recording Industry Association of America keeps a united front, but LL Cool J and Chuck D candidly shared their opposing views on file sharing and its effect on the industry. The musicians were invited to testify before the U.S. Senate Committee on Governmental Affairs, which is investigating the effect of peer-to-peer file sharing on the entertainment industry.

SF Chronicle: 52 piracy suits settled

The Recording Industry Association of America said on Monday it has reached out-of-court settlements with 52 people who were sued for sharing online music illegally and 12 others who were targeted for possible legal action.

Mi2N: RIAA Finds Few Takers For Shamnesty: “The Recording Industry Association of America today announced that 838 of the 60 million Americans who file-share have accepted its “Clean Slate” offer.”
Reuters: Lawsuits Damp Down P2P Audience: “Nielsen//NetRatings, which tracks Internet usage, said on Tuesday it found a 41 percent drop over the last three months in the audience for Kazaa, the leading music file-sharing service.”
Yet another legit music download service will follow in the footsteps of eMusic and iTunes. Mercora will launch next month, inspired “in equal parts by iTunes, Friendster and eBay.”

Here are the lyrics to a song that I’ve been working on lately:
Johnny slaves in a windowless office to earn his minimal pay
He walks in at 9AM and sits there through the day
John sits on a cheap old chair,
missing a wheel and near threadbare,
While his boss’s ass is massaged and cared
for in an ergonomic deluxe air.
About whom do we care?
Now he’s there til 10 at night working on the big report
But who’s going to all get the credit when the work has run its course?
John doesn’t get paid any overtime.
He’s treated like a leper mime.
The stock is set to climb and climb,
but John’s options aren’t worth a dime.
Who’s doing time?
John, why are you still stuck in that place?
Get free, go fly through outer space
and leave your cares, forget your blues,
until your rent is due.
Now John just spends his days in the office just surfing the web
No one seems to care as the workforce flows and ebbs
Although they’ve firewalled away the porn,
and read his emails just for scorn,
put a claim on his first-born,
John’s not sitting there forlorn.
He’s stlll unshorn
So why are you still stuck in that place?
Get free, go fly through outer space
and leave your cares, forget your blues,
until…

Tech Law Advisor has an excellent page which answers the question Where can I find good information about the RIAA’s stance on file-sharing? This is as complete, comprehensive and coherent as any source that I’ve seen.

Columbia professor and FindLaw columnist Michael Dorf: The Legal Status of the Don’t-Call Registry.

First, a federal district judge in Oklahoma ruled that the FTC lacked authorization from Congress to establish the no-call registry. Reacting with dizzying speed, Congress overwhelmingly passed and President Bush signed new legislation clearly granting the FTC the necessary authority to maintain and enforce the list.
Before the ink was dry on the new law, however, another federal district judge, this one based in Colorado, ruled that the no-call list violates the First Amendment. If that ruling stands up on appeal, then the only remaining move for Congress would be to propose a constitutional amendment allowing the no-call list. And judging by the speed with which Congress reacted to the Oklahoma ruling, it might do just that.
But the drastic step of amending the Constitution probably won’t be necessary. The district court in Colorado misread the First Amendment.

FTC chairman Timothy J. Muris testified before the Senate Committee on Commerce, Science and Transportation discussing the implications of the Denver court’s ruling and the FTC’s desire to implement the do-not-call list.
The FTC filed an Emergency Motion For A Stay Pending Appeal and Expedited Briefing and Argument with the Tenth Circuit.
Although the FTC list is not going into effect tomorrow, the FCC do-not-call provision remain in force and will go into effect on October 1.

Samuel Bourdin, the son of fashion photographer Guy Bourdin, has sued Madonna, claiming that sets for the video to her song “Hollywood” copied his late father’s images.

The lawsuit, filed Friday in U.S. District Court in Manhattan, accuses Madonna of copyright infringement for her imitation of poses and images in at least 11 works of Bourdin, whose photos were published in French Vogue from the mid-1950s through the late 1980s.

GuyBourdain.org has stills from the video for “Hollywood” next to images from stills from Bourdin’s work: Madonna Copy & Paste Guy Bourdin.

Yale law professor Ian Ayres contributed an Op-Ed to the NY Times: Dialing for Dollars, which proposes a market solution for the telemarketing problem.

This concept of “authorized intermediation” simplifies the government’s regulatory burden. The trade commission doesn’t have to decide what types of calls to connect; it can simply leave it to the marketplace to offer the kind of filters that families really want. Families would benefit by having greater control of a scarce resource: their privacy.

Ayres describes his proposal in greater detail in a 2003 article in the Yale Journal on Regulation, coauthored by Matthew Funk, Marketing Privacy: A Solution for the Blight of Telemarketing (and Spam and Junk Mail), 20 Yale J. on Reg. 77.

Wired News: Spam: This Time It’s Personal. Finding and fighting domain-stealing spammers is not easy.

Freedominfo.org released their 2003 Global Survey, Freedom of Information and Access to Government Records Around the World, which examines the freedom of information laws in the more than 50 countries that have enacted such laws.

The ACLU, along with five library associations, the Internet Archive and Project Gutenberg, filed an amicus brief in MGM v. Grokster, in support of the defendants-appellees. The ACLU argues four points:

• Liability for contributory infringement must depend not only on actual knowledge but also on the ability to act upon such knowledge
• liability cannot turn on an analysis of the percentage of current use that constitutes direct infringement
• Software developers should not be required to modify their products to facilitate enforcement of copyright
• Free speech and the public interest are served by rules that allow new and innovative mediums of communication to develop and flourish.

Washington Post: Use of Subpoenas to Name File Sharers Criticized
NY Times: A.C.L.U. Challenges Music Industry in Court
News.com: ACLU takes aim at record labels
Today, the Senate Committee on Governmental Affairs, Permanent Subcommittee on Investigations held a hearing on Privacy & Piracy: The Paradox of Illegal File Sharing on Peer-to-Peer Networks and the Impact of Technology on the Entertainment Industry.
Internet.com reports: RIAA Settles 63 More Infringement Suits
Downhill Battle launches their P2P Legal Defense Fund
Moby on the RIAA:

personally i just can’t see any good in coming from punishing people for being music fans and making the effort to hear new music.
i’m almost tempted to go onto kazaa and download some of my own music, just to see if the riaa would sue me for having mp3’s of my own songs on my hard-drive.

Need more evidence that we’re in bizarro world? Baseball’s regular season has ended. The Cubs and the Red Sox are both still playing. The Cubs won their division. The Red Sox won the AL wild card. The possibility of a Cubs-Red Sox World Series is not all that remote. The Cubs and the Red Sox. Bizarro, I’m telling you.

I went to the Mets game last night, or at least as much of the Mets game that we could stand. The Mets beat the Pirates 5-3 in front of a sparse assemblage that could hardly constitute a crowd. The game, or at least 5 innings, defined dull.
This was one of the many meaningless baseball games that close out the season. There’s little reason to go to these games (unless you get free tickets.) For the Mets, the last 60 games or so have been pointless. Baseball needs to give some reason for non-competitive teams to play the last month (or more) of the season. European soccer leagues have relegation, where the bottom couple of teams from the top league are relegated to the next level down.
Baseball’s minor leagues could, in theory, support a system of relegation, where the worst teams (the Mets, Tigers) would drop down to triple A, while the top Triple A teams would step up to the big leagues. While, in theory, this would be a good idea, the farm systems would make it unfeasible. Assume that the Mets were demoted, while Richmond (the Braves” Triple A team) was promoted. Then, the Mets organization would have no teams at the major league level, while the Braves organization would have none. If the minor league teams were not affiliated with the major league teams, the system might be feasible. The way that baseball works now, such a system is too far-fetched to be possible. With such a long season, baseball needs some incentive for the teams at the bottom.
I agree with Bob Costas that expanded playoffs are inferior to true pennant races, so expanding the playoffs to NHL-like inclusiveness would be dull and pointless. Besides the carrot of the pennant, baseball needs a reason for teams to play in order to avoid the cellar.

