August 03, 2008

Intellectual Property Rights Act of 2008 - Trademark Blog

Of course, there are no sanctions against intellectual property holders for overreaching, reverse domain name hijacking, ignoring fair use provisions, etc. etc.

Intellectual Property Rights Act of 2008:

Counterfeit Chic: Senate Considers Enforcement of IP Rights Act of 2008:

Among the bill's additions to existing law are the following:

Authorization of the Attorney General to bring civil, not just criminal actions -- a potential benefit to intellectual property rights holders who now have to file such lawsuits on their own dime;

Enhanced penalties, including doubled statutory damages for counterfeiting (to $1,000 to $200,000 for use of a fake trademark and to $2m for doing so willfully);

New forfeiture provisions for property used to violate intellectual property rights -- like that car used to transport counterfeit handbags or a computer used to download music;

More enforcement resources and personnel at the local, national, and international levels, including placement of IP law enforcement coordinators in hotspots overseas;


A federal Intellectual Property Enforcement Coordinator, a.k.a. a Copyright Czar.

June 18, 2008

An Open Access Success Story, Just in Time for CALI

An Open Access Success Story, Just in Time for CALI:

I’m traveling to Baltimore tomorrow, where I’ll be speaking later this week at UMD, one of the few law schools that can claim to be older than my own. The occasion is this year’s CALI Conference for Law School Computing, and I’ll be delivering an updated version of my talk on the open access movement.

As it turns out, I’ll also be delivering an unexpected bit of good news. The open-access project I blogged about here last October has yielded some impressive results. The project involved scanning and proofreading the House Judiciary Committee’s Report on the landmark Copyright Act of 1976. To my knowledge, the House Report has never been freely available online — a keenly felt omission, given how frequently United States courts in copyright cases rely on the Report as an aid to construction of the (frequently unilluminating) statutory text.

That problem has now been remedied.

Working in irregular bursts over the last eight months, volunteers at the English-language Wikisource project (a sister site of the much better known Wikipedia encyclopedia) have proofread all 370 page scans from the original House report, and the results have been stitched together to form a single document: Copyright Law Revision (House Report No. 94-1476). As the accompanying color-coded chart reveals, most pages of the report have been proofread by at least two different users, and the rest should be finished within a few weeks if current trends continue.

Here are just a few reasons why the Wikisource version of the House Report is the best now available anywhere.

  • It’s free. Like all U.S. government works, the text is in the public domain. And Wikisource, unlike proprietary database vendors, doesn’t purport to limit your freedom to copy or reuse the public-domain texts that are hosted on the site. If you look up the exact same report on Westlaw, for instance, you’ll find this rather forbidding warning:

    ©2008 Thomson/West. Copyright is not claimed as to any part of the original work prepared by a U.S. government officer or employee as part of that person’s official duties. All rights reserved. No part of a Westlaw transmission may be copied, downloaded, stored in a retrieval system, further transmitted, or otherwise reproduced, stored, disseminated, transferred, or used, in any form or by any means, except as permitted under the terms of the Subscriber Agreement wherein you obtained access or with prior written permission. Each reproduction of any part of a Westlaw transmission must contain notice of Thomson/West’s copyright. Westlaw, WIN, and KeyCite are trademarks registered in the U.S Patent and Trademark Office. WIN Natural Language is protected by U.S. Patent Nos. 5,265,065; 5,418,948; and 5,488,725.

    Where Thomson/West gets off telling me what I can and can’t do with information they don’t own is beyond me. By drawing the text of the House Report from the original U.S. Government publication, however, Wikisource’s version avoids entanglement with similarly overreaching proprietary claims.

  • It’s complete. Other online versions of the Report, as well as most hard-copy reprints (e.g., 1976 U.S.C.C.A.N. 5659), omit certain portions. Typically, they exclude the text of the legislation (pp. 146 of the Report) as well as an especially lengthy, complicated three-column table that offers a side-by-side comparison of (1) the version of the bill that passed the Senate in 1975, (2) the text of the House’s amended version, and (3) the corresponding provisions, if any, of the Copyright Act of 1909 (pp. 186358 of the Report). Wikisource, in keeping with its general editorial philosophy, reproduces the complete text in its entirety; the site’s editors don’t substitute their own judgments about which portions of the document will be useful to you.

  • It’s pinpoint-hyperlink-able (I’m sure I’m overlooking a more technologically correct way of saying that). Did you spot those hyperlinks in the preceding paragraph? Mitigating the potential unwieldiness of posting a 370-page document as a single Web page is the fact that anchor elements are included to take you directly to any page within the document. So if you want to jump straight to the Committee’s discussion of fair use, for example, you can.

  • It’s (optionally) annotated. Wikisource reproduces original texts as published, warts and all. But the architecture of the site makes it easy to offer an alternative annotated version of the text where errors are marked and corrections offered.

Assisting with the creation of the online version of the House Report has been an educational experience, and I expect to have more to say about the pros and cons after my CALI talk. For now, though, I’m pleased just to report that an important and influential primary reference source in copyright law has, three decades after the fact, at last become freely available online.

November 02, 2006

Remove Test Data Prior To Publication

Remove Test Data Prior To Publication:

As noted by, among others, Eugene Volokh, a patent application has been filed with an obvious "test data" claim. The claim reads:

9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.

So on the one hand it's funny both in its text and in that it got through. The complaints about abysmal patent quality and absurd patent claims in the software arena have come from all corners and as some have said at least this one is forthright in admitting its bogosity.

On the other hand, I have a lot of sympathy for the point made by "Tony2" in the comments, to the effect that the rendering of technical inventions into patents is the semantic equivalent of translating them into a foreign language spoken only by a specialized community. Bogus claims or not, I find as a technical person I can't make a lot of sense out of patent language. It's completely understandable that the inventor on this patent wouldn't be fluent in this foreign language and would trust that people paid hundreds of dollars per hour - the application-drafting lawyers - would in fact do their jobs.

So, yeah. Funny. And also kind of sad.

Wi-Fi Prevails at Boston Airport

Wi-Fi Prevails at Boston Airport:

Continental Airlines set up a free wi-fi access point at Boston’s Logan Airport. Massport, which runs the airport, forced Continental to shut down the AP, claiming 1) it might interfere with police communications, 2) it violated Continental’s lease, and 3) (most important) it competed with Massport’s $7.95 per day wi-fi service. (A personal aside: Massport’s only competition in bureaucratic incompetence in the Bay State is the Mass. Turnpike Authority, which brought you deadly falling ceiling tiles in the Ted Williams tunnel.)

Fortunately for those of us who travel there frequently, the FCC blocked the Massport bid for monopoly. This bodes well for entities that want to set up wireless access points - including those who dare compete with overpriced governmental offerings. This ruling is cheering for those who believe in Yochai Benkler’s approach to open wireless networks, and Jonathan Zittrain’s views on the generative Internet. It’s also nice to know that the airport can overcharge us for water, food, and other necessities, but at least may have some competition for our Internet needs.

Novell Sells Out - From GrokLaw

Novell Sells Out:

You can read the press release for yourself. Novell is paying Microsoft for its patents, and will pay royalties ongoing. Microsoft in turn promises not to sue individual non-commercial coders or paid coders who contribute to SUSE:

Under the patent agreement, both companies will make up-front payments in exchange for a release from any potential liability for use of each others patented intellectual property, with a net balancing payment from Microsoft to Novell reflecting the larger applicable volume of Microsoft's product shipments. Novell will also make running royalty payments based on a percentage of its revenues from open source products.

The two companies will work on ODF compatibility. Microsoft will push SUSE.

HP once again is there in the background, saying this is great. IBM says it is great. Intel. All the corporate dudes who showed up for Oracle's announcement. Obviously there is a corporate dance the community isn't invited to. What? They couldn't get Rob Enderle?

