Saturday, May 29, 2004


Hey all, I am in Cannes at the moment so there isn't much time or incentive to post. I'll be back in a few days though! I hope you are all enjoying life as much as I am at the moment!

Update: I am home now (6/4), back in NYC. Carson and I had a great time in Europe and I can't wait to head back. Geneva is a very cool town, maybe I'll look into a job at WIPO!

Thursday, May 27, 2004

Microsoft getting into search technology

But you already knew that. Here is more on Microsoft's effort. Here's a teaser:

Microsoft also is gradually unveiling a news search product, called NewsBot, similar to Google's news offering, which uses software to sort news stories based on relevance. Other technologies being developed include BlogBot, to search Web journals, and AnswerBot to better answer questions posed in plain English.

Via CNN.

Monday, May 24, 2004

L.L. Bean upset about pop-ups, suing everybody

This situation is somewhat similar to the Google keyword sale suits. Here, LL Bean is upset because Claria (formerly Gator), one of the nations "leading" adware/spyware companies, is sending people pop-ups for competing companies when people visit their site.

By creating ads that appear when Internet users visit L.L. Bean's Web site, retailers Nordstrom, J.C. Penney, Atkins and Gevalia have traded on the company's name and infringed on its trademark rights, said Mary Lou Kelley, vice president for E-commerce at L.L. Bean.

"These advertisers are illegally poaching on L.L. Bean's trademark," Kelley said. "Using our trademarked name as a trigger to which you want to serve your ads causes customer confusion and crosses the line into trademark infringement."

There have been such suits in the past. These suits have been largely unsucessful because judges are under the mistaken impression that the users have choosen to have the ad serving software on their computers (or they at least agreed to a click-wrap license when they got hit by the drive-by download of the adware). In UHaul v. WhenU, the court held that the serving of pop-ups was not trademark infringement, and neither was it infringement that the adware company used the trademarks in their database. On the other hand, there is the 1-800-CONTACTS case, in which the court held that the pop-ups for competitors led to users having initial interest confusion as to the source of the ads and therefore they are infringement.

How you hope this turns out may depend in part on your view of the Internets development. Personally, I believe that the answer to these sort of problems (spyware, adware, spam, etc) lays largly with consumer education. Those in the know really get no spam or pop-ups. Spyware may be a different matter however, if it is of the sort that just loads itself onto the users computer without any warning. This I believe is an unfair and deceptive trade practice (actually, the drive-by downloads may be as well). I am not sure that user education and technological fixes cannot solve these problems, but perhaps a little judicial intervention could halp as well.

Article at CNN.

Saturday, May 22, 2004

Geico, eBay, American Blind, Louis Vuitton, Mark Nutritionals v. Google (bring it on!)

First, if you're not already familiar with this situation (and want to be), go read some articles about the Google ad keyword suits, such as these:
Here's a article that summarizes the whole thing, from Search Engine Watch. Here's more on the American Blind case and the situation in general.

With the American Blind case, Google hopes to gain a ruling in their favor concerning the selling of keywords that are merely descripive - such as "american" and "blind" or "decorate." American Blind had threatened to sue Google over its keyword sales, but instead of waiting for them to file suit, Google filed for a declaratory judgment. That means that there is a controversy that could go to court, but one side is trying to preempt the suit and get precedent in their favor in order to try and ward off other similar suits, such as the just-filed Geico suit.

The American Blind case concerns generic words, or descriptive words that have developed a secondary meaning to people in its representation of the owner. The real question is can Google sell keywords that are straight up fanciful. These are marks that were not words in the english language until being made up as a trademark, like "Geico" or "eBay." I don't know if they should be selling these trademarks to trigger ads for others, but my impression is that it is ok as long as the ads that show up do not make false claims that they are that company, as appears to be the case with Geico. Google should have been more careful than to allow such conduct by advertisers. On the otherhand they have a good defense in the case - those ads were for underwriter brokers who dealt with Geico (but still should probably not be titling their ads "Geico").

Elizabeth Radar
has more on the Geico keyword suit. She point out that Geico is taking a big risk by suing Google in VA and hoping that can speed the case through the court before some bad precedent comes out from the American Blind case in CA.

Friday, May 21, 2004

Blog roll

Since I am going to be out of town for a bit I thought I'd give my readers some liks to keep them busy in the meantime. These are some of my favorite blogs and so forth.

For information about the happs in NYC nothing beats Gothamist.

990000 is as gorgeous a photoblog as you'll ever see, with classic New York City imagery.

For the latest tech news (and I mean up to the minute) check out both Engadget and Gizmodo.

For some lefty politics I enjoy The Daily Kos and to a lesser extent Eschaton (by Atrios, who appears on Air America frequently) and Balkanization (written by Jack Balkan, the director of The Information Society Project at Yale Law School), and This Modern World (by Tom Tomorrow), and finally Talking Points Memo (by author Josh Marshall).

For insights into gaming, regarging specifically MMORPGs, Terra Nova can't be beat.

For IP and cyberlaw info I like to check out The Trademark Blog, Susan Crawford, Wendy Seltzer, N.Q.B., The Importance Of..., bIPlog, CopyFight, Lessig, LawMeme, Elizabeth Radar, and for legal "blawgs" in general I check out blawg.

Other generally interesting stuff - if you've never checked out Slashdot you must do so now. Also, Wired News is a great resource.

Vacation time!!!!

I'm pleased to announce that I have completed the last final exam of my second year of law school at Cardozo this morning! As iceing on the cake I leave tomorrow for a 10 day trip to Geneva and Cannes to visit my girl's family. Needless to say, blogging will be somewhat light during the trip, but not nonexistent. Thanks for reading!

Here we go again - Geico sues Google over ad practices

Geico had filed suit against Google, alleging that they are causing consumer confusion by allowing advertisers to use their name on ads. Before today, when you searched Google for "Geico," you'd have noticed that on the right side of the search page where text ads, several of which were titled "Geico." They have since been removed.