Studios Moving to Block Piracy of Films Online. “If Hollywood executives have learned anything watching their peers in the music business grapple with online file sharing, it is how not to handle a technological revolution.”
AP: Makers of Kazaa Are Suing Record Labels: “Sharman Networks Ltd., the company behind the Kazaa file-sharing software, filed a federal lawsuit Monday accusing the entertainment companies of using unauthorized versions of its software in their efforts to root out users. Entertainment companies have offered bogus versions of copyright works and sent online warning messages to users.”
Wired News: RIAA Goes After the Wrong Gal: “In a possible case of mistaken identity, the recording industry has withdrawn a lawsuit against a 66-year-old sculptor who claims never to have even downloaded song-sharing software, let alone used it.”
Boston Phoenix: The Empire strikes back. “Amid declining CD sales, weak releases, and the continued rise of online file-sharing, the five major labels are fighting to regain market share”

Can FIFA have a trademark over soccer-related uses of “USA 2003?” Nike thinks not, and went to Federal court to get a declaratory judgment. The AP reports: Nike sues over trademark rights to soccer

Sports apparel giant Nike Inc. sued soccer’s international governing body Wednesday, saying it was entitled to use the words ‘‘USA 2003″ to promote the female U.S. soccer team despite claims by the association that those words violate its trademark rights.
In a lawsuit filed in U.S. District Court in Manhattan, Nike said that it wanted to take pre-emptive measures after the Federation Internationale de Football Association threatened its own legal action.

Wired News: Status Quo for Travel Privacy: Most airlines “are saying they do not plan to make any changes to their policies, even though they are weaker than JetBlue’s stated policy.”
JetBlue CEO David Neeleman discusses JetBlue’s sharing of its releasing customer data with a defense contractor:

You may have recently read or heard that during the summer of 2002, in response to a special request from the Department of Defense, JetBlue provided certain customer data to Torch Concepts, a contractor for the Department of Defense, for a project concerning military base security. … We were not paid for providing the information. It was a well-intentioned attempt to assist the Department of Defense in a national security matter.

JetBlue retained Deloitte & Touche to assist in “analysis and continued development of its privacy policy.”

Snopes discusses the copyright status of “Happy Birthday”. While the music is in the public domain, the words are copyrighted. Time Warner owns the publishing rights. The copyright on “Happy Birthday” will expire in 2030 at the earliest.

Boston Globe: Recording industry withdraws suit

he recording industry has withdrawn a lawsuit against a Newbury woman because it falsely accused her of illegally sharing music — possibly the first case of mistaken identity in the battle against Internet file-traders.
Privacy advocates said the suit against Sarah Seabury Ward, a sculptor who said she has never downloaded or digitally shared a song, revealed flaws in the Recording Industry Association of America’s legal strategy. Ward was caught up in a flood of 261 lawsuits filed two weeks ago that targeted people who, through software programs like Kazaa, make copyrighted songs available for others to download over the Internet.

News.com reports: Jury convicts man in DMCA case

A federal jury has convicted a Florida man of violating the Digital Millennium Copyright Act, in the first jury-trial conviction under the controversial law, according to a U.S. attorney’s office.
The Los Angeles jury found 38-year-old Thomas Michael Whitehead guilty on Friday of selling hardware that could access DirecTV satellite broadcasts without paying for them, according to the U.S. attorney’s office in Los Angeles.

News.com reports: Jury convicts man in DMCA case

A federal jury has convicted a Florida man of violating the Digital Millennium Copyright Act, in the first jury-trial conviction under the controversial law, according to a U.S. attorney’s office.
The Los Angeles jury found 38-year-old Thomas Michael Whitehead guilty on Friday of selling hardware that could access DirecTV satellite broadcasts without paying for them, according to the U.S. attorney’s office in Los Angeles.

UK bans spam messages. “Under the new law, spammers could be fined £5,000 in a magistrates court or an unlimited penalty from a jury,” but not land in jail. The law goes into effect December 11, but does not cover business e-mail addresses.
Critics charge that Anti-spam laws ‘lack bite’

Unwanted communication from outside the UK is not covered, and it only targets private e-mail addresses and not business to business e-mails.
But the government has not defined the difference between business and personal addresses, which could give spammers a defence if they do end up in court, say campaigners.

Simon Waldman, the director of digital publishing at Guardian Newspapers in Britain, obtained a 1938 article about Hitler’s home from Better Homes & Gardens and posted scans of it on his personal website. The magazine asked him to take it down, for violation of copyright. Should Waldman’s actions constitute copyright violation, or does it fall within a fair use?
Wired News: Old Hitler Article Stirs Debate 

American law recognizes a “fair use” exception to copyright, which permits limited reproduction for critical, satirical or educational use, where copying would not affect the market for the original work. U.K. copyright, however, recognizes a related concept called “fair dealing,” which Jaszi said tends to be interpreted much more narrowly than its American cousin. He added that the “public interest” exception is more of a theory than a reality in current U.K. law, and probably would not apply to this case.

NY Times: Hitler at Home on the Internet

The episode is an object lesson in the topsy-turvy world of copyright and “fair use” — an area made far murkier by the distributive power of the Internet and the subsequent crisscrossing of international legal codes. In the United States, the posting would most likely be considered fair use, said Wendy Seltzer, a lawyer for the Electronic Frontier Foundation and a fellow at the Berkman Center for Internet and Society at Harvard Law School. “Reprinting the article now, 65 years after its original publication, strikes me as more like reporting or commenting on a news story, or fair use, than photocopying a current scientific article to save the cost of buying more magazines,” she said.

LawMeme’s James Grimmelman looks at Verisign’s terms of service for its “Site finder” service and asks: VeriSign Hijacks DNS Typos . . . And Creates Binding Contracts?

VeriSign hasn’t been very popular lately. Its “SiteFinder” program, which basically redirects all failed .net and .com DNS lookups to its own site, has been drawing intense criticism. “Breaks the entire Internet” is at the milder end of the complaints.
Attention so far has been focusing on the ethics of the move (positively satanic), its effects on DNS and non-Web applications (Considered Harmful), and on possible technical responses (Software Aimed at Blocking VeriSign’s Search Program). On the legal side of the fence, though, we’re not just talking about a can of worms. We’re talking about an oil drum of Arcturan Flesh-Eating Tapeworms.

Since the RIAA lawsuits, the New York Times has covered digital copyright issues nearly every day. Here are some of the latest, plus some other articles.
NYT: Think Debate on Music Property Rights Began With Napster? Hardly. Sheet music, wax cylinders, records, radio and audio tape have all been in the forefront of the struggle for control over ownership, copyrights and distribution.
NYT: Music’s Struggle With Technology

Long before girding against the Internet, for example, the entertainment industry objected to cassettes and videotapes because they would allow people to copy music and programming without making additional payments. Even FM radio was opposed by the record companies at the outset because the high fidelity broadcasts were free. The early defenders of the industry did not understand the ways that the power of the new communications tool would help them market their goods to a broader audience.

NYT: Students Shall Not Download. Yeah, Sure.
NYT: Turn On. Tune In. Download.

Pretty much from the moment that music ”file swapping” made its way into the public consciousness by way of Napster, there has been a vaguely ”Reefer Madness” quality to the discussion of what the practice has meant to its college-age-and-younger participants. We have heard again and again that this new generation is coming to believe that music is something you don’t pay for but rather simply take. That idea is in the air again since the major recording labels recently started filing what they say will be thousands of lawsuits against people who have used file-sharing software like KaZaA to download songs they have not paid for.

Venture capitalist Tim Oren looks at different ways to create hits in the music industry, outside of the major label system.
Time: Playing in the DarkNet. Music swappers go back to the digital underground.