Here's the joint Microsoft-Novell "Letter to the FOSS Community" if you wish to observe the spin about how great this is "for the Linux market".
Those of you who think the most important goal is market share will be happy. Those of you who think freedom matters will want to throw up.

Excuse me while I go throw up. I gather Microsoft no longer thinks Linux is a cancer or communism. Now it just wants a patent royalty from it. Wasn't that kinda SCO's dream at first? A kind of royalty on every box sold, every server shipped? Blech. And this "patent promise" is only for SUSE, so that tells the discerning observer that Microsoft will likely be suing others. As for Novell, if history means anything, it will end up Microsoft roadkill. It's so funny to me that nobody ever remembers what comes *after* the Embrace.

October 09, 2006

From the Trademark Blog

In a step assured to produce yet more litigation...
They Signed You Dilution Bill, Now You're A Law:

im just a bill.jpg

Bush signed the Dilution bill on Friday. Lyrics to 'I'm just A Bill' here.

Trademark Dilution Revision Act of 2006 (Enrolled as Agreed to or Passed by Both House and Senate)



One Hundred Ninth Congress

of the

United States of America


Begun and held at the City of Washington on Tuesday,

the third day of January, two thousand and six

An Act

To amend the Trademark Act of 1946 with respect to dilution by blurring or tarnishment.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


(a) Short Title- This Act may be cited as the `Trademark Dilution Revision Act of 2006'.

(b) References- Any reference in this Act to the Trademark Act of 1946 shall be a reference to the Act entitled `An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes', approved July 5, 1946 (15 U.S.C. 1051 et seq.).


Section 43 of the Trademark Act of 1946 (15 U.S.C. 1125) is amended--

(1) by striking subsection (c) and inserting the following:

`(c) Dilution by Blurring; Dilution by Tarnishment-

`(1) INJUNCTIVE RELIEF- Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.

`(2) DEFINITIONS- (A) For purposes of paragraph (1), a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner. In determining whether a mark possesses the requisite degree of recognition, the court may consider all relevant factors, including the following:

`(i) The duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties.

`(ii) The amount, volume, and geographic extent of sales of goods or services offered under the mark.

`(iii) The extent of actual recognition of the mark.

`(iv) Whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register.

`(B) For purposes of paragraph (1), `dilution by blurring' is association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. In determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following:

`(i) The degree of similarity between the mark or trade name and the famous mark.

`(ii) The degree of inherent or acquired distinctiveness of the famous mark.

`(iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark.

`(iv) The degree of recognition of the famous mark.

`(v) Whether the user of the mark or trade name intended to create an association with the famous mark.

`(vi) Any actual association between the mark or trade name and the famous mark.

`(C) For purposes of paragraph (1), `dilution by tarnishment' is association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark.

`(3) EXCLUSIONS- The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:

`(A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with--

`(i) advertising or promotion that permits consumers to compare goods or services; or

`(ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

`(B) All forms of news reporting and news commentary.

`(C) Any noncommercial use of a mark.

`(4) BURDEN OF PROOF- In a civil action for trade dress dilution under this Act for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that--

`(A) the claimed trade dress, taken as a whole, is not functional and is famous; and

`(B) if the claimed trade dress includes any mark or marks registered on the principal register, the unregistered matter, taken as a whole, is famous separate and apart from any fame of such registered marks.

`(5) ADDITIONAL REMEDIES- In an action brought under this subsection, the owner of the famous mark shall be entitled to injunctive relief as set forth in section 34. The owner of the famous mark shall also be entitled to the remedies set forth in sections 35(a) and 36, subject to the discretion of the court and the principles of equity if--

`(A) the mark or trade name that is likely to cause dilution by blurring or dilution by tarnishment was first used in commerce by the person against whom the injunction is sought after the date of enactment of the Trademark Dilution Revision Act of 2006; and

`(B) in a claim arising under this subsection--

`(i) by reason of dilution by blurring, the person against whom the injunction is sought willfully intended to trade on the recognition of the famous mark; or

`(ii) by reason of dilution by tarnishment, the person against whom the injunction is sought willfully intended to harm the reputation of the famous mark.

`(6) OWNERSHIP OF VALID REGISTRATION A COMPLETE BAR TO ACTION- The ownership by a person of a valid registration under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register under this Act shall be a complete bar to an action against that person, with respect to that mark, that--

`(A)(i) is brought by another person under the common law or a statute of a State; and

`(ii) seeks to prevent dilution by blurring or dilution by tarnishment; or

`(B) asserts any claim of actual or likely damage or harm to the distinctiveness or reputation of a mark, label, or form of advertisement.

`(7) SAVINGS CLAUSE- Nothing in this subsection shall be construed to impair, modify, or supersede the applicability of the patent laws of the United States.'; and

(2) in subsection (d)(1)(B)(i)(IX), by striking `(c)(1) of section 43' and inserting `(c)'.


(a) Marks Registrable on the Principal Register- Section 2(f) of the Trademark Act of 1946 (15 U.S.C. 1052(f)) is amended--

(1) by striking the last two sentences; and

(2) by adding at the end the following: `A mark which would be likely to cause dilution by blurring or dilution by tarnishment under section 43(c), may be refused registration only pursuant to a proceeding brought under section 13. A registration for a mark which would be likely to cause dilution by blurring or dilution by tarnishment under section 43(c), may be canceled pursuant to a proceeding brought under either section 14 or section 24.'.

(b) Opposition- Section 13(a) of the Trademark Act of 1946 (15 U.S.C. 1063(a)) is amended in the first sentence by striking `as a result of dilution' and inserting `the registration of any mark which would be likely to cause dilution by blurring or dilution by tarnishment'.

(c) Cancellation- Section 14 of the Trademark Act of 1946 (15 U.S.C. 1064) is amended, in the matter preceding paragraph (1) by striking `, including as a result of dilution under section 43(c),' and inserting `, including as a result of a likelihood of dilution by blurring or dilution by tarnishment under section 43(c),'.

(d) Marks for the Supplemental Register- The second sentence of section 24 of the Trademark Act of 1946 (15 U.S.C. 1092) is amended to read as follows:

`Whenever any person believes that such person is or will be damaged by the registration of a mark on the supplemental register--

`(1) for which the effective filing date is after the date on which such person's mark became famous and which would be likely to cause dilution by blurring or dilution by tarnishment under section 43(c); or

`(2) on grounds other than dilution by blurring or dilution by tarnishment, such person may at any time, upon payment of the prescribed fee and the filing of a petition stating the ground therefor, apply to the Director to cancel such registration.'.

(e) Definitions- Section 45 of the Trademark Act of 1946 (15 U.S.C. 1127) is amended by striking the definition relating to the term `dilution'.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

May 16, 2006

Supreme Court Reverses Dangerous Injunction Rule in eBay Patent Case

Supreme Court Reverses Dangerous Injunction Rule in eBay Patent Case:

Four Justices Question Patent Trolls and Business Methods Patents in Concurring Opinion

San Francisco - The United States Supreme Court reversed a lower court decision in the controversial eBay v. MercExchange patent case Monday, invalidating a dangerous precedent that threatened free speech and consumers' rights. Four justices also joined in a concurring opinion questioning so-called "patent trolls" and business methods patents, which could foreshadow future intellectual property showdowns in the nation's highest court.

In Monday's decision, the court unanimously held that issuing automatic injunctions in patent cases improperly removed discretion from trial judges to weigh competing factors, including the effect that enforcing the patent would have on the public interest. This follows the reasoning outlined in a friend-of-the-court brief filed by the Electronic Frontier Foundation (EFF), which urged the justices to overrule the lower court and protect the public interest in free speech, innovation, and education.