These ads were for brokers for 3rd party insurance underwriters, including Geico. It would be a nominative fair use of the trademark if the companies were using the mark to identify their product, but not if selling Geico insurance is only one among the many things they do, and not prominent among them. It is apparent here that they are merely trying to appropriate the goodwill Geico has built up (read name recognition).

Google has been fighting off such lawsuits for sometime. It is apparent that if certain precedent comes out of one of these cases Google's business model may be at risk. Bring it on Warren Buffett.

Via The Trademark Blog.

Gmail's virtual swap meet

Have people lost their mind, or an I just immune because I already have one?

Gmail Swap.

Wired article.

Go on, be jealous. Email me to tell me about - ccohen at gmail dot com.

Wednesday, May 19, 2004

The battle for your desktop: MS vs. Google

This article in the New York Times gives some insight in how the battle between MS and Google is developing. I've posted on this a few times before. Google is trying to get on your desktop to provide searching for not only websites, but also your internal file, they are also doing email now which competes with Hotmail. Microsoft is trying to defend by deveolping a comparable search engine that they plan to integrate into the next version of Window, called Longhorn, which will not be released until well into 2006. If MS is sucessful and consumers like the search more than Google, then Google could go the way of Netscape. Read the article to get a better idea of what is to come for PC desktops. Times they are a changin'. Google is lucky in that they have about one and half years to make their move before Longhorn comes out. But MS may launch a new search engine by the end of the year.

Via NYT.

Tuesday, May 18, 2004

Law school finals knocking me out

It's a slow week for posts because I have had a final on monday morning and this morning. I also have another final on friday. Sorry!

Monday, May 17, 2004

The BBC notes that the iPod is a piece of crap

"Rivals challenge iPod's dominance. Apple's iPod may be the flavour of the month, but there are better and cheaper choices, says a computing magazine." Thank you, it's about time someone mentioned the other HD MP3 players out there. The iPod is a piece of crap, I have one and I hate it (when it works). The only reason for its success is that it was first and has a big marketing campaign.

I've been eyeing the Dell DJ as my next choice. It's cheaper, has more memory, and a battery that last twice as long as the iPod's. Too boot, it probably won't have buggy software (at least for PC) or crash constantly. I have spoken with plenty of iPod owners - they all say they have problems with their iPod and that it took them forever to get it working, yet they all claim to love it. I think they are just loathe to admit they got ripped off by a trend (ours was a gift, so no sweat really on the money although I have dumped at least 20 hours into trying to make it work/fix it over the last 8 months since we got it - it's about to go on eBay).

Don't waste your money on an iPod, look around. Dam, I could rant iPod hatred all day.

Via the Beeb.

Gmail accounts for auction on eBay

I can't believe this, people are paying upwards of $150 for free gmail invites on eBay. Maybe I should have kept mine! People who are beta testing gmail were each given two invites to pass along, but some are turning up on eBay.

After seeing some of my posts about gmail (check the archive if you're curious) on this blog, a woman apparently decided that I was a bit of an expert on gmail and wrote me an email asking if the selling of accounts on eBay was legal/allowed. I thought it was an interesting question so I looked into it (very briefly as I have a final exam today). As it turns out, there is nothing in the Google gmail Terms of Use that forbid selling accounts, although they do reserve the right to cancel your account for any reason.

I told here that if she wanted to drop a wad of cold cash on an account she's in the clear, and that Google is probably loving the attention anyway so wouldn't try to stop it. Plus, it's been going on for several weeks and they have yet to send a C&D letter to eBay to have them remove the auctions. Strange times.

Please, just wait a bit because these accounts will be free to the public within 3-6 months.

Here are some articles about this.

Saturday, May 15, 2004

How to protect your credit card when using it online

I have no time to post today because I am in the middle of finals, but I did see a very cool article that you should read about new technology you can use to be safe when using your credit card online.

Friday, May 14, 2004

Interesting trademark case written up in the NYT

"Showroom Guilty in Counterfeiting Case" in the NYT concerns a furniture company that was ripping off a famous furniture making by couterfeiting her stuff and either selling it as the real thing and making a ton, or selling them cheap to you if you really wanted it but couldn't afford it at the "real" price. The plaintiff spent $900,000 in attorney fees to fight this battle. Damages have yet to be awarded, but it seems like such a case of bad faith on the defendant's part that hopefully the plaintiff will be awarded attorney fees as well as actual damages.

Judge Cohn found the firm and its two principals, Steve Turner and Janet Greenberg, liable for "common trademark infringement, unfair competition, false designation of origin and palming off."

Check out how determined this plaintiff was -

Ms. Corzine and her manager could not find an order from Ms. Plasky. Ms. Corzine, whose factory is in Mexico, said she received a tip that the Turner Greenberg showroom was diverting Corzine purchase orders to a factory in the San Fernando Valley. Ms. Corzine drove to that factory, and found it protected by a pair of guard dogs.

The next part had Ms. Corzine playing Nancy Drew. She befriended the dogs, "then I climbed onto the roof of my Range Rover, jumped over the fence and went in," she said. Inside, a couple began screaming at her in a language she did not understand. But before she left, she saw a Nancy Corzine catalog open on a counter. "That's when I decided to sue," she said.

That's better than most private eyes could do. Go git 'em tiger!

Via The Trademark Blog.

Thursday, May 13, 2004

The proposed Digital Media Consumers' Rights Act

Big news? I have no time to really dig into this at all (studying for finals). But I will at some point. Anyway, maybe one of these days it will be legal for people to utilize fair use rights - such as archiving a DVD. The general feeling seems to be that the DMCA goes a bit overboard. We'll see if this amendment to it goes anywhere.