Salon: An open invitation to election fraud

Not only is the country’s leading touch-screen voting system so badly designed that votes can be easily changed, but its manufacturer is run by a die-hard GOP donor who vowed to deliver his state for Bush next year.

The Online Computer Library Center filed a lawsuit in federal district court in Ohio against New York’s Library Hotel for trademark infringement, because the hotel’s room numbers are based on the Dewey Decimal system, for which OCLC owns the trademark.
The complaint (courtesy of beSpacific):

This is an action for trademark infringement under the Lanham Act, 15 U.S.C. §1051 et seq.; 15 U.S.C. §1114(a); unfair competition, passing off, false advertising and false designation of origin under the Lanham Act, 15 U.S.C. §1125(c), arising from Defendant’s unauthorized use of OCLC’s world-famous trademarks DEWEY DECIMAL CLASSIFICATION, DEWEY and DDC, as well as elements of the Dewey Decimal Classification System in its hotel concept, marketing and promotion.

NY Times: Where Did Dewey File Those Law Books?

“The Dewey Decimal System is a product, a trademark, a brand name,” said Joseph R. Dreitler, a lawyer for the Online Computer Library Center, a nonprofit library cooperative that filed the suit last week in Federal District Court in Ohio. “The idea here isn’t to put the Library Hotel out of business. The idea is to protect Dewey and the Dewey Decimal System trademark.”

AP: Library catalog system owner sues book-based New York hotel
Perhaps the hotel should switch over to the Library of Congress Clasiffication system.

The backlash begins against JetBlue for sharing its passenger data with TSA contractor Torch Concepts. EPIC filed a complaint with the FTC, and a group of passengers filed a class action suit
Reuters: JetBlue won’t help test airline security program

“(JetBlue) decided against further participation unless federally mandated due to concerns for customer privacy and the uncertainty of the final structure of CAPPS II,” the airline said in a written statement.

AP: JetBlue Sued For Disclosing Passenger Info

The class-action lawsuit, filed in Utah’s 3rd District Court, alleges fraudulent misrepresentation, breach of contract and invasion of privacy.

EPIC: Complaint and Request for Injunction, Investigation and for Other Relief

As set forth in detail below, JetBlue Airways Corporation and Acxiom Corporation have engaged in deceptive trade practices affecting commerce by disclosing consumer personal information to Torch Concepts Inc., an information mining company with its principal place of business in Huntsville, Alabama, in violation of 15 U.S.C. § 45(a)(1). JetBlue Airways Corporation and Acxiom Corporation engaged in these activities without the knowledge or consent of the affected consumers, and in contravention of public assurances that the personal information it collects would not be disclosed to third parties.

Anyone want to join the official fantasy hockey league of andrewraff.com? We’d like to fill 3 open spots to fill before our draft on Wednesday. If you’re interested, email or IM me and I’ll forward along the details.

I’ve got to give some respect to Tulane 3L Matthew Toll to a certain extent to send this letter to some law firms where he’d like to work. I’m sure that some firms who wouldn’t mind having an associate like this:

I am utterly unconcerned with having any sort of personal life outside of the office. I would work 100 hours a week, 52 weeks a year if required. I do not feel that collecting fees for 3000 hours of work (not merely “billing” but “collecting”) my first year would be unrealistic… I will work nights, weekends, holidays, vacations, whatever. if my mother’s funeral was the day of a key deposition, I would do the eulogy via teleconference after the deposition. If my wedding was on the date of a key trial, the wedding would be postponed. If the wife to be did not like it, I would inform her that wok comes before EVERYTHING ELSE and that if she does not like this, she is free to find a competing husband. Please understand that if I do not see the light of day (arrive at work before the sun comes out, go home after it is pitch dar) for the next 30 years, if I have to eat all meals in the office or even sleep in the office, I would accept that opportunity eagerly, with open arms and with a big smile on my face.

I tend to think that balance in life is important. Can one be a good lawyer (or good anything) without taking time away to reflect and recharge? How can you relate to other people if all you do is work and occasionally sleep?
Toll goes on to unnecessarily patronize his audience by explaining the nature of volunteering, using italics:

I spent the summer after my first year of law school volunteering (i.e. without pay) for an organization known as the Lousiana Volunteer Lawyers for the Arts.”

In her snazzy new Typepad blog, Scheherazade asks Why Are Lawyers Such Snobs?

our profession worships credentials. We assume people from big, fancy law firms are smarter, and we assume people from fancy expensive law schools are better. You’re a big liar if you pretend it’s not true. Maybe it goes away or subsides after a career of practicing law, but we young lawyers (and certainly those applying to and attending law school) feel it acutely, and I bet the middle-aged lawyers who might have forgotten this need only check their ingrained assumptions to see that it’s still there.

I think the snobbery ingrained in the legal profession is a result of the adversary system. Because each side wants to win, they want to have the best lawyers there are, since good lawyers are more likely to win cases than bad lawyers. While a good lawyer may not take a losing case and turn it into a winner, effective lawyering can tip the balance in a close case. Since clients want to have the best lawyers, those who can afford it will pay more for the best lawyers available.
In order to get these fees, the top firms want to prove to their clients that they have the best possible lawyers on staff. Without having a won-loss record, the easiest way to evaluate new lawyers is based on their grades in law school. The top students at the schools with the most selective admissions process are the most likely to succeed in practice. That correlation is not necessarily accurate, but it obviously has an acceptable degree of accuracy, since most large firms hire on that basis.
While there may be some basis for lawyers’ obsessions with status, does that justify the entire profession’s preoccupation with status?

(I’ve been meaning to post this for about two weeks now)
I was very happy to see Agents of Good Roots play for the first time in almost two years. While they’re on extended hiatus, the occasional reunion show is a nice reminder of why they’re such a good and unique band.
The setlist:
John
Get Me There
Radio King
Hobby
One Strange Land
Code of Silence
Shotdown
Miss Misbelieving
Jakob
Smiling Up the Frown
Two Bucks in Cash
Shine On, Mama
Sidewinder
John Brown
(E): Where’d You Get That Vibe?
(E2): Miss America
This was one of the few, if not only, times I’ve seen them come back out for a second encore, but the crowd was very appreciative and loud.
The setlist was about as representative of a greatest hits as possible despite the exclusion of Straight, The Blinds or anything sung by Stew. It was obvious the band hasn’t played together much lately, not only because they had to spend some time trying to figure out if there were any songs they could all remember to play for the second encore, but also because the songs were presented straight-ahead, without many changes or segues. That didn’t preclude them from taking different approaches to some of the songs, such as Stew’s badass bass line in Shotdown, the more stripped down take on John Brown, or Andrew’s slowly building solo in Jakob. In other cases, the reversion to older arrangements sounded fresh, such as in Get Me There and Hobby. Get Me There featured a virtuosic saxophone credenza from JC. All the songs sounded fresh, because I hadn’t listened to any versions of them lately.
John opened with a very freeform opening, due to the fact that the band didn’t have a soundcheck.
Radio King, Hobby, Code of Silence and Smiling Up the Frown are excellent songs. The count off and opening of Where’d You Get That Vibe? is undoubtedly a great way to start an encore.
Download from Archive.org

You may have already noticed, but I’ve added comments to the links sideblog. Why? Because I can. Maybe my readers (both of you) might have something to add. Click on the number in parentheses to post comments (and read comments too, once some are posted).
Also, the Gothamist /601am happy hour is tonight– I’ll be there, barring any unforeseen hurricane-related problems.

AP: House Bans Taxes on Internet Access. The ban permanently extends one, enacted in 1998, which ends in November. All types of Internet access, from dial-up to broadband, are exempt from the tax.

Today’s NY Times Circuits section includes two articles on file sharing.
Is It Wrong to Share Your Music? (Discuss)

“People don’t know what they’re getting into when they buy a computer,” said Korbi in a conversation after Ms. Kriger’s class. “I think Dell should send out a contract for parents to sign, saying you agree not to use it for illegal purposes. I don’t know how else they’re supposed to get people to stop.”