"More and more people are using the Internet to exercise free speech and other individual rights," said Staff Attorney Jason Schultz, one of the authors of the EFF brief. "The court's ruling will allow judges to protect those rights in patent cases."

The lower court's ruling stemmed in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress. Additionally, the concurrence written by Justice Anthony Kennedy and joined by Justices David Souter, John Paul Stevens, and Stephen Breyer noted that the current patent system may be suffering ill effects from business method patents and so-called "patent troll" companies.

"An industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees," Justice Kennedy wrote. "In addition injunctive relief may have different consequences for the burgeoning number of patents over business methods … the potential vagueness and suspect validity of some of these patents may affect the calculus under the four-factor test."

As a result of the Supreme Court's opinion, the case will now return to the trial court to reconsider its decision on the injunction.

For the full Supreme Court opinion:

For Justice Kennedy's concurring opinion:

For EFF's amicus brief:

For EFF's patent-busting project:


Jason Schultz
Staff Attorney
Electronic Frontier Foundation

May 11, 2006

AOL Starts Pay-to-Send Email Shakedown

AOL Starts Pay-to-Send Email Shakedown:

"Certified Mail" Allows Mass Mailers to Bypass Spam Filters

San Francisco - AOL has quietly flipped the switch on its "certified mail" service, delivering pay-to-send email to some of its millions of customers.

The Goodmail CertifiedEmail service allows large mass-emailers to pay a fee to bypass AOL's spam filters and get guaranteed delivery directly into AOL customers' inboxes. The Electronic Frontier Foundation (EFF) believes the pay-to-send model could leave nonprofits, small businesses, and other groups with increasingly unreliable service.

"Many groups suffer from what the Wall Street Journal called 'spam filters gone wild,' and their email never reaches many on their mailing lists," said EFF Activism Coordinator Danny O'Brien. "With AOL's system in place, AOL will be taking money from big companies to skip those filters entirely. If ISPs can make money for a premium service that evades their malfunctioning filters, we worry that they won't fix those filters for groups who do not pay."

While the creators of "certified mail" claim that their programs help customers recognize legitimate worthy causes and vital banking mail in their inbox, the first pay-to-send mailing spotted by EFF was a promotion for Overstock has every right to reach customers who signed up for their mailing list, but just because corporations have the money to pay for email delivery doesn't make that mail more important than any other non-commercial mail.

"We already know what commercial, paid-for mass mail is, but we don't call it certified mail. We call it junk mail," said O'Brien. "Why should paying ISPs for delivery let some companies gain special access to your inbox?"

EFF and hundreds of other groups have joined together in the coalition, which formed to urge AOL and other ISPs to reject pay-to-send schemes. However, in a pointed example of how ISP control of your inbox can go wrong, last month AOL silently started dropping email that even mentioned After EFF publicized the problem, AOL quickly rectified the situation.

For more on the Coalition:

For more on AOL's CertifiedEmail launch:


Danny O'Brien
Activism Coordinator
Electronic Frontier Foundation

May 06, 2006

Quite Intersting

LawPundit :: Law : Information Technology : Intellectual Property : Current Events:

Absurd US Patent Law Saga Continues 

Dear Readers,

This is our last post on the US patent law situation and perhaps our last post on LawPundit period. We are so fed up with the idiocy of the US patent law system and the apparent lack of any sense in the US legal community on this issue, that we think it is time we retire from this field and leave it to those who truly have no clue. haw a posting titled Another patent owner, another BlackBerry lawsuit where they write:

"A small company is threatening to darken the screens of BlackBerry devices in a case of deja vu for the manufacturer Research In Motion. Just two months after settling with NTP, another patent owner, Visto, is suing RIM over wireless email patents.
Buoyed with confidence from recent jury and US Patent Office endorsements for its intellectual property, Visto announced on Monday that RIM should pay damages, destroy all BlackBerry devices in the US and ban future sales because it has infringed four Visto patents."

Brilliant. Only a totally flawed patent system could lead to this kind of ludicrousy.

You idiots. And by idiots, I mean specifically the US legal community.

: Permalink : Andis Kaulins : 5/06/2006 11:47:00 PM

May 02, 2006

DNS Perils Popularized

DNS Perils Popularized:

Interesting paper here:

The primary contribution of this paper is to expose
the inherent risks involved in a basic Internet service.

Perils of Transitive Trust in the Domain Name System, Venugopalan Ramasubramanian and Emin Gun Sirer, In Proceedings of Internet Measurement Conference (IMC), Berkeley, California, October, 2005.

Well, no, not really. All the risks mentioned in the paper are common knowledge among people who deal with these things.

These risks create an artificial dilemma between failure resilience, which argues for more geographically distributed nameservers, and security, which argues for fewer centralized trusted nodes.

Well, no, not really. Fewer centralized trusted nodes wouldn't necessarily increase security; they'd just reduce the number of targets that would be worth attacking. While a smaller trusted computing base may be better for security within a single organization, it's not clear it is better for security of a distributed service such as DNS across the distributed Internet.

The paper further expresses surprise to find that many DNS servers are run by gasp academic institutions! The paper says such institutions do not have a financial relationship with the domains they serve and thus no fiduciary incentives to do it right. That's true, but fiduciary incentives are not the only incentives, and the more diverse the administrators of DNS servers the less likely they are all to be simultaneously compromised by commercial or political pressures.

The paper goes on to document specific numbers of vulnerable nameservers. This information could be used to help fix the problem.


Of the 166771 nameservers we surveyed, 27141 have known vulnerabilities.

This is a step in the direction of a reputation system. Why not take the next two steps?

Here's a rough sketch of a DNS reputation system:

  1. Find out which DNS servers are running old buggy versions of software. OK, the authors of the paper claim to have done this.

  2. Inform the administrators of those DNS servers,
    and give them a fixed time in which to fix them.

  3. Then publish the names and addresses of those that don't.

If that step (3) seems too draconian, use the dependency graph to determine what other nameservers depend on the buggy servers, and tell the administrators of the dependant nameservers. Might as well recommend DNSSEC while you're at it. And of course iterate so as to check back later on all the surveyed nameservers.

In other words, don't throw out the baby with the bathwater by centralizing nameserver. Instead, leverage the open decentralized nature of the Internet to fix the problem.


PS: This paper seen on Dave Farber's Interesting People list. It has also been noted in a BBC story.

April 04, 2006 (Intellectual Property News Agency)AGIPNEWS2906 (Intellectual Property News Agency)AGIPNEWS2906:

USPTO Orders Reexamination at EFF's Request

SAN FRANCISCO - The Electronic Frontier Foundation (EFF) announced in a Tuesday press release that at its request, the US Patent and Trademark Office (USPTO) agreed to reexamine an illegitimate patent held by Clear Channel Communications.

The patent - for a system and method of creating digital recordings of live performances - locks musical acts into using Clear Channel technology and blocks innovations by others.

"The Patent Office agrees that there are serious questions about the patent's validity," said EFF Staff Attorney Jason Schultz. "This is a significant victory for artists and innovators harmed by Clear Channel's patent and for anyone concerned about overreaching, illegitimate patents."

Clear Channel now has two months to file comments defending its patent, to which EFF will get to respond. The USPTO will then determine whether to invalidate the patent. In roughly 70% of instances like this one in which a request for reexamination is granted, the patent is narrowed or completely revoked.

"Patents serve an important role in our economy," added Schultz. "Keeping illegitimate patents out of that system benefits all of us, helping up-and-coming artists and entrepreneurs."

