Posted on October 8th, 2008 by William McGeveran
A grand jury has handed down this indictment against David Kernell, the son of a Democratic state legislator in Tennessee, for allegedly hacking into Governor Sarah Palin’s e-mail account. (News story here.) Professors Orin Kerr and Paul Ohm, probably the two most knowledgeable scholars in the country on the subject of computer crime, are both dubious about the way the indictment achieves felony charges. (In short, the unauthorized intrusion into Palin’s e-mail needs to have been in furtherance of some other crime or tort; in typical cases that would be fraud or identity theft, but here it isn’t clear what that other crime or tort might be.)
This sounds like DOJ might be engaging in some of the same questionable tactics as in the Lori Drew case, which I’ve discussed before. Here, like there, the [alleged] underlying behavior was wrong and should be criminal. But it matters how you achieve that result, and loosening the law just to get the bad guys gives too much discretion to prosecutors.
Question of the day: will a failed prosecution here (or in the Drew case) lead to reform of the antiquated computer hacking/trespass/fraud statutes?
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Filed under: Computer crime, Intermediaries, Privacy
Posted on October 8th, 2008 by Derek Bambauer
No, Alex Rodriguez isn’t involved. But with the Red Sox meeting the Tampa Bay Rays in the American League Championship Series on Friday, this seemed like a fun bridge between IP and MLB. (Game 1 is at 8PM EST, or at least 2 hours past the bedtime for most Tampa residents.) Brad Sherman sought to register (App. No. 78673909) the mark “SEX ROD” with the PTO in 2005 for use on clothing; the mark is in the Red Sox’ distinctive font. The Sox unsurprisingly filed an opposition in 2006 (I assume they’re using a trademark watch service), challenging the application as likely to cause confusion under Section 2(d) of the Lanham Act, and also as immoral / scandalous, disparaging, and falsely suggesting a connection with the Sox (all under Section 2(a)). The Sox also alleged that Sherman lacked the requisite bona fide intent to use the mark. (Sherman filed an Intent to Use (ITU) application, not one based on actual use.) The Trademark Trial and Appeal Board (TTAB), ever speedy, mailed its decision on September 9. The outcome: shockingly, Sherman loses. Read more…
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Filed under: Court Decisions, First Amendment, Law School, Trademarks
Posted on October 4th, 2008 by William McGeveran
This Chicago Tribune article discusses a controversy at the University of Illinois, which:
has sparked outrage by telling faculty, staff and graduate students that a 5-year-old state law designed to prevent state workers from campaigning for candidates on state time or with state resources meant they could not express support for candidates or parties through pins, T-shirts or bumper stickers while on campus. Nor could they attend any political rally or event on campus, the administration said.
The governor’s Office of Executive Inspector General, which investigates ethical violations, has gone one step further, saying state law meant that university students, not just employees, were prohibited from participating in political rallies on campus–an assertion at odds with the university’s interpretation.
On Friday, the state attorney general’s office said the ethics law did not apply to students. The office did not answer whether the law prohibited university employees from wearing political buttons while at work, attending political rallies on campus on non-work time or some of the other specific interpretations made by the university.
Two thoughts. Read more…
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Filed under: First Amendment, Media, Scholarship, Voting
Posted on October 3rd, 2008 by Derek Bambauer
[Update Oct. 3 5:45PM - Skype's president responds, and says Skype was unaware of TOM's monitoring. But this is why tech firms partner with domestic Chinese firms: to handle uncomfortable requests such as filtering and surveillance... (via Wired)]
The New York Times reports on some terrific research done by my former ONI colleague Nart Villeneuve - he found that the TOM-Skype text messaging service in China not only scans messages for sensitive keywords, it also stores copies of offending messages along with information identifying the sender and receiver. This raises a host of scary issues. First, these messages are clearly stored for a purpose. It might be to help TOM-Skype kick people who send sensitive messages off the service; more sinister (and more likely) is that it might help the Chinese government keep tabs on those users (and, probably, analyze traffic data for trends in what’s discussed or to detect new keywords to block). Second, the surveillance is insecure: Nart’s hax0r skills are rare, but there are other skilled folks out there, too, who might find (or have found) uses for this information. Third, Skype has consistently denied doing this sort of thing. Oops. Finally, eBay (which has thus far eluded the scrutiny that Microsoft, Google, and others have faced over operations in China) has responded by saying they’ll have TOM-Skype fix the “security breach.” No, not the one that stores all these messages - the one that let Nart access them. This is like spotting a sewage leak like by the flies above it, and vowing to do something about those flies.