His Beyonce, Her Beatles: A Primer on Trading

A file-sharing system basically works like this: you download and install a file-sharing program like KaZaA, which allows you to search the Internet for specific material that somebody else’s computer may have. When you find it, you can get a copy of the file. In exchange, you make a folder of your own files to be shared with other users. Because all of this trading is done directly between individuals, it is commonly referred to as peer-to-peer, or P2P, networking.

Verisign, the company that manages the .com and .net domains, introduced a new system this week that redirects surfers who mistype domain names to a Verisign site called “Site Finder.” The Verisign site includes a search engine from paid search company Overture and a way to buy unregistered domain names. By doing this, Verisign changes the way that the Internet has worked since its inception and breaks a wide variety of programs that depend on unregistered domain names not leading to a site.
NY Times: Disputes Erupt Over Service for Poor Internet Typists
Salon: Thanks, VeriSign, for breaking the Internet
And finally, the situation is summarized in a cartoon strip by User Friendly.

We’ve reached the point where truth is following only a day behind fiction. Dave sent along some synchronicity he found between a UPI story about George Soros and The Onion’s news:

The funny thing is the Onion story came out the day before the UPI story- you’d have to think Soros read it:
UPI:
“You passed the U.S.A. Patriot Act without proper discussion,” Soros said in a recent interview with PBS. “Anyone who opposed it was accused of giving aid and comfort to the terrorists. I think we’ve gone off the rail in this country. Lawmakers didn’t even get a copy of the bill. They couldn’t even read it before it was passed.”
The Onion:
WASHINGTON, DC

BBC reports: Beatles sue Apple over iTunes

The Beatles’ record label Apple Corps is suing Apple computers over the use of the Apple name and logo to promote music products.
The Apple Corps label says Apple computers’ online music store iTunes – which charges people to download music from the internet – is in breach of a 1991 agreement between the two companies.

Ha’aretz reports: Big Brother is watching you – and documenting

“I don’t know another Web site that has a privacy policy as flexible as eBay’s,” says Joseph Sullivan. A little bit later, Sullivan explains what he means by the term “flexible.” Sullivan is director of the “law enforcement and compliance” department at eBay.com, the largest retailer in the world.
Sullivan was speaking to senior representatives of numerous law-enforcement agencies in the United States on the occasion of “Cyber Crime 2003,” a conference that was held last week in Connecticut. His lecture was closed to reporters, and for good reason. Haaretz has obtained a recording of the lecture, in which Sullivan tells the audience that eBay is willing to hand over everything it knows about visitors to its Web site that might be of interest to an investigator. All they have to do is ask. “There’s no need for a court order,” Sullivan said, and related how the company has half a dozen investigators under contract, who scrutinize “suspicious users” and “suspicious behavior.”

Newsweek has three articles about the RIAA lawsuits:
Courthouse Rock

Last week the recording industry sued 261 unlucky music lovers, who, like millions more, had used Internet file-sharing services to download tunes. Will the radical strategy work? And is it fair?

Out of Tune

Picking on little kids and old ladies? What were the record companies thinking? They say it’s life or death.

Non-Americans Aren’t a Target, Yet

Why is the global music industry going after Americans only? Of the 261 people sued last week by the music giants of the United States (AOL Time Warner), Germany (Bertelsmann), France (Vivendi), Britain (EMI) and Japan (Sony) for pirating music, none lives outside the United States. Turns out the rage for swapping songs through file-sharing services like Kazaa and Grokster is a largely American phenomenon.

Senator Sam Brownback (R-KS) introduced the Consumers, Schools, and Libraries Digital Rights Management Act of 2003 (S.1621), “A bill to provide for consumer, educational institution, and library awareness about digital rights management technologies included in the digital media products they purchase, and for other purposes.”
See Congressional Record pages S11571-S11576, for Brownback’s introduction of the bill.

The Consumers, Schools, and Libraries Digital Rights Management Awareness Act of 2003 will preclude the FCC from mandating that consumer electronics, computer hardware, telecommunications networks, and any other technology that facilitates the use of digital media products, such as movies, music, or software, be built to respond to particular digital rights management technologies.

The bill:

• Prohibits technology mandates requiring specific DRM systems
• Requires that consumers, educational institutions and libraries are aware of the effects of DRM and that they are informed “about the ways in which access control technology and redistribution control technology may affect consumer, educational institution, and library use of digital media products based on their legal and customary uses of such product”
• Requires that DRM products be provided with conspicuous notice and labeling which indicate that such products contain digital access restrictions.
• Provides for consumer privacy protection from DMCA subpoena power

This bill will introduce a check on the DMCA subpoena power currently being used against ISPs by the RIAA and other copyright owners. While introducing the bill, Sen. Brownback said:

The Consumers, Schools, and Libraries Digital Rights Management Awareness Act of 2003 requires the owners of digital media products to file an actual case in a court of law in order to obtain the identifying information of an ISP subscriber. This will provide immediate privacy protections to Internet subscribers by forcing their accusers to appear publicly in a court of law, where those with illicit intentions will not tread, and provides the accused with due process required to properly defend themselves.
   In addition, the bill requires the Federal Trade Commission to study alternative means to this subpoena process, so that we may empower our Nation’s intellectual property owners to defend their rights by pursuing those who are stealing from them, but to do so in a safe, private, confidential manner where consumers are concerned, and without burdening the courts. Transitioning to an FTC process will ensure that there can be speedy verification, due process, safety, and maximum protection for the innocent, while preserving maximum civil enforcement against pirates.

Wired News reports: Senator Takes a Swing at RIAA

“We like lots of things here,” said Wendy Seltzer, an attorney with the Electronic Frontier Foundation. “It reaffirms Internet users’ rights to privacy and anonymity and it reaffirms that we preserve traditional fair-use rights as we move to the online environment.”
“The bill helps to ensure that the public is informed about capabilities and restrictions of media they purchase,” Seltzer said, adding that the bill is “asserting that public rights of access to media and rights to innovate with technology persist in the digital age.”

Senator Brownback is also chairing this week’s Senate Commerce, Science and Transportation Committee hearings on Digital Rights Management.

Here’s an interesting blog-dialogue (blogalogue?) between law professors Euguene Volokh and Lawrence Solum concerning the nature of the intellectual property rights and trying to find an appropriate analogy in the world of tangible property.
Volokh: The Conceptual Plausability of Intellectual Property
Solum: Volokh’s defense of Intellectual Property
Volokh: Larry Solum on IP
Finally, the most thoughtful and well-researched (in other words, long) piece, Solum: Water Wells and MP3 Files: The Economics of Intellectual Property

Wired reports on the best and worst corporate attitudes towards privacy. Best includes IBM, HP, Ford, Baxter Healthcare and Sears. The worst are Eli Lilly, Wal-Mart, NYTimes Co., Burlington Northern Santa Fe and Hilton Hotels.

The NY Times reports that The Bottom Line may be evicted from its current space by NYU: Village Club May Face Swan Song Over Rent

New York University, which owns the building, says that the club owes $185,000 in rent back to 2000, and that the school needs both the money and the space. The university has filed papers in New York City Civil Court seeking to take possession of the club. The case is scheduled to be heard next week.

Today, the Times looks at how the club has lost its relevance: For Younger Music Fans, a Club Is, Well, History. Back in the 70’s, the Bottom Line was one of the premier clubs to play. Today, the Bottom Line doesn’t book particularly popular or fresh, rising acts. The bookings seem generally geared towards the same people who frequented the club in its heyday. Many of them have left the city for the suburbs. The two times I’ve been to the Bottom Line (first to see Hayseed Dixie and more recently for Jeff Coffin), the room was basically empty, but tickets were still priced at $20. If saved, the Bottom Line could rapidly become relevant again with more modern booking and more elastic pricing.
If the Bottom Line does close, it will be yet another part of the disappearance of live music venues in New York. Following the closings of the Wetlands Preserve and Brownies, no comparable venues have opened in the city. Instead, live music seems to be heading out to Brooklyn, with clubs like Northsix in Williamsburg and Southpaw in Park Slope featuring the diversity of acts that the Wetlands and the Bottom Line featured during their best years.