EFF filed the request for reexamination in conjunction with Theodore C. McCullough of the Lemaire Patent Law Firm and with the help of students at the Glushko-Samuelson Intellectual Property Clinic at American University's Washington College of Law. The Clear Channel patent challenge is part of EFF's Patent Busting Project, aimed at combating the chilling effects bad patents have on public and consumer interests. The Patent Busting Project seeks to document the threats and fight back by filing requests for reexamination against the worst offenders.

The Electronic Frontier Foundation is a nonprofit group of lawyers, technologists, volunteers, and visionaries working to protect digital rights.

April 02, 2006

Thinking Shouldn't Be Illegal - JSQ

Thinking Shouldn't Be Illegal:

I'm a little surprised to find myself in wholehearted agreement
with Michael Crichton, after what I wrote about
his essay about alarmism
But his recent New York Times op-ed
says something clear, simple, and important:

Actually, I can't make that last statement. A corporation has patented
that fact, and demands a royalty for its use. Anyone who makes the fact
public and encourages doctors to test for the condition and treat it can
be sued for royalty fees. Any doctor who reads a patient's test results
and even thinks of vitamin deficiency infringes the patent. A federal
circuit court held that mere thinking violates the patent.

This Essay Breaks the Law

by Michael Crichton,
The New York Times,
OP-ED Section,
Sunday, March 19, 2006

Maybe this will convey to more people that

Software Patent Reform

and patent reform in general is needed.

One reason proponents of software patent reform don't get very far
is that big pharma likes patents broken just the way they are,
so that they can own profitable things such as parts of the human genome.
As Crichton says:

Do you want to be told by your doctor, "Oh, nobody studies your disease
any more because the owner of the gene/enzyme/correlation has made it
too expensive to do research?"

The question of whether basic truths of nature can be owned ought not
to be confused with concerns about how we pay for biotech development,
whether we will have drugs in the future, and so on. If you invent a new
test, you may patent it and sell it for as much as you can, if that's your
goal. Companies can certainly own a test they have invented. But they
should not own the disease itself, or the gene that causes the disease,
or essential underlying facts about the disease. The distinction is
not difficult, even though patent lawyers attempt to blur it. And even
if correlation patents have been granted, the overwhelming majority of
medical correlations, including those listed above, are not owned. And
shouldn't be.

I like patents.
But I think there are serious problems with the current patent process,
and I think Crichton is doing us all a favor by sounding the alarm.


March 15, 2006

What Right in Digital Actors?

What Right in Digital Actors?:

A Copyfight reader pointed me to a Slate story on digital thespians. Epstein talks about two kinds of digital creations: wholly new 'synthespians' as well as digitized representations of actual actors (Tom Hanks for Polar Express; Sean Connery for the From Russia with Love game). Although the technical hurdles to such captures remain quite large - especially if your goal is true-to-life, fool-an-audience reproduction - the reader's question was different.

To wit: what rights do you purchase/license/contract for in creating such a reproduction of a real person? Rights to the "likeness?" Performance rights? Do either of these cover things the actor never physically did or said? Is there an exclusivity clause? There are clearly some issues around the ownership of a character, if that character has appeared before (e.g. Connery's Bond) but usually the character rights reside with the studio. But if you want the Connery Bond instead of a generic James Bond you also have to incude Connery in the deal, as well as whatever studio or estate has the Bond character rights.

IANAL, but I'm hoping some of my readers are or can point me to resources from people who've actually worked in this area.

March 10, 2006

Having great difficulties....

trying to get this blog recognized by Technorati despite this Technorati Profile. We're getting to think they just don't love us.

January 27, 2006

Supreme Court Tackles Dangerous Patent Ruling

Supreme Court Tackles Dangerous Patent Ruling:

EFF Asks Justices to Consider Critical Free-Speech Implications

San Francisco - The Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief with the United States Supreme Court Thursday, asking justices to overturn a court ruling in a patent case with dangerous implications for free speech and consumers' rights. The Public Patent Foundation, the American Library Association, the American Association of Law Libraries, and the Special Library Association joined EFF on the brief.

At issue is a case involving online auctioneer eBay and a company called MercExchange. Last year, the Federal Circuit Court of Appeals ruled that eBay violated MercExchange's online auction patents and that eBay could be permanently enjoined, or prohibited, from using the patented technology. But as part of the ruling, the court came to a perilous conclusion, holding that patentees who prove their case have a right to permanent injunctions under all but "exceptional circumstances," like a major public health crisis. This radical rule created an "automatic injunction" standard that ignored the traditional balancing and discretion used by judges to consider how such a decision might affect other public interests--including free speech online.

"As more and more people use software and Internet technology to express themselves online, the battle over software patents has grave implications for online speech," said EFF Staff Attorney Corynne McSherry. "Courts must work harder than ever to ensure that technologies like blogs, email, online video, and instant messaging remain free and available to the public."

The lower court's ruling stems in part from a misperception that patents are just like other forms of property, with the same rights and remedies. However, Supreme Court rulings have repeatedly emphasized that patents are a unique form of property, designed to achieve a specific public purpose: the promotion of scientific and industrial progress.

"Part of the court's duty in patent cases is to make sure that the system helps the public's right to free speech instead of hurting it," said EFF Staff Attorney Jason Schultz. "If this ruling is allowed to stand, courts won't be able to do what's right."

For the full brief:

For more on patents and how bad law can hurt the public:


Corynne McSherry
Staff Attorney
Electronic Frontier Foundation

Jason Schultz
Staff Attorney
Electronic Frontier Foundation

April 10, 2005

WIPO Politics, Quantified (Donna Wentworth)

WIPO Politics, Quantified (Donna Wentworth): "

Earlier this week, David Bollier wrote about how the US and other wealthy nations are pushing developing countries to adopt ever-ratcheting intellectual property protection as an end in itself even as they consider for themselves the smarter approach -- judging a specific IP protection by its performance.

As CPTech's Jamie Love observes in The Financial Times, 'Regardless of what is said in Delhi, back home wealthy countries are backing open standards for the Internet, open-source software, open-access archives for publicly funded scientific research, public domain databases like the Human Genome Project or the HapMap Project and similar open initiatives.' Why? Because there are considerable social and economic benefits to doing so.

Now, in anticipation of next week's historic WIPO Development Agenda meetings (April 11-13), a number of public-interest groups are working together to ensure that all of the delegates have the tools to argue for IP law and policy that accords with their own national best interests. As my EFF colleague Cory Doctorow points out over BoingBoing, this includes a clear-eyed look at what wealthy nations are saying in Geneva while reserving for themselves the luxury of exploring more intelligent approaches at home.

Love has stepped up to bat, providing (1) links to various countries' proposals for interpreting the Development Agenda and (2) a telling 'scorecard' of key words in the proposals, providing an at-a-glance analysis of substantive slant.

Compare and contrast the scorecard for the US and the 'Friends of Development,' which includes Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela:

USA [Proposal]
All words: 3,059
Abuse: 0
Access: 3
Access to knowledge: 0
Anticompetitive: 0
Consumer: 0
Doha Declaration on the TRIPS: 0
Education: 6
Exceptions: 0
Human Rights: 0
Limitations: 0
Market failure: 0
Monopoly: 0
Open source: 0
Poverty: 0
Public Health: 0

Friends of Development (14 countries) [Proposal]
All words: 12,040
Abuse: 6
Access: 3
Access to knowledge: 7
Anticompetitive: 4
Consumer: 9
Doha Declaration on the TRIPS: 3
Education: 3
Exceptions: 3
Human Rights: 2
Limitations: 4
Market failure: 0
Monopoly: 6
Open source: 1
Poverty: 1
Public Health: 5

Here we can see even more clearly the farce the WIPO Secretariat is carrying out by barring participation in these meetings by groups that are among the best-qualified to be there. Groups that were founded to address the issues the US isn't addressing.