This research also elucidates the link between censorship and surveillance: the former can enable the latter to be better-targeted. Indeed, Nart’s work suggests that TOM-Skype messages were stored not simply because of content, but because the service identified certain users as more likely to send texts with sensitive keywords. That’s scary. And it moves (or should move) the debate about corporate complicity with authoritarian states’ actions up a notch: this is more like Yahoo! selling out Shi Tao than Google censoring search results. We’ll see what, if anything, eBay does in response.
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Filed under: Berkman, Encryption, Filtering, ISP, Intermediaries, Internet & Society, Privacy, Scholarship, Security, Software, international
Posted on September 30th, 2008 by William McGeveran
[Important UPDATES below]
I just looked at Facebook’s privacy settings to remind myself how to opt out of the Beacon feature for the article I am writing about social marketing. Amidst the redesign and snappy new home page, it appears the tab I described earlier this month is now gone. Has Facebook quietly pulled the plug on Beacon? And if so, is Facebook Connect effectively its replacement?
UPDATE: The Inside Facebook blog noticed the same thing and asked the same question last week. And one of the commenters there noted that the old Facebook pages, in the old layout, are still available at different URLs than the new ones (here is the old Beacon page). It strengthens my suspicion that Facebook is using the site redesign to try to put Beacon down the corporate memory hole.
UPDATE 2: Aha! They moved the Beacon opt-out to the Privacy>Applications page. That’s why I (and others) couldn’t find it. But as Michael Zimmer reports, be very careful how you click that radio button!
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Filed under: Digital Media, Intermediaries, Internet & Society, Privacy, Scholarship, Social Networking
Posted on September 30th, 2008 by Derek Bambauer
Lifehacker and CNET point out that IBM is releasing an “Ultralite” version of iNotes — a way of accessing your Lotus Domino (= Notes server) e-mail, contacts, and calendar from an Apple iPhone. This is cool, and a nice addition (competitor) to the current POP / IMAP options for iPhone. I’ve held off on buying an iPhone over concerns about the speed of data transfer and an unwillingness to migrate to Apple’s services (MobileMe, I’m frowning at you!), but this might change the equation.
I remain a huge Lotus Notes fan - primarily for its security and reliability. Of course, I use Notes at a school with an Exchange infrastructure, and root for the Red Sox in a city split between the Yankees and Mets. Up next: I endorse Ralph Nader for the iconoclast trifecta.
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Filed under: ISP, Intermediaries, Internet & Society, Law School, Notes, Security, Software
Posted on September 28th, 2008 by Derek Bambauer
The South Carolina Law Review is launching a pilot program where submitted articles are evaluated by peer reviewers who are knowledgeable about the article’s subject matter. This is terrific news: peer review will help improve the quality of published articles, and will increase the likelihood that published pieces are genuinely novel contributions to the scholarly literature. Peer review is the norm in most other scholarly disciplines; when I describe the current process of article selection to colleagues in other fields, they’re horrified, amused, or both. Peer review will help us as authors and as readers, and SC is to be commended for this effort. I hope it goes beyond a pilot…
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Filed under: Intermediaries, Law School, Peer Production, Scholarship
Posted on September 26th, 2008 by William McGeveran
The other day I had the pleasure of attending a faculty workshop here at the University of Minnesota Law School where Chris Sprigman from the University of Virginia Law School presented a paper he coauthored with his colleague Dotan Oliar entitled “The Emergence of Intellectual Property Norms in Stand-Up Comedy.” The paper and talk were informative, insightful, and of course funny. Plus, what geniuses they were to come up with academic work that required them to interview comedians and read about the history of humor!