The DC Circuit heard oral arguments from Verizon and the RIAA about the music industry association’s use of DMCA subpoena powers.
In the NY Times, Amy Harmon reports: In Court, Verizon Challenges Music Industry’s Subpoenas

As Congress intensifies its scrutiny of the special subpoenas that the recording industry is using to track down and sue people who share music over the Internet, a federal appeals court panel questioned today whether legislators had intended the subpoenas to be used in such a way.

For News.com, Declan McCullagh reports: Court scrutinizes P2P subpoena process

The three-judge panel gave little indication of whether it would continue to permit the Recording Industry Association of America (RIAA) to exploit the law’s turbocharged subpoena procedures in its campaign against file-trading networks. But the judges did seem to lend more credence to Verizon Communications’ arguments than did U.S. District Judge John Bates, who ruled in January that the RIAA’s use of the law was valid.

Update: The AP reports: RIAA Tactics Under Scrutiny 

Judge John Roberts of the U.S. Court of Appeals for the District of Columbia challenged Recording Industry Association of America lawyer Donald Verrilli Jr. on whether computer users downloading music were any different from people who maintain libraries in their homes.

The Washington Post reports: Senate Approves Measure to Undo FCC Rules

The Senate voted 55 to 40 today to wipe out all of the Federal Communication Commission’s controversial new media rules, employing a little used legislative tool for overturning agency regulations.

The NY Times examines various aspects of the P2P and music industry situation with 4 articles and a series of letters to the editor in today’s paper:
Fighting Song Piracy the Willie Wonka Way

Some musicians try to halt online piracy by turning to lawyers. Others have turned to hackers. The rapper Obie Trice, a protégé of Eminem’s, is turning to Willie Wonka. To entice fans to buy his new album “Cheers,” scheduled for release Sept. 23, Mr. Trice and his label, Shady Records, are hiding “golden tickets” inside 3 of the first 500,000 copies released.

Some Advise ‘Everywhere Internet Audio’

nstead of clinging to late-20th-century distribution technologies, like the digital disk and the downloaded file, the music business should move into the 21st century with a revamped business model using innovative technology, several industry experts say. They want the music industry to do unto the file-swapping services what the services did unto the music companies – eclipse them with better technology and superior customer convenience.

Hollywood Faces Online Piracy, but It Looks Like an Inside Job

According to a new study published by AT&T Labs, the prime source of unauthorized copies of new movies on file-sharing networks appears to be movie industry insiders, not consumers. The study is “the first publicly available assessment of the source of leaks of popular movies,” according to its authors.

Crackdown May Send Music Traders Into Software Underground

Hundreds of software developers are racing to create new systems, or modify existing ones, to let people continue to swap music — hidden from the prying eyes of the Recording Industry Association of America, or from any other investigators.

Letters to the Editor: Music Thieves? Or Music Revels?

Other photos: <a href=““http://www.bluejake.com/archives/2003/09/12/everything_that_rises_must_converge.php”>Bluejake, Satan’s Laundromat, Meccapixel and rion.

US-based Electronic Privacy Information Center (EPIC) and UK-based Privacy International released Privacy and Human Rights 2003: An International Survey of Privacy Laws and Developments.
Among the themes addressed in the comprehensive report:

• Increased data sharing activities among, law enforcement, and national security and intelligence agencies
• Function creep in action: several new laws, originally passed for anti-terrorism purposes, have extended their scope
• The growing use of new technologies of surveillance
• Successful opposition and advocacy by civil liberties groups and NGOs
• Developments in genetic, medical privacy and workplace privacy
• New data protection laws and data protection authorities
• Action of international governmental organizations

Executive summary
The study goes in to detail about specific threats to privacy.
The study includes profiles of privacy laws in 56 countries, including the United States, Canada and the United Kingdom

Wired News reports No Truce in the Spam Wars. In April, EmarketersAmerica.org filed a lawsuit against anti-spam activists. The complaint included counts of libel, invasion of privacy, business interference among other charges. After the defendants filed a motion for summary judgment, EmarketersAmerica.org filed a notice of voluntary dismissal.

rather than welcoming the seeming surrender by EMarketersAmerica.org (EMA), the defendants’ attorney Pete Wellborn said the case should go on. According to Wellborn, he wants to send a message to junk e-mailers who launch legal attacks: Don’t start what you can’t finish.
“We still want the court to decide this suit on its merits,” Wellborn said on Monday. “This is just a desperate attempt by the plaintiffs to escape a frivolous lawsuit without paying the defendants’ legal fees, as justice demands,” he said.

As of yesterday, Snapple is the official beverage of New York City. For beverage makers that don’t have $106 million in cash and $60 million in marketing and promotional value to buy a five-year vending and marketing agreement with the City of New York, I’m glad to announce the sponsorship program here at AndrewRaff.com. That’s right, for low, low prices, you can become the official beverage of AndrewRaff.com. Depending on the value of the sponsorship, not only will you become the preferred vendor and get a nice sponsorship logo here on the site, but all visitors to AndrewRaff.com World HQ (er, my apartment) will be greeted with an offer of your beverage.
But wait, there’s more! You may be saying, “Andrew, I’d love to become an official sponsor of AndrewRaff.com, but although I might enjoy a nice frosty beverage on occasion, I’m not a beverage company.” Don’t worry! There are plenty of other sponsorship opportunities here at AndrewRaff.com: official chocolate chip cookie, official newspaper, official computer, official cell phone, official socks, you name it, it’s for sale!
For specific details or other information, use this simple form to contact me.
More on the NYC-Snapple announcement:
Watch the press conference
NY Times: New York Picks Its Beverage, for $166 Million
Gothamist: Big Snapple? Good Lord
601am is <a href=“http://601am.com/archives/03/09/030910_601am_now_sponsored_by_snapple.php now sponsored by Snapple
NY Post: The Big Snapple
Reuters: Deal Makes New York the Big Snapple

On Monday, the RIAA filed lawsuits against 261 alleged file sharers in federal courts around the country. Here’s a long, but ugly and incomplete, collection of articles and analysis:
AP: Record Industry Sues Music File Swappers
BBC: Music industry starts legal fight
IDG: RIAA sues 261 music uploaders
WSJ: Music Industry Presses ‘Play’
On Plan to Save Its Business
TechTV: Song Swappers Sued
Scott Rosenberg: The music industry’s pie rats strike back
NY Times: 261 Lawsuits Filed on Internet Music Sharing
LA Times:
Piracy Gets Mixed Reviews in Industry File sharing is seen as a burden and a boon
Legal Effort May Slow but Not Stop Music Revolution
Surprise Is a Common Reaction of Those Sued. Some say they didn’t know sharing music via PC was illegal. Others claim tech ingorance.
Sympathy for the Sharer
Perhaps the RIAA attorneys should have gone through the subpoenas a bit more thoroughly to avoid suing sympathetic defendants:
Elderly man, schoolgirl, professor among file-swapping defendants
Music lawsuits snare 18 in Bay Area
20 Colorado Residents Sued Over Internet Music Downloads
Boston Globe: Group sues 261 over music-sharing 46 are accused in Boston area
News.com: RIAA settles with 12-year-old girl for “only” $2,000.
Wired News: Schoolgirl Settles With RIAA
Good Morning Silicon Valley: Music industry to recoup alleged file-sharing losses one 12-year-old at a time
Amnesty
Clean Slate program description and affadavit.
Slate: An Offer You Can Refuse. The RIAA’s amnesty deal may not keep you from being sued.
Salon: We don’t need your stinkin’ amnesty!
Senator Norm Coleman responds to amnesty proposal by recording industry

As I have stated before, the recording industry has legitimate copyright interests to protect. The process they use to protect those interests remains a concern of mine. I will be announcing hearings soon to closely scrutinize the tactics, technology and laws used not only in the 262 lawsuits filed today, but also those that were used to target the more than 1,600 people subpoenaed to date by the RIAA.