Bonus headline for the 'big media' journalists who ought to be covering this story: 'IP Justice Barred From Meetings to Address IP Justice.' It would be funny if it weren't true.

Two more of my EFF colleagues, Gwen Hinze and Ren Bucholz, will be blogging these meetings next week over at Deep Links, and I'll be alerting you to new posts here at Copyfight. Stay tuned.


(Via Copyfight.)

April 08, 2005

Bollier on US Hypocrisy Regarding IP Policy for Developing Countries (Donna Wentworth)

Bollier on US Hypocrisy Regarding IP Policy for Developing Countries (Donna Wentworth): "

Public Knowledge co-founder David Bollier has a must-read piece on the current machinations at WIPO and the 'irony -- if not hypocrisy -- that there is growing debate within the United States and Europe about the actual value of strict IP rules even as they press poor countries to adopt the West's legal regime':

While the US and Europe mull such changes, they are pressuring India to adopt a strong patent law that sanctions only closed and proprietary models for controlling access to knowledge.

Why such intransigence in the West about relaxing IP rules in order to help the poorest, most needy nations develop? Perhaps because in this time of American triumphalism, the West thinks it can prevail through sheer force. This is apparently the plan at WIPO, which has refused even to allow an open debate on the issue.


(Via Copyfight.)

April 06, 2005

WIPO Spins Lockout of Civil Society Groups (Donna Wentworth)

WIPO Spins Lockout of Civil Society Groups (Donna Wentworth): "

In advance of the controversial WIPO Development Agenda meetings next week, David Tannenbaum provides excellent preemptive spin-control on WIPO's preemptive spin (hyperlink, mine):

This media advisory suggests that the General Assembly language binds the secretariat to close out civil society NGOs, but the restrictive gloss on this language is a creation of the secretariat alone.

Previous relevant Copyfight coverage here and here.

Update: More preemptive spin control reported @ IP Watch: The Friends of Development detail their proposals for WIPO reform and rebut US representatives' counter-proposal aimed at minimizing/containing the Development Agenda: '[The] Friends of Development emphasized their view that 'the development dimension of intellectual property is not the same thing as technical assistance.' They affirmed that they attach importance 'to the role of intellectual property in the path towards development' and stressed their belief that 'WIPO could have a new role…if it incorporates the development dimension into its work.''


(Via Copyfight.)

March 25, 2005

WIPO Lockout Inspires Global Protest

WIPO Lockout Inspires Global Protest: "

Residents of 56 Nations and Members of Hundreds of NGOs Sign Petition to Open Meetings on Intellectual Property and the Developing World

Geneva - When the World Intellectual Property Organization (WIPO) earlier this month shut out many public interest groups from two April meetings about the impact of patent, copyright and related regimes on the developing world, many civil society groups greeted the news with concern.

Most of the groups barred from the meetings, which are to focus on whether WIPO should adopt a 'Development Agenda,' are public interest organizations with special expertise on issues of economic development. Without the input of these groups, the meetings can do little to further WIPO's understanding of how patents, copyright, and related rights affect developing nations.

Seeking a more balanced discussion of the Development Agenda, two Brazilian activists, Pedro de Paranagua Moniz and Pedro AD Rezende, as well as the Electronic Frontier Foundation's European Affairs Coordinator, Cory Doctorow, took action: they produced an open letter to WIPO on this issue and solicited comments on the Internet.

As a result, this week over 800 individuals and groups, including EFF, signed an open letter to WIPO urging it to allow more groups to participate in these historic meetings. Residents of 56 different nations signed on, along with members of non-government organizations (NGOs) ranging from a Brazilian AIDS health group to Yale University. The letter, called the 'WIPO Manifesto for Transparency, Participation, Balance and Access,' asks that public interest NGOs be allowed to participate in the Development Agenda meetings as ad hoc observers and calls on WIPO to provide assistance in creating a global regime that facilitates open access to knowledge.

'WIPO is undertaking a long-overdue and halting journey from a place where industrial interests meet to safeguard their marketplace advantages, to a place where the UN's humanitarian values hold center stage,' said Doctorow. 'This letter is the latest step in the important campaign to refocus WIPO on providing effective technical assistance that meets the real needs of its developing country members.'

The open letter was delivered to Dr. Kamil Idris, Director General of WIPO, on March 23, 2005, with more than 800 signatories, and it is still open for signature.


Cory Doctorow
European Affairs Coordinator
Electronic Frontier Foundation

Gwen Hinze
International Affairs Director
Electronic Frontier Foundation


(Via EFF: Press.)

February 19, 2005

The Definition of Internet Governance a la WGIG

Once again, users are ignored. Thank the Gods that Karl Auerbach once again is here to point it out. How unfortunate that the UN has fallen into the same trap that doomed ICANN from the start.

Below are my latest comments for the UN's Working Group on Internet Governance (WGIG). (A few typos have been corrected.)

Comments of Karl Auerbach
Former North American Elected Director, ICANN

Regarding the document working definition of internet governance, posted at

In the second paragraph the listed participants in this system of governance are:

  • governments
  • the private sector
  • civil society
  • international organizations.

Sadly, this list does not include living, breathing, thinking people.

Has the concept of governance fallen so low that people no longer have a place?

Why should legal fictional persons (i.e. corporations) receive seats via "the private sector" while those who ultimately endure and suffer the burdens of governance and who ultimately pay the price of governance, the individual people of the nations of the Earth, are excluded?

The claim has been made many times that "people don't [need] entrée into the halls of internet governance because they are represented by their respective government[s]." Were that claim true then "the private sector" and "civil society" would also be represented by their governments.

Do we really want the internet to be regulated through a system of governance that is based on preference for some and exclusion of others?

[CaveBear Blog]

January 25, 2005

EFF Announces Endangered Gizmos List (Donna Wentworth)

Here is one of the reasons I've been relatively scarce of late -- we at EFF have been working on a brand new campaign to demonstrate the many ways that the copyright cartel is spoiling the environment for innovation:

FCC Chairman Michael Powell calls TiVo "God's machine," and its devotees have been known to declare, "You can take my TiVo when you pry it from my cold, dead fingers!" But suppose none of us had ever been given the opportunity to use or own a TiVo -- or, for that matter, an iPod? Suppose instead that Hollywood and the record companies hunted down, hobbled, or killed these innovative gizmos in infancy or adolescence, to ensure that they wouldn't grow up to threaten the status quo?

That's the strategy the entertainment industry is using to control the next generation of TiVos and iPods. Its arsenal includes government-backed technology mandates, lawsuits, international treaties, and behind-the-scenes negotiations in seemingly obscure technology standards groups. The result is a world in which, increasingly, only industry-approved devices and technologies are "allowed" to survive in the marketplace.

This is bad news for innovation and free competition, but it also threatens a wide range of activities the entertainment conglomerates have no use for -- everything from making educational "fair" use of TV or movie clips for a classroom presentation, to creating your own Daily Show-style video to make a political statement, to simply copying an MP3 file to a second device so you can take your music with you.

Rather than sit back and watch as promising new technologies are picked off one-by-one, EFF has created the Endangered Gizmos List to help you defend fair use and preserve the environment for innovation.

For more on precisely these themes, check out:


September 25, 2004

WIPO 2.0: A Declaration for the Future of IP (Donna Wentworth)

There's a battle going on at the World Intellectual Property Organization (WIPO) -- one that could accurately be described as a struggle for the soul of the organization. The central question is whether WIPO will coninue to promote the protection of intellectual property for its own sake -- IP "uber alles" -- or, as a number of developing countries and others are advocating, pursue a range of initiatives that reflect such notions as "balance," "innovation," or "access." What's at stake is much more significant than the harmony or disharmony of IP regulations. As James Boyle points out in his Manifesto on WIPO and the Future of Intellectual Property, WIPO decisions affect everything from the availability and price of AIDS drugs, to the patterns of international development, to the communications architecture of the Internet.