Sponsors described the proposal as a consumers' rights bill for digital media that would allow consumers to bypass encryption locks built into DVD movies by Hollywood to prevent copying. Such encryption schemes are increasingly common in music and movies.

Supporters of the change complained the 1998 Digital Millennium Copyright Act prohibits consumers from using specialized software to bypass such electronic locks, even when making copies of discs only for their own personal use.

Similar legislation was introduced during the last Congress but went nowhere.

There has to be some sort of balance between consumer rights and those of the copyright industry - how lopsided that balance is is what this fight is all about. There are plenty of people out there who consider the passage of the DMCA (as well as the Copyright Term Extension Act, a.k.a. The Mickey Mouse/Bono law)to have been a gigantic wealth transfer to the copyright industry at the expense of consumer's rights and the works available to people via the public domain. On the other hand there are some copyright owners out there that are losing serious money due to P2P and pirating. And guess which side has the most expensive lobbyists in Washington?

I don't personally know how this balance should be achieved, but I sure as hell know I'll be backing up and archiving any media I purchased if I feel the need - we should all be legally able to do so. I don't think that there is any legitimate reason to evicerate or seriously weaken the fair use laws on the books now by allowing what are essentially work-arounds or loopholes for copyright owners to exploit. Obviously the feeling is that it isn't really the guy at home making an archive that is the real problem for copyright owners but that's how it effects me...

AP, C|Net, and Fox "News."

Via Slashdot.

Update: more at CopyFight and Interaction Law, and Wikipedia among others.

Pro-Gmail blitz

The article is in The WaPo and is titled, Gmail Leads Way in Making Ads Relevant I have been testing Gmail for weeks now myself, and I love it. I have never clicked on one of the ads though, because like elsewhere on the Internet, they are pretty easy to ignore (although I hate all those flash ads on the news sites). I've written on the issues of privacy that have come up because of it here, here, here, here, and here. But the ads are not intrusive and only placed by a computer scanning for keywords, which doesn't worry me. Read the article, it's the only defense of Gmail I've seen so far. [Update: there's another, better pro-Gmail article in the NYT. Go, read, and desire a Gmail account for yourself. Ha ha, I've got one and you don't, nanny nanny boo boo.]

My email address, by the way, is ccohen (at) gmail dot com, feel free to drop me a line, or send me interesting links/articles.

Via WaPo & The New York Times (thank you Jen for sending them in).

Tuesday, May 11, 2004

California sentences a man for doing what we in NYC call art (bootlegging)

California is serious about stopping people who go into theaters and video tape new movies for the purposes of pirating them. They have recently enacted a statute which makes it a criminal act. Article here:

In the first sentencing under California's new anti-camcording law, a 34-year-old Los Angeles-area man has been sent to jail for 42 days, the Motion Picture Assn. of America said Friday.

The guy was caught video taping "The Alamo." He got nailed when a projectionist with night-vision goggles saw the light from his camcorder. They've got James Bond style equipment to find these guys.

The artist recently featured in the New York Times who videotapes movies in much the same manner, and then shows them in art galleries has made the wise decision to change up his schtick.

A 34-year-old video artist living in Baltimore, Mr. Routson has a very particular method of art-making, which will soon be illegal in Maryland, as it already is in the District of Columbia and five other states, including New York and California. Like the appropriation artists of the early 1980's, who rephotographed existing photographs as a way of commenting on society, Mr. Routson makes movies of other people's movies.

Since 1999 he has been going to Baltimore-area movie theaters, often on a feature film's opening day, and recording what happens on and around the screen with a small, hand-held camcorder. He shows the grainy, oddly distorted results, which he calls recordings, as DVD installations in art galleries.

This case appears to be blatant copyright infringement, but actually raises really difficult questions of fair use (an exam question?). The artist doesn't film the work in order that it be sold on DVDs in Chinatown, he even shakes the camera and records the sounds the audience is making (crunching popcorn, slurping sodas, etc) - so arguably this work is transformative. Also, he doesn't sell the works, he only shows them in a gallery, therefore there is really no effect on the market for the original work (as we all know, in an art gallery you stand there in front of the work for about 10 seconds before thinking, "ok, I get it,' and walk away, no one would actually sit there and watch the whole thing).

I think if this artist was sued there is a fair chance that - if the artist could afford to litigate, and if he got a very good attorney, and if he got a sympathetic judge, and the stars alinged in a certain way - he might get away with this. Who knows? The fact is that right now the industry is pounding away on IP crimes so hard that people's attitudes are changing about piracy and courts and the legislatures are getting very tough. This artist would probably go down in flames in the real world.

Mr. Routson, who described himself in a telephone interview as increasingly nervous on his visits to theaters, said he had heard rumors that the management of one chain was offering $100 to any employee who apprehended someone with a camcorder.

Uh-oh. The article goes on to make a very serious point. Our surroundings are completely saturated with trademarks and copyrights - pop culture. It would be nearly impossible to run a video recorder anywhere in this country for more than 30 seconds without recording some intellectual property. We need artists to tear these images apart for us every now and then to remind us that there is more to life, and to expose the hidden nature of some of pop culture's forms.

Our surroundings are so thoroughly saturated with images and logos, both still and moving, that forbidding artists to use them in their work is like barring 19th-century landscape painters from depicting trees on their canvases. Pop culture is our landscape. It is at times wonderful. Most of us would not want to live without it. But it is also insidious and aggressive. The stuff is all around us, and society benefits from multiple means of staving it off. We are entitled to have artists, as well as political cartoonists, composers and writers, portray, parody and dissect it.

It's a valid point - the more harsh copyright law becomes, the less oppurtunity artists have to comment on it, and the less everyone else is exposed to competing memes and ideas.

The copyleft getting some attention from the BBC

Seems that the copyleft's ideas are getting more and more mainstream media attention, see here:

How punitive laws on copyright and e-snooping might just make activists of us all.