A lawsuit was filed against the RIAA on behalf of the general public of the state of California which seeks injunctive relief to “put an end to [RIAA’s] unlawful, unfair and deceptive ‘Amnesty’ or ‘Clean Slate Program’– which consists of deceptive and misleading representations by the RIAA.”
USA Today: Fight over free music on Web coming to Congres
(via many sources, but beSpacific and FurdLog were particularly useful)

On Monday, the RIAA filed lawsuits against 261 alleged file sharers in federal courts around the country.
Here’s a sample complaint.
Here’s a long, but ugly and incomplete, collection of articles and analysis:
AP: Record Industry Sues Music File Swappers
BBC: Music industry starts legal fight
IDG: RIAA sues 261 music uploaders
WSJ: Music Industry Presses ‘Play’
On Plan to Save Its Business
TechTV: Song Swappers Sued
Scott Rosenberg: The music industry’s pie rats strike back
NY Times: 261 Lawsuits Filed on Internet Music Sharing
LA Times:
Piracy Gets Mixed Reviews in Industry File sharing is seen as a burden and a boon
Legal Effort May Slow but Not Stop Music Revolution
Surprise Is a Common Reaction of Those Sued. Some say they didn’t know sharing music via PC was illegal. Others claim tech ingorance.
Sympathy for the Sharer
Perhaps the RIAA attorneys should have gone through the subpoenas a bit more thoroughly to avoid suing sympathetic defendants:
Elderly man, schoolgirl, professor among file-swapping defendants
Music lawsuits snare 18 in Bay Area
20 Colorado Residents Sued Over Internet Music Downloads
Boston Globe: Group sues 261 over music-sharing 46 are accused in Boston area
News.com: RIAA settles with 12-year-old girl for “only” $2,000.
Wired News: Schoolgirl Settles With RIAA
Good Morning Silicon Valley: Music industry to recoup alleged file-sharing losses one 12-year-old at a time
Amnesty
Clean Slate program description and affadavit.
Slate: An Offer You Can Refuse. The RIAA’s amnesty deal may not keep you from being sued.
Salon: We don’t need your stinkin’ amnesty!
EFF’s Fred von Lohmann in the LA Times: ‘Amnesty’ for Music File Sharing Is a Sham
Other legal and legislative responses
Senator Norm Coleman responds to amnesty proposal by recording industry

As I have stated before, the recording industry has legitimate copyright interests to protect. The process they use to protect those interests remains a concern of mine. I will be announcing hearings soon to closely scrutinize the tactics, technology and laws used not only in the 262 lawsuits filed today, but also those that were used to target the more than 1,600 people subpoenaed to date by the RIAA.

A lawsuit was filed against the RIAA on behalf of the general public of the state of California which seeks injunctive relief to “put an end to [RIAA’s] unlawful, unfair and deceptive ‘Amnesty’ or ‘Clean Slate Program’– which consists of deceptive and misleading representations by the RIAA.”
USA Today: Fight over free music on Web coming to Congress
(via many sources, but beSpacific and FurdLog were particularly useful)

Apple finally reveals that a sale of iTunes Music Service songs from one user to another is legal, though impractical.

“Apple’s position is that it is impractical, though perhaps within someone’s rights, to sell music purchased online,” Peter Lowe, Apple’s director of marketing for applications and services, told CNET News.com in an interview.

Apple appears to have no intention of assisting users in transferring ownership of files from one user to another.

“They would have to somehow give their account info to the person they were selling to in order to get their Mac authorized to play the music being sold,” he said…
“Economically, I don’t believe there is going to be much of a market for resold music…We just don’t see it as that much of an issue”

So, users would have to sell their entire iTunes user account, not merely sell some single songs. Or, users would have to find a way to change the ownership of individual files. That action would circumvent the DRM and violate the DMCA.
There won’t be much of a market for resold digital music if it there is no way to resell part of the music purchased digitally. Although legal in theory, Apple appears to make it impractical to resell legally purchased music. A digital music file then retains no value when purchased. If one buys some scarce item, but is unable to transfer ownership in that item, does one really own it?
This follows up on my previous post, Dollars, Cents and Downloads.
Update: Hotelling sold the song by transferring the entire account. It’s not easy.

In Slate, Dahlia Lithwick and Julia Turner have written a handy guide to the USA Patriot Act.

Although it passed in Congress almost without dissent in the aftermath of Sept. 11, it’s suddenly being revisited, and this time around some of the folks holding opinions have actually read the thing. Among its detractors are 152 communities, including several major cities and three states, that have now passed resolutions denouncing the Patriot Act as an assault on civil liberties. More than one member of Congress has introduced legislation taking the teeth out of its most invasive provisions.

Part 1: Should you be scared of the Patriot Act?
Part 2: FISA: It’s everywhere you don’t want to be
Part 3: Can I borrow a pen register?
Part 4:

Apple finally reveals that a sale of iTunes Music Service songs from one user to another is legal, though impractical.

“Apple’s position is that it is impractical, though perhaps within someone’s rights, to sell music purchased online,” Peter Lowe, Apple’s director of marketing for applications and services, told CNET News.com in an interview.

Apple appears to have no intention of assisting users in transferring ownership of files from one user to another.

“They would have to somehow give their account info to the person they were selling to in order to get their Mac authorized to play the music being sold,” he said…
“Economically, I don’t believe there is going to be much of a market for resold music…We just don’t see it as that much of an issue”

So, users would have to sell their entire iTunes user account, not merely sell some single songs. Or, users would have to find a way to change the ownership of individual files. That action would circumvent the DRM and violate the DMCA.
There won’t be much of a market for resold digital music if it there is no way to resell part of the music purchased digitally. Although legal in theory, Apple appears to make it impractical to resell legally purchased music. A digital music file then retains no value when purchased. If one buys some scarce item, but is unable to transfer ownership in that item, does one really own it?
This follows up on my previous post, Dollars, Cents and Downloads.
Update: Hotelling sold the song by transferring the entire account. It’s not easy.

One thread of discussion surrounding the copyright law is the idea of creating a compulsory license for online/p2p distribution, similar to the existing compulsories for broadcasting. Before determining how to collect license fees and distribute, Lawmeme’s Ernest Miller notes the need to determine what constitutes non-commercial use.

Virtually all compulsory license schemes restrict themselves to noncommercial use. They are put forward as a solution to the P2P issue, of file sharing between consumers. No serious compulsory licensing scheme that I am aware of advocates that commercial vendors should be allowed free rein under the compulsory license. Unfortunately, I think that the distinction between commercial and noncommercial use in the P2P realm is not so easy to make. After all, previous compulsory licenses were essentially in the commercial realm. The commercial realm is, in many ways, much easier to regulate than the public or P2P realms (isn’t that why people advocate compulsory licensing schemes in the first place?).

Reuters: Databases–the next copyright battle?

Lawmakers in the U.S. House of Representatives are circulating a proposed bill that would prevent wholesale copying of school guides, news archives and other databases that do not enjoy copyright protection.
The proposed bill would provide a legal umbrella for publishers of factual information such as courtroom decisions and professional directories. The measures would be similar to the copyright laws that protect music, novels and other creative works.

Record Labels to Offer Amnesty to File Sharers, With Conditions

To be eligible, sources said, people would have to cleanse their computers of all the tunes they downloaded without permission and destroy any CDs they burned with those songs. They’d also have to submit a notarized form to the RIAA, possibly with some official identification, pledging not to run afoul of copyright laws again.