Jamie Love of the Consumer Project on Technology (CPTech) has been working at the front lines of this battle for many years, and today he forwarded a document proposing that WIPO formally adopt a "development agenda" and other reforms to unlock the organization's considerable power to help humanity. The document, called the Geneva Declaration on the Future of the World Intellectual Property Organization, lists a number of problems that a new direction for WIPO could address:

  • Without access to essential medicines, millions suffer and die;
  • Morally repugnant inequality of access to education, knowledge and
    technology undermines development and social cohesion;
  • Anticompetitive practices in the knowledge economy impose enormous
    costs on consumers and retard innovation;
  • Authors, artists and inventors face mounting barriers to follow-on innovation;
  • Concentrated ownership and control of knowledge, technology, biological resources, and culture harm development, diversity, and
    democratic institutions;
  • Technological measures designed to enforce intellectual property rights in digital environments threaten core exceptions in copyright laws for disabled persons, libraries, educators, authors, and consumers, and undermine privacy and freedom;
  • Key mechanisms to compensate and support creative individuals and communities are unfair to both creative persons and consumers;
  • Private interests misappropriate social and public goods, and lock up
    the public domain.

So what's the antidote? According to the declaration, the key is recognizing the opportunities implicit in the "astoundingly promising innovations in information, medical and other essential technologies, as well as in social movements and business models" and resolving to act upon them:

Humanity stands at a crossroads -- a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from the best of these new ideas and opportunities, or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies?


The proposal for a development agenda has created the first real opportunity to debate the future of WIPO. It is not only an agenda for developing countries. It is an agenda for everyone, North and South. It must move forward. All nations and people must join and expand the debate on the future of WIPO.


Delegations representing the WIPO member states and the WIPO Secretariat have been asked to choose a future. We want a change of direction, new priorities, and better outcomes for humanity. We cannot wait for another generation. It is time to seize the moment and move forward.


Love and other supporters are seeking additional signatures. If you're interested in signing, send an email to CPTech and the good folks there will guide you through the process.


Internet Governance Has Become a Non-Issue

From CircleID

It's funny, but I recall the battle cry that the WWW was "free" back in its early days. When contributing game concept to the early and great gaming pioneers like Infocom, there was such a great esprit-du-corps amongst our team regarding the fun as well as utility that the WWW offerred. In retrospect, we were so naive. I recall the days when guys like Bill Gates prided themselves on being such a great "hackers" - it was a noble term back then. [CircleID]

September 22, 2004

EFF Files Brief in Email Privacy Case

An important privacy issue is being examined by the court. EFF is stepping up to the plate.

Councilman Case Should Be Heard Before Full Court

Boston, MA - The Electronic Frontier Foundation (EFF) today submitted a friend-of-the-court brief in a case that will have a profound effect on the privacy of Internet communications.

The brief argues that US v. Councilman, previously decided by a panel of First Circuit judges, should be reheard by the entire First Circuit Court of Appeals. In the earlier panel decision, the court ruled that it does not violate criminal wiretap laws when an email service provider monitors the content of users' incoming messages without their consent.

The defendant in the case, Bradford Councilman, is a bookseller who offered email service to his customers. Councilman configured the email processing software so that all incoming email sent from, a competitor, was secretly copied and sent to his personal email account before it arrived in the intended recipient's mailbox. The court ruled that this is legal. As the panel itself stated in the ruling, "it may well be that the protections of the Wiretap Act have been eviscerated as technology advances."

Continue reading "EFF Files Brief in Email Privacy Case" »

September 21, 2004

Linux Australia "Shot in the Dark" by MPAA (Donna Wentworth)

This following tactic is precisely what happens with domain name litigation, and causes many legitimate domain name holders to give up their rights rather than fight an expensive battle. Regardless of whether or not they will win, the fear of paying huge legal fees to ensure one's rights causes many to cave rather than fight.

One topic of discussion this weekend at the EFF staff and board retreat was what Wendy calls the "Attack of the Subpoena-bots" -- that is, the trend toward automatic weapons-style litigation campaigns. This is when companies or industry groups like the RIAA and MPAA use key-word searches and the like to target possible infringers before firing off round after round of seemingly indiscriminate cease-and-desist letters. The problem with this is that even if the recipient is 100 percent innocent, he or she may have no idea of how to respond to the intimidating legalese/exhorbitant demands in these letters. Rather than risk doing the wrong thing, and eager to avoid the expense of an attorney, the recipient frequently decides to give up rather than to fight -- leading to the widespread chill of perfectly legitimate activities.

Fortunately for the Internet community, every once in a while a stray round hits the wrong guy -- someone not only willing but eager to fight back. Which is evidently what happened when the MPAA recently sent cease-and-desist notices to Linux Australia for providing access to two copyrighted movies: "Grind" and "Twisted." Except that what Linux Australia actually did was provide access to a download of the Twisted framework written in Python, and Valgrind, a tool for developers to locate memory management.

Needless to say, Linux Australia was not amused. And as luck would have it, the group has the legal chops and resources to do something about it:

"This seems to be a huge misuse of resources, an infringement upon various global spam laws, an infringement upon our own Copyright Act under Section 102 and needless stress and cost upon small Australian organizations and companies," [Linux Australia President Pia] Smith said.


"Linux Australia is concerned that this kind of shoot-in-the-dark approach to copyright protection is potentially damaging for Australian organizations and companies," Smith added. "Organizations that participate in such behavior should be held accountable, and forced to put at least some effort into researching the validity of their keyword searches."

Here in the states we're waiting for a ruling to come down that may provide additional protection for those inappropriately targeted by infringement claims: the decision in OPG v. Diebold. As Wendy notes in a recent OJR article, there's a seldom-used section of the Digital Millennium Copyright Act (DMCA) aimed at stopping misuse: 512(f), which provides that anyone who knowingly misrepresents material as infringing "shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer."

[Section 512f] allows one who has been hit with a purposely abusive demand letter to reply, "Not only am I not in the wrong, but you don't have the right to say I am," says Seltzer.

What I'm wondering is what the court will require to prove that Diebold knowingly abused the DMCA to silence its critics -- and how that might compare to what it takes to prove that someone has knowingly violated copyright law.


September 04, 2004

We've moved the DNRC website

We've moved the blog and the entire website to new hardware. If you happen to notice anything that isn't quite working right, or any other issues regarding our site, please write to admin at netpolicy dot com. Thanks.

February 24, 2004

U.S. Still Mining Terror Data

When Congress deep-sixed the Total Information Awareness program for fear it would compromise individual privacy, the government simply moved its research to various intelligence offices. [Wired News]

February 05, 2004

Share this MP3 (MGM v. Grokster)

Also found on Wendy's Blog. There isn't much more to be said. Listen to the MP3

Here's an MP3 of yesterday's fantastic oral argument in MGM v. Grokster, before the Ninth Circuit Court of Appeals. It's public domain, so share freely on the peer-to-peer networks whose legality Fred von Lohmann and Mike Page eloquently defend.

[Wendy: The Blog]

January 27, 2004

ICC Paper on Clearing Up Confusion Over Internet Governance

This piece from could become very important in the future of Internet governance.

I just wanted to call people's attention to this International Chamber of Commerce (ICC) paper on Internet governance. I don't endorse it; haven't actually read it yet, but their say will play a big role and should be widely known: "Coming barely a month after the World Summit on the Information Society (WSIS) in Geneva, and prepared by ICC's Commmission on E-Business, IT and Telecoms, the paper divides the issue of Internet governance into three main components - technical... [CircleID]

January 21, 2004

Northwest Gave U.S. Data on Passengers

Yet another airline breaching passenger privacy, using personal information for purposes NOT disclosed. Once again we come to the obvious conclusion that a property right in personal information should belong to the INDIVIDUAL, not to the collector!