Such strict laws help control the people that can do least about them - consumers. Music firms are not putting digital locks on CDs and downloaded files to deter pirates.

File-sharing has been blamed for the slump in music sales
"Technical sophisticates and dishonest users are not stopped by this. Ukrainian pirate gangs are not slowed down by digital rights management," he says.

Instead these locks milk cash from ordinary consumers, such as the mother unable to make a video copy of an expensive DVD in case the children break it.

"The people slowed down by [digital locks] are those that can least afford it. These people are just going to get screwed and that's a shame."

In the meantime -

The number of internet users who illegally download films and TV series has tripled over the past year, a survey has suggested.

Via The BBC

Monday, May 10, 2004

P2P program developer/professor arrested in Japan.

They don't play games in Japan either, when it comes to copyright.

A Japanese professor who advocates free file sharing on the Internet was arrested Monday on copyright-related charges for developing and offering software that lets people swap movies and video games, police said.

Via Wired.

Comment anyone?

Look...Comments are enabled!!!!! This is an open forum, just say hello or whatever else you'd like.


ay yi yi...

Hey everyone, sorry no posts since saturday. The problem is that I am now deeply embroiled in law school finals. I'll try to post once a day, but no promises.

As a side note, Blogger, the blogging service I am now using, has just been massively updated . I will now be able to include a comments section (right next to the perma link down there below the post) so that my readers can weigh in on these most interesting of topics. Also, there are new templates available, so the look and feel of this spot will probably change (feel free to let me know if you like/dislike). If the changes are satisfactory to me, I may even be able to keep this blog here for a bit longer than I thought. My gripe with Blogger has been that it is not very flexible unless you know how to script, which I don't. Hopefully, It'll be a whole new Blogger experience from here on out.

If you didn't know it, Blogger is actually run by Google. How about a shout out to the Googsters for trying to get that cutomer satisfaction going on. Also, for the last month or so I have been using Gmail, the new Google email service - which is actually still in Beta so accounts are not available to everyone yet. I must say that it is a marked improvement over Yahoo! and Hotmail's email services (both of which I have accounts on) - in function (it's very quick, and easy to figure out), storage capacity (by SO much), and look and feel (it feels more like using a personal message board than an email service). I think It'll be huge when they release it. Good job Google. Soon we'll all be using Google OS, wait and see. There's a war brewing, between Microsoft and Google.

Saturday, May 08, 2004

Judge orders couple not to have children

Judge orders couple not to conceive again. So what if it sounds completely unconstitutional. I've met quite a few couples out there who should probably be given similar orders, we all have. :)

Via CNN.

Sasser worm scripter busted.

German teen confesses to launching the Sasser worm. This kid is in a world of trouble. The authorities think he may be a member of an elite group of malware scripters, also responsible for brining you such gems as the Netsky worm. When I posted about Sasser a couple days ago, experts were saying it may get one million they are saying it has hit 18 million. How do they catch these kids?

Via The BBC.

Friday, May 07, 2004

"123 Copy DVD" about to get smacked down...hard, really hard

Court rulings have pulled the most popular software for copying DVD movies off the market [321 Studios program, called DVDXCopy], but a program, already on sale at CompUSA and Wal-Mart, is trying to get around these rulings and still let users duplicate copy-protected discs.

The software, called 123 Copy DVD, sells for as little as $19.99. Out of the box, it won't copy the vast majority of commercial DVDs, which are protected by encryption.

However, the manufacturer, also called 123 Copy DVD, has a website with a link to another site that contains a piece of decryption software. Users can easily download that patch, which allows the program to copy any disc.

Jeez, this looks like a major screw up. First, if I were 321 Studios I would seriously be considering a trademark claim for consumer confusion against 123 Copy. It seems all too apparent that 123 Copy is trying to appropriate 321 Studios' goodwill. Second, 123 Copy is going to get nailed with a preliminary injunction, even though it is quite possible that the carriers of the program will pull it from shelves after receiving a cease and desist letter from the movie industry reps. This method of trying to skirt copyright law (or para-copyright law in the case of the DMCA) by providing the DeCSS-esque decryption key for download on the company website is a non-starter. Even a law student (cough, cough) knows that the courts will not participate in their little fantasy land fiction - these guys are blatently violating the DMCA by providing a program, the sole purpose of which is to circumvent data protection methods. People just don't get it; these guys do not play games --- for purposefully violating (bad faith) the DMCA for business gain, 123 Copy is probably now liable to amounts of money that would shock (plus attorney fees). The penalties for violating the DMCA are ridiculously high (both civil and criminal). Just wait, I gaurantee I'll be posting an "I told you so" post in less than two days. If these guys got advice from counsel (which I doubt they did), s/he should be sued for malpractice.

Via Wired & CNN & PC World.

How do memes spread across the blogosphere?

Here's a cool article in Wired News about how memes travel across the blogosphere. As Susan Crawford sort of said once (I've modified it to be more blogerific), it's so bloggy to blog about blogging, but it's fun. How the Word Gets Around:

"The Brandeis University senior had been reading various studies that looked at historical data on the way information works its way across the Internet. But he was more interested in seeing if he could figure out, in real time, the trajectory of a meme once it hits the blogosphere. So he came up with a plan to find out. He called it the Memespread Project. "
"Rather than doing it retroactively," Arbesman says, "I thought I'd try to inject a meme into the blogspace and see what happens and try to track it. In this case, the meme was the project itself."

Via Wired.

Thursday, May 06, 2004

More bad news for SCO

More bad news for SCO here:

In an apparent reference to SCO's lagging product revenues -- SCO had a $2.3 million net loss on $11.4 million in revenue for its most recent quarter, down from $13.5 million in early 2003 -- the NRF questioned the Utah company's lawsuit motives. "It is almost as if The SCO Group's business model is to generate a revenue stream through litigation," Hogan said. "NRF expects that retailers who use Linux will survive the current litigation. "

The retail group's statement came as SCO awaits news on whether the Royal Bank of Canada (RBC) will follow the lead of investment partner BayStar Capital, which last month demanded redemption of its $20 million October investment. RBC, which has $30 million in SCO preferred convertible stocks, continued to discuss the matter internally Wednesday, said spokesman Paul Wilson.