This raises many questions. What type of verification will the program impose on participants? How intrusive will the program be? What privacy rights will participants lose to remain in compliance? What penalties will the program offer? What will the the association consider “running afoul of copyright again”?
AP: Music Industry to Unveil Amnesty Offer

Can you resell a downloaded file purchased from iTunes? George Hotelling hopes to find out if the right of first sale still exists, by auctioning a single song, “Double Dutch Bus,” on eBay. The auction violates eBay’s terms of use. I also think it pointless to (attempt to) resell something that can be purchased new for $0.99 when eBay charges at least $0.32 for the transaction. Not only is eBay an expensive market to resell an item valued at a dollar or less, but its Terms of Service explicitly forbid auctioning downloadable items on the service.
The question raised, however, is very interesting. Does the doctrine of first sale apply to digital files? In a Duke Law & Technology Review iBrief, The First Sale Doctrine and Digital Phonoreecords (2001 Duke L. & Tech. Rev. 0018), Bob Hyde argues that the doctrine of first sale should not apply to digital media files. Unlike with traditional analog and digital recording media (records, tapes, CDs), the downloaded digital file is ephemeral. The mere action of electronically transferring the file from one owner to another creates a copy. Unlike with a record or CD, no physical media is attached to ownership of a digital file. The iTunes license recognizes this and allows a single user to keep as many copies of the file as the user wants, but restricts playing the file on 3 authorized computers and any number of iPods.
A user can not copy iTunes files to an unlimited number of computers and still expect those files to play. The key purchase with iTunes is not the file itself, but a license to use the file.
The iTunes Terms of Service and Terms of Sale are essentially mute on the topic of first sale. The most relevant clause in the Terms of sale may be: “The delivery of a Product does not transfer to you any commercial or promotional use rights in the Product.” Is selling my own copy of something that I own a commercial use? Assuming that a personal sale is a commercial use, then resale is obviously prohibited. However, when contemplated in terms of “commercial or promotional,” it sounds more like the warning which opens most DVDs and video tapes: “for personal, non-commercial use.” While I can not charge admission to a public showing of The Simpsons Season 3, I can sell the DVD to another individual.
The first clause in the Terms of Service reads:

1. Definition of the iTunes Music Store Service. Apple is the provider of the iTunes Music Store (the “Service”) that permits you to purchase downloads of digital content—such as sound recordings—under certain terms and conditions as set forth in this Agreement.

Under one reading of this clause, users are purchasing the right to one download from Apple, not purchasing one file. This is like buying a NY subway token (or a single-ride Metrocard now), which grants the right to enter the subway system once. After entering the subway system, I can choose to exit without getting on a train and am not entitled to a refund. But, when unveiling the iTunes music store, Steve Jobs said when you download a song from iTunes, “you own it.” Music files are treated like products in a store, and it certainly feels to the users like we have purchased something. That song is occupying space on an iTunes user’s computer. The subway token analogy is closer to eMusic’s approach, where $9.99 a month grants access to as much or as little unrestricted music as the user wants.
The m4p files from iTunes act more like scarce objects than the unrestricted mp3 files from eMusic. Only one person (and the other people that person would trust with his credit card) can access the protected AAC files. I could distribute an unlimited number of copies of The Bad Plus’s “What Love is This” as I want after I’ve downloaded it. But only up to three of those copies are in any way useful and only to someone with access to the license to use the song. If I decided that I didn’t want the Soulive CD I bought, I could sell it and no longer have access to it. If I transfered my license to listen to the Soulive AAC files to someone else, I would no longer have access to it. In this way, protected AAC albums resemble scarce CDs more than they resemble unlimitedly re-distributable MP3 files.
Although a seller could theoretically sell his entire iTunes account to a buyer, that would require the seller not want to keep any previously purchased music. That also assumes that the iTunes account can be severed from the other related services that a customer might use from Apple, such as .mac email or stored information at the Apple store. It also assumes that the purchaser not have his own iTunes account, since it would require the purchaser to have change identity within the iTunes application to play certain songs. It seems much easier to allow users to transfer licenses.
If it is not possible to transfer ownership of a license to an iTunes m4p album from one person to another, buying a $9.99 download from Apple makes far less economic sense than buying a $12.99 album from Tower. Once downloaded, the iTunes album retains absolutely no monetary value, while the CD can still be sold or traded. Furthermore, one could never use iTunes to buy a gift. If I wanted to buy an album to give to someone, I would have to have access to their account. I might as well just buy some gift wrap for that CD.
If licenses to access DRM’ed files are not transferable, then buying protected downloads makes no sense for consumers if unprotected CD’s are still available. Even at a 50% price premium, the CD is a much better value. Someone who would buy hundreds of dollars of music through iTunes would have no assets, while someone who bought the same music on CD would still have some value. If Apple wants its digital distribution service to be viable, the licenses to use DRM-protected digital downloads should be transferrable. If not, consumers have no economic reason to prefer downloads.
Elsewhere:
News.com: iTunes auction treads murky legal ground
Slashdot: Testing the Right to Resell Downloaded Music
Tech Law Advisor: Does the Right of First Sale Still Exist?
Ernie the Attorney: Testing the legality of Apple’s iTunes Music Store using eBay? Bad idea.
News.com: eBay mutes iTunes song auction

Can you resell a downloaded file purchased from iTunes? George Hotelling hopes to find out if the right of first sale still exists, by auctioning a single song, “Double Dutch Bus,” on eBay. The auction violates eBay’s terms of use. I also think it pointless to (attempt to) resell something that can be purchased new for $0.99 when eBay charges at least $0.32 for the transaction. Not only is eBay an expensive market to resell an item valued at a dollar or less, but its Terms of Service explicitly forbid auctioning downloadable items on the service.
The question raised, however, is very interesting. Does the doctrine of first sale apply to digital files? In a Duke Law & Technology Review iBrief, The First Sale Doctrine and Digital Phonoreecords (2001 Duke L. & Tech. Rev. 0018), Bob Hyde argues that the doctrine of first sale should not apply to digital media files. Unlike with traditional analog and digital recording media (records, tapes, CDs), the downloaded digital file is ephemeral. The mere action of electronically transferring the file from one owner to another creates a copy. Unlike with a record or CD, no physical media is attached to ownership of a digital file. The iTunes license recognizes this and allows a single user to keep as many copies of the file as the user wants, but restricts playing the file on 3 authorized computers and any number of iPods.
A user can not copy iTunes files to an unlimited number of computers and still expect those files to play. The key purchase with iTunes is not the file itself, but a license to use the file.
The iTunes Terms of Service and Terms of Sale are essentially mute on the topic of first sale. The most relevant clause in the Terms of sale may be: “The delivery of a Product does not transfer to you any commercial or promotional use rights in the Product.” Is selling my own copy of something that I own a commercial use? Assuming that a personal sale is a commercial use, then resale is obviously prohibited. However, when contemplated in terms of “commercial or promotional,” it sounds more like the warning which opens most DVDs and video tapes: “for personal, non-commercial use.” While I can not charge admission to a public showing of The Simpsons Season 3, I can sell the DVD to another individual.
The first clause in the Terms of Service reads:

1. Definition of the iTunes Music Store Service. Apple is the provider of the iTunes Music Store (the “Service”) that permits you to purchase downloads of digital content—such as sound recordings—under certain terms and conditions as set forth in this Agreement.