Northwest Airlines provided information on millions of passengers for a secret U.S. government air-security project soon after the Sept. 11, 2001, terrorist attacks, raising more concerns among some privacy advocates about the airlines' use of confidential customer data. [Washington Post: Front Page]

January 15, 2004

Domain registrars sued over URL patent

Take a look at THIS story. How could the USPTO be lame enough to grant a patent like this? What's next?

Two Web entrepreneurs accuse Network Solutions and of selling e-mail addresses and URLs that infringe on their naming method patent. [CNET]

January 12, 2004

U.S. to Push Airlines for Passenger Records

Despite stiff resistance from airlines and privacy advocates, the U.S. government plans to push ahead this year with a vast computerized system to probe the backgrounds of all passengers boarding flights in the United States. [Washington Post: Front Page]

December 22, 2003

Jon Johansen Cleared

In a ruling that is a victory for fair use rights, Jon Johansen has been cleared by a Norwegian court

From IP Justice

(Oslo) A Norwegian appeals court today cleared Jon Johansen of all charges for viewing his lawfully purchased DVDs on a DVD player that is not approved by the Hollywood movie studios.

The Norwegian appeals court upheld a January 2003 ruling from an Oslo City Court acquitting Johansen on all counts and rejecting the prosecutor’s theory that Johansen was guilty of violating Norwegian Criminal Code Section 145.2, which outlaws breaking into digital data that one has no right to access.  Because Johansen accessed his own DVD and did not commit any copyright infringement the city court found Johansen innocent on all counts.

The penalty for breaking this Norwegian law is two years in prison if convicted.  Johansen’s case marked the first time this law was used to prosecute someone for accessing his own property.

Johansen was first charged by the Norwegian Economic Crime Unit (OKOKRIM) at the request of the Motion Picture Association in 2000.  After the Oslo City Court acquitted Johansen in January 2003, Hollywood pressured Norwegian prosecutors to appeal the decision and the retrial was scheduled to begin on December 2nd and wrapped on the 11th.  Prosecutors may appeal this ruling to the Norwegian Supreme Court.

"It is delightful to see the Norwegian courts stand up to Hollywood and defend the rights of its citizens to engage in lawful, but unauthorized, uses of DVD movies," said IP Justice Executive Director Robin D. Gross.  "Both the Norwegian city and appeals courts have wisely recognized that when you buy a DVD, you own it; and Hollywood does not have the right to tell you how you may use your property," explained the intellectual property attorney based in San Francisco.

Johansen was represented on appeal by Halvor Manshaus from the Oslo law firm Advokatfirmaet Schjødt, who also defended Johansen at the lower court.

"The ruling draws up the line of demarcation between the interests of owners and distributors of intellectual property on the one side, and consumers on the other," stated Manshaus.  "The court mentions that optical storage media easily can be damaged, making it important for consumers to have the option of making a back-up copy within already defined "fair-use" terms. In addition, the Court states that although DeCSS can be used to make illegal copies, this was not the intent of Johansen, nor has he made copies in violation of intellectual property regulations," Manshaus added.

At 15, Johansen helped to create DeCSS, a computer program that unlocks DVDs in 1999 and first published on the Internet.  DeCSS was written as part of an effort to build a DVD player for the Linux operating system and set off a fire-storm of Hollywood lawsuits to ban the software’s publication in 1999 and 2000.

December 12, 2003

Proving once again, he who has the gold makes the rules...

Microsoft couldn't get what it wanted under US law, so it forum shopped around the world until it could find a court that would finally give it a preliminary injunction, barring rival Lindows from using the name.

Read more from InfoWorld.

December 03, 2003

How Much Is Privacy Worth?

The Supreme Court will hear arguments over whether the government is automatically on the hook for illegally releasing private data. The feds say individuals must prove harm before claiming compensation. By Ryan Singel. [Wired News]

November 26, 2003

Army Quietly Opens JetBlue Probe

Two months after the airline admitted coughing up passenger records to a defense contractor, the Army finally says it's investigating the matter. By Ryan Singel. [Wired News]

October 27, 2003

Cyberpiracy north of the border

Michael Geist - outspoken Canadian Law Professor offers a unique perspective on fairness, Internet freedom, and how Canadians view "DMCA Gone Wrong." Well worth the read.

Are Canada's file swappers next in line to be prosecuted? The University of Ottawa Internet expert Michael Geist tells CNET what to expect.

Is Canada a freer country when it comes to the Internet, as a result?

Based on an innovation perspective, we haven't run into the same problems the United States has, with lawsuits brought against researchers, garage door manufacturers and printing companies. Most Canadians look at those cases and are rather puzzled. [CNET]

October 23, 2003

CAN SPAM Bill Passes Senate Unanimously

The Senate has passed S.877 the Anti-Spam bill introduced by Senator Conrad Burns (R-MT) and Ron Wyden (D-OR). The main provisions of the bill provide the Federal Trade Commission, attorneys general and Internet Service Providers more tools to go after commercial mailers who deliberately conceal the routing information of their messages. Several amendments where added to the bill at the last minute including a provisions to: encourage bounty hunters to track down spammers; create a do-not-spam list to be run by the FTC; and a labeling requirement for pornographic messages. October 23, 2003 [Center for Democracy and Technology]

Comments to DNRC Website

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If you have comments to individual articles, please submit them to admin at netpolicy dot com and we will post them if they are not spam, or post to the forums. Thank you for understanding.

October 22, 2003

Why Do We Care About Names and Numbers?

An interesting article on one perspective on why names and numbers are important to the Internet

An article based on the most recent study for the European Commission on the Policy Implications of Convergence in the Field of Naming, Numbering and Addressing written by Joe McNamee and Tiina Satuli of Political Intelligence.

"With relation to the Internet and also IP addresses, the "scarcity" is more complicated: there are not only intellectual property issues with regards to domain names, but there is also an issue of managing the integrity of the system. For any naming... [CircleID]

October 21, 2003

CDT Urges Action on Anti-Spam Legislation, Opposes Labeling

CDT's information is well worth looking at.

CDT urged members of the House Commerce Committee to support balanced spam legislation containing an anti-spoofing provision and opt-out, but warned that a labeling provision in the current draft was probably unconstitutional. CDT called for the addition of a private right of action and recommended that states be preempted from regulating spam only for a few years, to see if the federal law was having an impact. Anti-spam bills have been stalled in both houses of Congress. A controversial proposal for a Do-Not-Spam List is the stumbling block in the Senate. October 16, 2003 [Center for Democracy and Technology]

October 16, 2003

Feds admit error in hacking conviction

Federal prosecutors ask an appeals court to reverse a computer-crime conviction that punished a California man for notifying a company's customers of a flaw in its e-mail service.

Filed on Tuesday in San Francisco's Ninth District Court of Appeals, the unusual request conceded that federal prosecutors in Los Angeles erred in bringing a criminal case against, and obtaining the conviction of, 30-year-old Bret McDanel. The one-time system administrator has already served his 16-month sentence and is currently on supervised release, during which time his access to computers is curtailed.

The conviction stems from an incident in September 2000, when McDanel notified the customers of his former employer--Tornado Development, which has since closed its doors--that the company's Web-based e-mail system had a flaw that could allow an attacker to gain access to a user's e-mail. The prosecutors successfully argued that that act--and the 5,600 e-mails sent to customers--had essentially damaged Tornado's system.


October 15, 2003

Senators Introduce Bipartisan Effort to Curb PATRIOT Act Powers

The Center for Democracy and Technology has spearheaded an excellent effort that should be supported by freedom loving citizens.