They've also recently been laying off employees.

Via The Salt Lake Tribune - "Retailers oppose SCO's stance".

I've written more about this below, such as here.

Music industry looking to raise the prices for online music downloads...?

The music industry doesn't know when to chill out. The suing of music downloaders has been at least somewhat effective at chaning attitudes about P2P theft of copyrighted material. But the main music consumer complaints remain - that the state of pop music is the dumps, and more importantly that CDs are a rip off.

Lots of consumers have begun to pay for music downloads from online services like iTunes, which at 99 cents a song isn't so bad. But recently, as I've noted before here, they've begun to demand more money for new music, which destroys the incentive to download the music because you the CD costs the the same and in some cases more. No one wants to pay the going rates for CDs, it's too much - so by raising the download prices they are going to drive just as many people back to KaZaA as they drive to purchase the CDs. Check this out:

At the Future of Music Coalition Policy Summit in Washington, D.C., Glaser recounted his general frustration in getting the record labels to offer creative pricing beyond the 99-cents-per-download model. In fact, some labels -- emboldened by consumers' apparent willingness to pay a buck a song -- are talking about raising per-song fees rather than lowering them to increase volume.

"Can you explain what planet the record labels are on?" asked Walt Mossberg, tech columnist for The Wall Street Journal and moderator of a one-on-one interview with Glaser at the conference.

Glaser smirked. "I guess I'd call it Planet Spreadsheet," he said. "The problem is that they don't look at it holistically."

Not only are they going to dirve people back to P2P services, they are going to be driving them straight to newer services like, a new russian company offering music for $10 per gig (wow!). By the way, Gizmodo has tried it out and liked it - read about the experience here.

No only all this, but as most of us are now realizing - CDs don't even last. When I saw these articles about "CD rot" I only wondered why they'd never appeared before. I've been losing CDs to rot for years - that's why I recently ripped them all to a seperate external harddrive, to archive the music on them (which is fair use as a mere shift in media and because I didn't need to circumvent any data protection device or encryption to do it, which would violate the DMCA).

The rampant pirating of copyrighted material has to stop, but the music industry needs to play ball, not just sue everyone and jack up prices. The music industry needs to work with their customers instead of alienating them. I really believe that most people want to and are willing to pay for their music - but not at $20 a CD. No matter what Congress does about the problems of P2P, they can't enforce their statutes in Russia.

Via Wired.

Update: A new article in the NY Post claims that soon songs on iTunes are going to be priced up to $1.25, with some full albums going for $16.99 (the same prices you can get the CD for, or more even).

EMI and Sony Music, which this week launched its own download service called Sony Connect, were said to be the most aggressive on pricing.

Article here, via Gizmodo.

Wednesday, May 05, 2004

Problem with the archives & solicitations for a domain name.

I have noticed that the archives on the right of the page do not seem to be working. Great, no doubt Blogger has lost the last months worth of posts. That would really annoy me. I'll be working on the problem, and dreaming about a shiney, new, pretty MovableType powered website of my very own. I am still working on a name for it (althought I do have one in mind that is available in the dot COM TLD). If you think of any good ideas let me know. I'm looking for something that "conjures up" the ideas of cyberlaw or intellectual property that I can get in the dot COM and/or dot NET TLD's (because they are just SO much more prestigious than little 'ol dot US, BIZ, or INFO). You've got the email address --> ccohen (at) gmail dot com, use it man!

CAN-SPAM library online at GigaLaw. has launched a CAN-SPAM library. It looks pretty comprehensive.

Via LawMeme.

Vaidhyanathan's new book out.

Siva Vaidhyanathan is guest blogging on Lessig's site if you're interested. He is commencing an "etour" for his new book, The Anarchist in the Library.

Copyfight has more about the book, including a snippet.

Tuesday, May 04, 2004

Does a high school student have a right to privacy in the digital contents of his cell phone?

Seems pretty straight forward. Of course the principle couldn't take a student's phone, listen to his voice mail, read his text messages, and then send texts and call people in his address book...right? And certainly not if the search was justified on the grounds that the student was caught in the act of recieving a text message reading, "I need a tampon." Well yes, this actually happened. Check it out:

School officials say it is common knowledge that tampon is slang for a large marijuana cigarette.

Wow...I didn't know that. Somehow, it just doesn't sound genuine. Perhaps a little post hoc rationalization? I can't imagine someone saying, as Engadget puts it: "I’m gonna go smoke up a phat tampon right now."

Seriously, students in a public school get less Fourth Amendment protection against unreasonable search and seizure than a person on the street. Still, this seems like a step well over the line into a violation of privacy. This was no real indication that the student was involved in drugs and the phone was his property (unlike a locker, for which the standard for searching would probably be much lower). The principal even text messeged the student's 10 year old brother pretending to be the student! Calls also went out to other students at the school from the confiscated cell phone, students who answered were told to bring their phones to the principal too. This sounds like a good time to sue, sue, sue!!!

Via Engadget, article here.

While on the subject of privacy. Here is an article in Wired re giving up your info (or really just allowing its aggregation into a dossier) for the greater protection of the US. It also mentions an ID card containing biometric info. The article mainly profiles Derek Smith, head of ChoicePoint:

Smith can supply...information -- he heads ChoicePoint, a leading electronic data warehouse regularly mined by companies and the government. ChoicePoint does 8 million background checks a year, serving more than half of the Fortune 500. Database aggregators like ChoicePoint have quietly become powerful arbiters, whirring in the background when people seek jobs, get on airplanes, apply for insurance, commit a crime or fall victim to one. ChoicePoint's computers are packed with 19 billion public records.