Under one reading of this clause, users are purchasing the right to one download from Apple, not purchasing one file. This is like buying a NY subway token (or a single-ride Metrocard now), which grants the right to enter the subway system once. After entering the subway system, I can choose to exit without getting on a train and am not entitled to a refund. But, when unveiling the iTunes music store, Steve Jobs said when you download a song from iTunes, “you own it.” Music files are treated like products in a store, and it certainly feels to the users like we have purchased something. That song is occupying space on an iTunes user’s computer. The subway token analogy is closer to eMusic’s approach, where $9.99 a month grants access to as much or as little unrestricted music as the user wants.
The m4p files from iTunes act more like scarce objects than the unrestricted mp3 files from eMusic. Only one person (and the other people that person would trust with his credit card) can access the protected AAC files. I could distribute an unlimited number of copies of The Bad Plus’s “What Love is This” as I want after I’ve downloaded it. But only up to three of those copies are in any way useful and only to someone with access to the license to use the song. If I decided that I didn’t want the Soulive CD I bought, I could sell it and no longer have access to it. If I transfered my license to listen to the Soulive AAC files to someone else, I would no longer have access to it. In this way, protected AAC albums resemble scarce CDs more than they resemble unlimitedly re-distributable MP3 files.
Although a seller could theoretically sell his entire iTunes account to a buyer, that would require the seller not want to keep any previously purchased music. That also assumes that the iTunes account can be severed from the other related services that a customer might use from Apple, such as .mac email or stored information at the Apple store. It also assumes that the purchaser not have his own iTunes account, since it would require the purchaser to have change identity within the iTunes application to play certain songs. It seems much easier to allow users to transfer licenses.
If it is not possible to transfer ownership of a license to an iTunes m4p album from one person to another, buying a $9.99 download from Apple makes far less economic sense than buying a $12.99 album from Tower. Once downloaded, the iTunes album retains absolutely no monetary value, while the CD can still be sold or traded. Furthermore, one could never use iTunes to buy a gift. If I wanted to buy an album to give to someone, I would have to have access to their account. I might as well just buy some gift wrap for that CD.
If licenses to access DRM’ed files are not transferable, then buying protected downloads makes no sense for consumers if unprotected CD’s are still available. Even at a 50% price premium, the CD is a much better value. Someone who would buy hundreds of dollars of music through iTunes would have no assets, while someone who bought the same music on CD would still have some value. If Apple wants its digital distribution service to be viable, the licenses to use DRM-protected digital downloads should be transferrable. If not, consumers have no economic reason to prefer downloads.
Elsewhere:
News.com: iTunes auction treads murky legal ground
Slashdot: Testing the Right to Resell Downloaded Music
Tech Law Advisor: Does the Right of First Sale Still Exist?
Ernie the Attorney: Testing the legality of Apple’s iTunes Music Store using eBay? Bad idea.
News.com: eBay mutes iTunes song auction

I recently bought Soulive’s latest album, an eponymous release which was recorded live during late 2002. The album itself is excellent. Unlike the group’s prior Blue Note albums, Soulive accurately captures the trio’s groove and doesn’t sound stilted.
<A HREF=“http://www.amazon.com/exec/obidos/ASIN/B000098ZU6/andrewraffcom"> I bought the album on CD, rather than as an iTunes download, so that I could access the “special features” on the Enhanced CD. In the liner notes, the “System requirements for enhanced CD content” are listed as “MAC G3 or better with DVD-ROM drive and QuickTime 5.0.2.” I am still very surprised to find that the enhanced content will only play in OS 9, not natively in OS X or even in Classic. This seems ironic considering that all the music on the album was recorded using a Mac G4 running OS X.
Thanks Macromedia and Blue Note. Even though the system requirements note that “certain computers may not be able to access the multimedia portion of this disc,” I didn’t realize that certain computers may not be able to because they’re too new. Fortunately, the music is great.
The liner note brings up another pet peeve I can address: the unnecessary and improper use of all capital letters (“MAC”) when referring to the Macintosh computing system and the Mac OS. Mac is an abbreviated form and not an acronym. As such, it should use the normal capitalization for a proper noun, just like when using the nickname “Andy.”

At Lawmeme, James Grimmelman discusses how Abusive E-Mail Subpoenas Are Actionable Under Federal Law

There’s legal hardball, and then there’s legal lunacy, and Alvin Farey-Jones just got an expensive lesson in the difference. In the course of a lawsuit against a company named ICA, he sent a subpoena to ICA’s ISP, asking for all of ICA’s email. The ISP complied.
The Ninth Circuit has just ruled that Farey-Jones’s actions could constitute a violation of both the Computer Fraud and Abuse Act, which prohibitions “unauthorized access” to computer systems, and the Stored Communications Act, which does the same for electronic communications.

The AP reports Colleges Move to Stop File – Swapping

Students arriving for fall classes at colleges across the country are facing new restrictions and stern warnings to discourage the swapping of pirated music and movies over high-speed campus Internet connections.
Some schools are even using software to choke the amount of data that can flow in or out of a computer when students use Kazaa and other file-sharing programs.
And in a new approach disclosed Tuesday, at least a dozen universities are exploring ways to offer students a fee-based music service whose fees could be bundled with room and board costs.

Joint Higher Education and Entertainment Group Issues Review Of Year-Long Efforts To Curb Illegal File Sharing On College Campuses

A joint committee of leaders from the higher education and entertainment communities, formed to develop collaborative solutions to address illegal file sharing on college campuses, today released a review of its efforts and the progress accomplished during the past year, as well as projects still on the agenda.

On Monday, Amazon.com filed 11 lawsuits in 6 states and in Ontario against spammers who send forged email which claims to originate from Amazon.com.
Today, NY Attorney General announced an agreement with one of these companies (Brooklyn-based Cyebye.com):

“Consumers are continuing to be overwhelmed with fraudulent or unsolicited commercial email,” Spitzer said. “My office is committed to protecting consumers and cleaning up the email marketing industry. This agreement sends the message that fraudulent email will not be tolerated.”
The settlement agreement prohibits Cyebye.com from using third parties’ names to market, unless the company obtains authority to do so. The company is also required to keep records of all commercial emails during the next two years and provide the Attorney General’s office with regular updates of its compliance with the settlement. Cyebye.com must pay $10,000 in penalties to the State of New York.

The complaints all allege the following claims:

• Trademark Infringement Under the Lanham Act (15 USC §1114)

• False designation of origin under the Lanham Act (15 USC §1125(a))

• Cyberpiracy Prevention under the Lanham Act (15 USC §1125(d))

• Unfair Competition under the Lanham Act (15 USC §1125(a))

• Trespass to Chattels (The spammers know that a high number of their messages would bounce, so by forging the domain name burdened Amazon’s servers with the innumerable bounced messages rather than their own servers.)

  • Unfair Competition (state law)

  along with these additional claims under the various states’ laws:

• False Advertising (CA)

• Consumer Fraud (AZ)

• Unfair Business Practice (NY)

• Unfair Business Practice (WA)

• Fraudulent Representations (WI)

• Common Law Trademark Infringement and Unfair Competition (WI)

In Ontario, Amazon claims:

• Trade-mark Infringement, Passing-off and Unfair Commpetition
• Trespass to Property
• Interference with Economic Relations

One of the Florida complaints includes Magistrate Judge Barry Poretz’s report and recommendation in America Online, Inc. v. Web Communications et. al., a similar case of spoofed spam, which found for AOL and recommended granting permanent injunctive relief, damages under the Lanham Act, punitive damages for the common law claims and attorney’s fees.
AP: Amazon.com Sues E-Mail Marketers
NY Times: Amazon Files Suits Against Online Spoofers
News.com: Amazon goes after spammers
Reuters: Amazon sues online marketers for forging e-mail
BBC News: Amazon sues over spoof e-mailers
The Globe and Mail: Amazon sues Toronto company over name use
eWeek: Amazon Ratchets Up Fight Against Spammers
InternetNews.com: Amazon Goes After the Flim-Flam Man
Miami Herald: Amazon.com sues over sexy e-mails and Amazon.com sues Palm Harbor man in spamming case
Financial Times: Amazon files suits against online spoofers
The Register: Amazon.com cracks down on spoofers
DM News: E-Mail Marketer Agrees To Change Header Practices; Amazon Files Lawsuits
I am very interested to see what happens in these cases, since I also was a victim of a similar spam spoofing attack. Unlike Amazon, however, my domain name is not a trademark, so any decisions in this case might not have precedental value if I wanted to sue. That would require, of course, that I find the company responsible.
(Updated Aug. 28 with links to more news articles)