Three Republican Senators and four Democrats last week proposed legislation to add procedural safeguards to some of the most far-reaching sections of the PATRIOT Act. The SAFE Act, S. 1709, is spearheaded by Senators Craig (R-ID) and Durbin (D-IL). It covers sneak & peek searches (secret searches of homes and offices in ordinary criminal cases) and the PATRIOT Act provision granting broad access to sensitive personal information in the hands of businesses. It also specifies limits on roving wiretaps and would "sunset" some additional provisions of the PATRIOT Act at the end 2005. October 15, 2003 [Center for Democracy and Technology]

October 07, 2003

The Aftermath: How ISPs Responded to Site Finder Around the World

It is heartening to know that the Internet still "routes around breakage" in this manner

During the 2+ weeks for which Site Finder was operational, a number of ISPs took steps to disable the service. A study just released reveals details and analysis, including specific networks disabling Site Finder during its operational period. For example, China blocked the traffic at its backbone, and Taiwan's Chunghwa Telecom and Korea's DACOM also disabled the service. US ISPs seem to have been slower to act, in general -- but US ISP Adelphia disabled the service September 20-22... [CircleID]

September 28, 2003

Remembering the People Who Give Back to the Net, and All of Us

From Dan Gilmor's eJournal

The Internet has become a grossly commercialized Wild West in so many ways. But the community spirit on which it was founded is alive and well. The Net depends on the same spirit that motivates volunteers in the physical world: a commitment to solve problems and make life better for those who might otherwise not have the resources or expertise. [Dan Gillmor's eJournal]

Our Apologies Again

It seems that our T1 line into DNRC headquarters has decided it is time to give up the ghost after over 10 years of service. The doomed cable is scheduled to be replaced "sometime soon." We are now back up for the foreseeable future, and are hoping that the replacement is sooner, rather than later, and goes smoothly.

September 27, 2003

First Law of the Internet

From Karl Auerbach

Several times over the last few years I have referred to a formulation that I call "The First Law of the Internet".

I believe that this First Law represents the proper balance between public and private effects of internet activity. This First Law is in need of significant refinement, but is there anyone out there who believes that this First Law does not point the proper direction? If so, I encourage the articulation of that view.

Continue reading "First Law of the Internet" »

September 24, 2003

Power Has Been Restored

Power to DNRC Headquarters was restored yesterday at approximately 3pm. A big Thank You to Dominion Virginia Power. May everyone else come back online quickly as well.

September 21, 2003

Our Apologies

You may have noticed that the DNRC website has been up and down quite a bit over the past four days. Hurricane Isabel has knocked out power to DNRC headquarters, and our only power is a small generator that we can only keep on intermittently. The Dominion Power crews are in the area, and we are hopeful to have power soon. Please excuse our absence.

September 18, 2003

Australian legislation cooks spammers

Yet another country beats the US to spam legislation.

Spammers could incur up to $733,000 in penalties per day for sending junk e-mail--and one lawmaker calls on the United States to follow suit with similar legislation. [CNET]

UK bans spam messages

The UK has made spam a criminal offence to try to stop the flood of unsolicited messages. [BBC News | TECHNOLOGY]

September 17, 2003

Bug Reveals the Snooper in VeriSign's Site Finder

And the plot thickens. Check this out from CircleID
Here's another interesting angle on the Verisign Site Finder Web site. VeriSign has hired a company called Omniture to snoop on people who make domain name typos. I found this Omniture Web bug on a VeriSign Site Finder Web page... [CircleID]

September 02, 2003

Privacy Groups File Brief in Supreme Court Privacy Act Case

EPIC, CDT and other privacy groups filed a "friend of the court" brief in the US Supreme Court arguing that the federal Privacy Act authorizes citizens to collect minimum monetary awards when the government has breached their privacy, without having to quantify their damages. The brief argues that this concept of liquidated damages is crucial to the enforcement regimes of many federal privacy laws. The case, involving improper disclosure of Social Security Numbers, will be decided later this year or next year. August 25, 2003 [Center for Democracy and Technology]

August 21, 2003

Commission Recommends All Postal Mail Be Identified

A Presidential Commission on the Postal Service released a report calling on the US Postal Service (USPS) to aggressively "explore the use of sender identification for every piece of mail, commercial and retail." CDT believes that intelligent mail can offer substantial benefits to mailers, especially in the commercial context, but the Commission ignored privacy concerns and the Constitutional right of anonymous political speech. August 21, 2003 [Center for Democracy and Technology]

Microsoft Strongarms WIPO

Intellectual Property
Global Group's Shift On 'Open Source' Meeting Spurs Stir
by William New

A request for a meeting on open development issues has plunged the Geneva-based World Intellectual Property Organization (WIPO) into a Washington political battle, causing it to shift its position on the issue.

At issue is whether WIPO should hold a meeting next year on "open and collaborative projects" such as "open source" software, which allows users to view and modify underlying code.

Continue reading "Microsoft Strongarms WIPO" »

August 20, 2003

Will The Internet Become Less Useful?

There are indications that the internet, at least the internet as we know it today, is dying. I am always amazed, and appalled, when I fire up a packet monitor and watch the continuous flow of useless junk that arrives at at my demarcation routers' interfaces. That background traffic has increased to the point where it makes noticeable lines on my MRTG graphs. And I have little reason for optimism that this increase will cease. Quite the contrary, I find more reason to be pessimistic and believe that this background noise will become a Niagara-like roar that drowns the usability of the internet. Between viruses and spammers and just plain old bad code, the net is now subject to a heavy, and increasing, level of background packet radiation. And the net has very long memory - I still get DNS queries sent to IP addresses that haven't hosted a DNS... [CaveBear Blog]

August 06, 2003

ABA: Cyberspace Law Excellence Award

On August 8th, Professor Lessig will be honored with the first ever American Bar Association Cyberspace Law Excellence Award. The award recognizes “substantial contributions to the development of the law of cyberspace through scholarship, participation in the legislative process or litigation.”

[Lessig News]

August 01, 2003

Senate Bill Would Place Checks On PATRIOT Act Powers

Sen. Lisa Murkowski (R-AK) introduced the Protecting the Rights of Individuals Act, cosponsored by Sen. Ron Wyden (D-OR), legislation that would place modest checks and balances on the most troublesome provisions of the USA PATRIOT Act. The bill is backed by a range of organizations from across the political spectrum. August 1, 2003 [Center for Democracy and Technology]

July 31, 2003

Privacy, and other costs of price discrimination

Andrew Odlyzko, author of such gems as Content Is Not King, has a new paper available: Privacy, economics, and price discrimination on the Internet.

Perfect price discrimination has long been raised as one of the justifications for DRM (price discrimination depends on preventing arbitrage, that prevention may be enforced by DRM-backed no-resale clauses); Odlyzko suggests that consumers tend to rebel against overt price discrimination, and will therefore be subject less to DRM than to more covert forms such as bundling. I'm not sure that reduces the dependence on DRM, since DRM and anti-reverse engineering law often enforce the bundling. Price discrimination is one explanation for Lexmark's strategy: Selling printers at a loss but making it up on toner cartridges enables Lexmark to charge use-based pricing on the package.

I think we'll also see trusted computing called into the service of perfect price discrimination. With trusted computing, everyone may be able to get (only) a customized version of software or media, at a "custom" price if a vendor chooses.

The non-monetary privacy costs are high, however. Price discrimination demands the ultimate "know your customer." We trade personal data for frequent flyer discounts, but also for an identification that may allow sellers to charge us more when they recognize we need a product or can afford to spend more. The more price discrimination becomes part of the fabric of online transactions, the less we'll economically be able to opt-out of identification schemes.

[Wendy: The Blog]