As you can imagine he is in favor of "making the world safer" by "examining each other's digital footprints." Scary? I don't even know anymore.

Is your machine a member of BotNet?

Some spyware and viruses contain scripts that allow a third party to take over a users computer and use it without the owner knowing. The most common use made of people's computers at this point are as a conduit for spamming. By hijacking a computer a spammer can use that computer's IP address to send the spam and mask that is coming from the spammer (this is now illegal under the CAN-SPAM Act). Another fairly common use is to make the hijacked computer send out loads of data requests from a particular website, if enough computers are sending the requests the server that the webpage is located on gets clogged up and the target site is brought down.

Viruses such as My-Doom and Bagle surrender the control of infected machines to hackers. This expanding network of infected, zombie machines can be used either for spam distribution or as platforms for DDoS attacks, such as those that many online bookies have suffered in recent months. By using compromised machines - instead of open mail relays or unscrupulous hosts - spammers can bypass IP address blacklists.

Now things are getting even worse for users, apparently spammer and hackers are now selling access to these "BotNets." Even organized crime is starting to get in on the action. What they are actually using the BotNets for other than spamming and denial of service attacks is less certain, but with keyloggers and other tools they would certainly have the ability to find out passwords, credit card numbers, etc. from hundreds of thousands or millions of people who have this malware on thier machines. They are even selling access to machines with highspeed access for a premium to speed up their spamming!

Mark Sunner, chief technology officer at email security firm MessageLabs, said much of the spam it blocks comes from IP ranges allocated to high-speed cable modem or ADSL accounts, such as roadrunner and MSN in the US. MessageLabs reckons two thirds of the spam it blocks originates from computers infected by viruses such as Sobig-F or Bagle. Spam volumes are growing. More than two thirds of the email passing through MessageLabs systems so far this month was spam compared to 53 per cent for March as a whole.

The recent MyDoom virus used infected computers to launch a DDoS attack on SCO, the company that is suing IBM over the Linux OS. Obviously those virus writers were big Linux fans.

Sasser, the latest big-time virus which debuted over the weekend is spreading fast. Some think it could reach MSBlast proportions, MSBlast infected 10 million computers.

The worms infect vulnerable systems by establishing a remote connection to the targeted computer, installing a File Transfer Protocol (FTP) server and then downloading themselves to the new host.
Early Monday, Symantec had counted at least 10,000 confirmed infections, and acknowledged that hundreds of thousands of computers have likely been infected.

Luckily, says: Although Sasser.B does not feature a back door to allow spammers and others to enter a user's system, Symantec's Huger said he would not be surprised if that feature is added to later versions of Sasser. So Sasser doesn't add you to BotNet, yet...

Via The Register.

More on about Sasser here. More from the Reuters here.

Monday, May 03, 2004

The ethics of buying bootlegged DVD's

Ask Gothamist on the ethics of buying bootlegged DVD's. I agree with this analysis for the most part, however, I must suggest that the connection between the criminals that bootleg en mass and terrorism against the US is tenuous and not supported by any study or government report I have seen. I have read several articles in the media that make such a claim, but often without any support. Obviously it is in the interest of the copyright industry to hype-up such a connection, and so while I do not know whether the claim is true or not, I view it with scepticism. I'm no conspiracy theorist, but if I were Jack Valenti or the RIAA I would be directly connecting bin Laden to bootlegging gangs because it will encourage the US government to direct their attention to the problem of bootlegging, which certainly costs the copyright industries billions in losses every year. Whether funneling money to terrorists or not, bootlegging infringes on copyright and is a serious crime.

I don't get to link to Gothamist often because it generally doesn't have posts relevant to the subject matter of this blog, but I do so with pleasure on this rare occasion. Gothamist is an award winning blog about what's happening in the center of the universe, my home and Gothamist's - New York City. They are expanding and now have a Gothamist Weather blog, an advice blog called Ask Gothamist, and a series of interviews with interesting New Yorkers at Gothamist Interview.

I have no idea how they have so much time to run an amazing blog and hold down jobs. Perhaps I will go to NY Bloggers Meet tonight and ask the panda obsessed Jen Chung, the editor of Gothamist. [Note: Here I wrote that perhaps The DaVinci Code would be worth reading because of all the hype. But Jen Chung reviews it here and didn't think so. Oh well.]

Ambush marketing of "Friends" finale

When the Super Bowl comes around there are plenty of companies that run ads that aren't quite tradmark infringement, but only because they use coded speech similar to the trademark to let you know they are associating themselves with it - such as the "Bud Bowl" ads. There can be great benefit to associating one's brand with a big event, which is why companies sponsor sports events for millions of dollars. It gets the product eyeballs and also associates the product with the culture of the event and it's viewers. This article states:

It's why you're seeing so-called ambush marketing. Miller Lite Beer uses "Super Parties" on its billboards to get around the rules.

And here is a discussion of Super Bowl parties:

There is a significant distinction to the various special events and parties. There are the NFL-sanctioned events, which have the blessing of the football league. And there are the so-called ambush parties, which trade on Super Bowl excitement but are not part of the "official" landscape.

Of course anyone who wishes to use the actual logo needs to get permission from the NFL and pay a fee. Hence the emergence of advertising which refers to "the game on Sunday" without using the term Super Bowl. Likewise, we are seeing the same sort of ambush marketing with the upcoming Friends finale. The New York Times discusses it here:

[C]ompanies not officially part of the "Friends" send-off are trying to be associated with it, not unlike advertisers that do not pay to be Super Bowl sponsors ambushing those that do by running football-centric ads referring to "the big game." For example, the pasta maker Barilla has put up a Web site ( offering recipe ideas for viewing parties "to say goodbye to a few old 'friends.' "

It's an interesting article that mentions various tactics advertisers use to leach attention off of televised events and create an association with them. Marketers have found ways to avoid liability for infringement, but infringers and fakers beware these guys don't mess around. See here:

During Super Bowl week, a contingent of NFL-hired security will prowl Houston streets, trying to curb the sale of knockoff NFL clothing by peddlers and stores. But that still won't stop all the "ambush marketing," promotions that link companies to the league or the game but avoid trademark infringement by not including the NFL logo or even the term "Super Bowl." "Ambush marketing is a transparent attempt to cash in on the passion of our fans," NFL spokesman Brian McCarthy said.