Oliar and Sprigman show how the clubby world of nightclub comics (an estimated 3000 members nationwide) generated an informal system of copyright-like protection for jokes. In the earlier days of post-vaudeville comedy, where rapid-fire one-liners were the key and stand-up was performed live to purely local audiences, originality was not that important and people bought, copied, and stole jokes all the time, more or less with impunity. But as originality and personality-infused humor became more important in modern comedy (they credit Mort Sahl and Lenny Bruce as the transitional figures), and acts were shown to the whole world at one time through mass media, the harm of joke-stealing increased. Now, comics informally enforce a norm of authorial protection much stricter than anything copyright law allows. Yet they never go to court — the authors could not locate a single copyright case involving comics over joke theft.
Great paper. Larry Solum liked it too. So “download it while it’s hot.”
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Filed under: Copyright, Law School, Minnesota, Scholarship
Posted on September 25th, 2008 by Tim Armstrong
Cecilia Gonzalez downloaded 30 copyrighted sound recordings using a peer-to-peer file-sharing program. The downloads were unauthorized by the holders of copyright in the works; accordingly, Gonzalez infringed. Had she purchased the 30 songs off iTunes (for example) at 99¢ each, her out-of-pocket cost would have been (say) $30. After subtracting the commission Apple collects from iTunes sales, the net revenues to the copyright holders would have approximated $15. Thus, we might suppose, the amount of harm to the copyright holders from Gonzalez’s infringing activity can be quantified with reasonable precision: it’s $15. When the copyright holders sued Gonzalez for copyright infringement, however, they were awarded not $15, but $22,500 — 1,500 times the actual harm. What is even more remarkable, the $22,500 figure was the bare minimum to which the copyright holders were entitled under 17 U.S.C. § 502(c)(1): the statute provides for damages of $750 to $30,000 per work infringed (and upon proof of willfulness, up to $150,000). The $22,500 damage award against Gonzalez came from multiplying her 30 infringing downloads times the $750 statutory minimum.
I was thinking of Cecilia Gonzalez’s case when reading the news that the trial judge in the Jammie Thomas file-sharing case (previously covered here) has ordered a new trial. Read more…
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Filed under: Copyright, Court Decisions, Internet & Society, Music, RIAA
Posted on September 22nd, 2008 by Derek Bambauer
A recent dispute in Wisconsin has raised an issue I thought long-dead: whether permission is required to link to a Web site. Jennifer Reisinger, a resident of Sheboygan, Wisconsin, runs a Web design business and is also a political gadfly - she set up a Web site that seeks to have the mayor of Sheboygan, Juan Perez, recalled. Her Web design site linked (and still does) to Sheboygan’s police department’s site. [The Sheboygan police need a new Webmaster; it's just not cool to have a site titled "New Front Page 1," and FrontPage is not exactly the choice of the cognoscenti.]
Evidently the mayor’s assistant asked Sheboygan city attorney Stephen McLean whether Reisinger could link to the site. McLean rightly noted that knowledge or consent of the linkee isn’t required, but then offered to send a cease-and-desist letter to Reisinger, which he did. (If you’re scoring at home, McLean is the current clubhouse leader in “Fastest transition from legal accuracy to legal idiocy.” When the government orders you to remove something from your Web site, well, it should really have better grounds than keeping the current mayor happy. If memory serves, the First Amendment actually did get incorporated against states. Note also that McLean helpfully copies the mayor on his C&D letter, saving us the trouble of figuring out causation.)
According to news stories and Reisinger’s suit, the story gets even more fun: the police launch an investigation into the linking. (It’s a wonderful endorsement of Sheboygan that police resources are available to devote to such efforts - crime must be low. Next week on “CSI: Sheboygan” - “Linking!”) Now, Reisinger does the right thing and gets a lawyer, Paul Bucher. Bucher tells Reisinger she’s got nothing to worry about and points out to McLean and the mayor that it’s considered a good idea to have actual legal support for government demands for on-line censorship. The city, seeing that Reisinger is now a gadfly with sting, withdraws the demand (and, presumably, the investigation comes to naught.) Reisinger alleges she’s had negative reaction to the investigation that has hurt her Web design business, and she’s suing the mayor, McLean, the chief of police, the city, and the city clerk. Read more…
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Filed under: Intermediaries, Internet & Society, Media