They go after big fish and small; see here:

[T]he NFL is suing Yardy and Provider Technologies Inc., a Tampa Internet company, over the Web site operated by the pair to rent homes to those visiting the Tampa Bay area for the Jan. 28 game. The lawsuit filed Thursday in U.S. District Court in New York seeks unspecified financial damages and a court order immediately forcing them to stop using NFL trademarks. "We're not saying nobody can ever use "Super Bowl' in any form or context," said NFL attorney David Proper. "But there's no doubt in our mind that these guys are using it inappropriately to try to create the appearance of an affiliation to our event that they clearly don't have."

Via The New York Times (and hat tip to The Trademark Blog).

Sasser worm hits hard

A fast spreading worm called Sasser hit thousands of PCs within the last few days. You gotta keep your OS updated. This new worm takes advantage of a problem that Microsoft released an update for just a few weeks ago - this is a typical pattern with virus writers. They are already comparing it to last years devestating Blaster worm. You can get Microsoft updates here, it's a simple process. Do it.

Via CNN.

Sunday, May 02, 2004

GNU is all good - SCO.

Good news for Linux and the entire open source movement:

In The SCO Group Inc.'s latest U.S. District Court filing as it battles IBM over Linux, the company is no longer using the affirmative defense that the GNU General Public License (GPL) is unconstitutional.

The general concensus was that the GNU claims were a crock.

Many lawyers, such as Tom Carey, a partner at Bromberg & Sunstein LLP, a Boston intellectual property law firm, have said they found SCO's assertion that the GPL is unconstitutional to be "rubbish."
"They're removing a silly claim from their lawsuit and retreating to claims that they have a hope of making in court," Perens said. "If they leave silly stuff in the case, they're more likely to become a victim of a summary judgment and not get their side heard at all."

If you already know about the case, Groklaw is the place to keep up to date. If you need the background, look here, or here.

Via Corante, article here.

Ahhr-nald bobble head doll and confidentiality in cease and desist letters.

This is a great post by Martin Schwimmer at The Trademark Blog. Go read it.

Making bobble-head dolls of politicians is ok, but what about Arnold - does he get a special right of celeb because he's an actor as well as a politican? Also, if you read the cease and desist letter (at the Smoking Gun) Arnold's attorney's sent to the maker of the doll you'll note that they write that the letter is confidential and cannot be reprinted on the Internet, etc. Where do they think that confidentiality comes from? There's been no agreement between these two parties re confidentiality. This is the sort of stuff that gives attorneys a bad rap, trying to take advantage of people and being overly aggresive (just read the letter, it's over the top - although they do sounds pissed off). If the recipient of the letter was person without access to legal counsel how they know that the letter's claim of confidentiality is BS - they wouldn't, they would be scared into silence, which is probably what Arnold's lawyers were hoping for. Instead, Arnold's lawyers look like a bunch of jerks with a shaky claim.

There is no confidentiality in a cease and desist letter, anymore than there is in an email I send someone - even if I state just the opposite in the letter.

Via The Trademark Blog.

Saturday, May 01, 2004

Lawmaker's bill would ban pants worn too low.

State Rep. Derrick Shepherd, D-Marrero of Louisiana has drafted a bill would ban pants worn too low.

[He] said he filed the bill because he was tired of catching glimpses of boxer shorts and G-strings over the low-slung belt lines of young adults. The bill would punish anyone caught wearing low-riding pants with a fine of as much as $500 or as many as six months in jail, or both. “I’m sick of seeing it,” said Shepherd, a first-term legislator. “The community’s outraged. And if parents can’t do their job, if parents can’t regulate what their children wear, then there should be a law.”

All I can say is...dude, lighten up. Besides, it would be ashame to outlaw wearing bikini's and skimpy clothing, with summer approaching and all :)

Via Backwash.

Supreme Court Justice David Souter attacked

Article here.

"Supreme Court Justice David Souter suffered minor injuries when a group of young men assaulted him as he jogged on a city street, a court spokeswoman said Saturday."

No apparent motive for the attack has been reported.

D&D still going strong in the digital age

There's a very nice article about Dungoeons and Dragons here. Somehow it continues to thrive even which all the video games, books, movies, and other RPG's out there that have replaced it in large part. Funny how people deride RPG's as being nerdy (especially since most kids play RPG's of some sort when they are younger) when they are considered to be totally cool to play as video games. Props to D&D! [By the way...if you are one of those who still think D&D had something to do with suicides and deaths of kids in the 80's you need to read this article.]


Don't tell your customers that a competitor is infringing your copyright unless you can back it up!

Don't accuse others of copyright infringment if you can't back up your claim. It could cost you $300 grand in a defamation suit. A company named NSM was crawling other sites to get comparitive pricing information for their users. sent out letters to yacht brokers and others, claiming that NSM's data-harvesting was illegal


Funny thing is, the plaintiff may have believed for good reason that they were in the right. There was an eBay case a few years back in which a court ruled that another auction company couldn't crawl eBay's site in order to collect and aggregate auction information from all the online auctions so users could easily do comparitive shopping. The court considered it a trespass to chattel if I remember correctly. They reasoned that it was a trespass because the crawling used up eBays computing resources in such a way as to cause them "actual damage" (which was necessary, because with trespass to chattel you need to show actual damages, whereas with trespass on real property there is no need for a showing of damage).

I don't know why that wasn't considered to be a trespass case (different jurisdiction maybe?). Perhaps because the defendant in this had claimed that the plaintiff was infringing on their copyright and not that they were trespassing - but you can't really hold a normal guy accountable for mixing up legal terms. Maybe I'll investigate this case a little more one of these days...

Via Business Lessons.

invasive search and seizure ok if life on the line

My criminal procedure professor once asked the class how far we thought the police could go in searching or interrogating someone in a way that would normally violate their rights if either the perps life or another person's (or a bunch of people's) life was on the line. What if it was a terrorist and there was a race against time before a bomb went off somewhere? What if the perp had kidnapped someone who was missing and probably dying?

The courts have ruled that it is an illegal search (too invasive) to pump someone's stomach if the cops saw him swallow some drugs. But what if the perp swallowed so many drugs that his life is actually endangered? A jury in Connecticut has cleared a hospital for doing just that (and also the suppresion of evidence hearing on the motion claiming illegal search and seizure did not fly with the court).

Bridgeport Police Officer Frank D'Amore, who was present during the surgery to seize evidence, also was cleared of the illegal search-and-seizure charge.

"All the treatment he received was medically necessary," said David Robertson, the lawyer from Bai, Pollock and Dunnigan who represented the hospital and its employees. "He's lucky they saved his life."

Embry was brought to the hospital in April 2000 by Bridgeport police after he swallowed at least 26 small packets of crack cocaine during his arrest. Hospital staffers were able to induce Embry into coughing up 25 of the packets, but his blood pressure soared and his heart began to race, suggesting there was more to come.

The kid was still a minor at the time and claimed that even though he gave permission for the surgery he was sedated and the hospital needed permission from his mom. It took the only jury two hours to decide he was out of luck. It probably didn't help that was clearly a pro crack dealer.

Not that we know all the facts here, but it seems we got that question for the prof answered - yes, you can conduct an invasive and typically illegal search and siezure if the perp's life may be on the line. Still unsure about if someone else's life is on the line.

Via The ConnPost.

J. Antonin Scalia

Looks like conservative Supreme Court justice Antonin Scalia's big mouth may keep him from becoming the future Chief Justice. Check this out:

In emphatic phrases punctuated by operatic gesticulation, [Scalia] then launched into an attack on a series of the most important Supreme Court decisions of the last 40 years. The court was wrong, he said, to say the Constitution requires that lawyers be provided to poor people accused of crimes. It was wrong, too, to find that the First Amendment imposes limits on libel lawsuits. "We have now determined," he continued, "that liberties exist under the federal Constitution — the right to abortion, the right to homosexual sodomy — which were so little rooted in the traditions of the American people that they were criminal for 200 years."

Too bad we can't put him in a time machine and send him back to a time when the Constitution was not understood in the broader way it is today, I'm sure he'd really enjoy it. The US Constitution is a living document that grows and evolves with the nation. As to becoming the Chief Justice:

These days, while he remains the great hope of many conservatives, even some of his admirers say his public profile in a bitterly divided Washington has made such a move unlikely. ... Indeed, many experts say that the nation's polarized political environment and Justice Scalia's high profile would doom any chance he has of succeeding Chief Justice Rehnquist.

Scalia claims: "I am a textualist," he said. "I am an originalist. I am not a nut." Well, the guy can write well, and he doesn't always go the way you'd think. For instance, he voted for and wrote an opinion that made it illegal for police to use scanning equipent to observe you in your home from through the walls with devices that can make hear signature readings off the walls (while some of the more liberal justices voted that it was a-ok). But then he also dissented in a case that made executing retarded people illegal, claiming that the ban was irrational and based only on the opinion of the members of the court (shocker here, I love how when the law is one a person agrees with it is precedent, and when it is something they do not like it is merely an opinion).

Lawrence Lessig is a famous law professor, particularly in the area of copyright and cyberlaw. He (although considered a bit of a lefty now himself) says Scalia has veered hard to the right recently:

"When I worked for him, he had a set of principles, and those principles led to principled results, which were sometimes conservative and sometimes liberal," said Lawrence Lessig, a law professor at Stanford who was also a law clerk to Justice Scalia. "I don't understand anymore how his jurisprudence follows from his principles."

Via The New York Times.

Parody or satire?

Now is going public too! I'm sure their stock will shoot straight up, buy, buy, buy!

Booble is a commercial parody that Google probably can't do anything about, other than threaten expensive trademark litigation that is. Which is what they did do, and failed at (cease and desist letter and response). Who would be confused by this? Google may have a decent dilution claim though.

Here is a fantastic satire, go see it now (it's paid for by Ben, of Ben & Jerry's). What's the difference between satire and parody you ask? Well, a satire targets something other than the work that is borrowed from. For instance using a Dr. Suess style of peotry to write a book that attacks OJ Simpson (The Cat is Not in the Hat case), or reworking a commerical for "The Apprentice" to attack Bush. Parody is when the work borrowed from is the one being attacked or referenced. Parody is ok with copyright law, satire is not.

But then...The Apprentice-Bush commercial may actually be permissable because it is political speech and courts give wider latitude in such cases. A court may even find this anti-Bush ad to be a parody although that seems intellectually ingenuine. To be fair there are arguments on each side, for instance the maker of the ad could claim that it was partly parody because it is a play on the Donald's incredible ego (he thinks he can fire the president) or the stupidity of the contestants on the show (Bush is as pathetic as they are). The work need be only partly parody after all.

See for instance the Mastercard v. Nader2000 case. There the court found Nader's "Priceless" commercials, as directly borrowed from the popular Mastercard ad campaign, to be fair use under section 107 of the Copyright Act. Good ole' fair use. That outcome was welcome. The Trademark Blog discussed it here.

Via The Trademark Blog.

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