Non-Digital Copyright in the Digital Millennium

Thursday, February 21 at 12:10pm
William and June Warren Hall 103
1125 Amsterdam Avenue

Lunch will be provided

The presentation will be based in part on Mr. Jacobs’s Fall 2011 article, “Copyright Fraud in the Internet Age: Copyright Management Information for Non-Digital Works Under the Digital Millennium Copyright Act,” published in the Fall 2011 edition of STLR.

All are invited to attend! An RSVP to stlr@stlr.org is encouraged, but not required.

About the Article:

With the advent of the digital age, authors of creative works enjoy the benefits of quickly and inexpensively distributing their works to global audiences.  These developments have unfortunately led to the negative consequence that pirated, unauthorized, or altered copies reach potential users before the creator of the work releases the authentic version according to his or her terms.  The Digital Millennium Copyright Act of 1998 sought to address some of these concerns by punishing circumventions of technologies controlling access to copyrighted works (17 U.S.C. § 1201) and by protecting “copyright management information,” i.e. the data identifying the author and the terms of use of a copyrighted work (17 U.S.C. § 1202).

While scholars have commented extensively on section 1201, little scholarship exists on section 1202.  This Article addresses that gap.  The Article discusses a federal court split regarding the scope of application of section 1202 and demonstrates that the legislative history and the plain language of the statute call for broad application to both digital and non-digital works.  The Article then looks at section 1202 in the context of Internet fraud, and argues that this section functions as a consumer fraud statute, offering protections for the provision of accurate information and authentic works that can well serve copyright owners and consumers.

About the Author:

Corporate Counsel, Starbucks Coffee Company. J.D. (J. Kent Scholar, Hamilton Fellow), Columbia Law School; A.B. (with highest distinction), University of Michigan, Ann Arbor.

Mr. Jacobs graduated from Columbia Law School in 2002 where he was a Hamilton Fellow, a James Kent Scholar, and served as Articles Editor and Notes Editor for the Columbia Journal of Law and the Arts. He also graduated in the top 1% of his class at the University of Michigan, double majoring in History of Art and Spanish. He is currently Corporate Counsel with Starbucks Coffee Company, focusing on domestic and international intellectual property issues.

UPDATE as of 19:15 EDT: The jury has reached a verdict. Details can be found here.

… While a South Korean Court Ends Another:
While the outcome in the U.S. case is still unknown, on Friday a court in South Korea found that Samsung did not copy Apple’s products. The court found that, while Samsung didn’t copy the Apple products, the company did violate Apple’s “snap back” patent. The court ordered that both sides pay limited damages, a result in that few expect to be repeated in the U.S. trial.  

In Non-Apple News, an Emerging Form of Digital Currency Draws Attention:
Bitcoins, a digital peer-to-peer form of currency, are emerging as an alternative to standard forms of payment on the internet. While this new payment scheme has thus far been relatively unregulated. This situation might soon change, however. Bitcoins are drawing increased scrutiny from legislators, as they have begun to be used to purchase illicit drugs, among other things. For a more nuanced legal analysis of Bitcoins’ status, read this Temple Law Review article.

AT&T Draws Ire for FaceTime Decision:
AT&T has come under fire for its decision to disable FaceTime (a video chat feature native to Apple’s popular iPhone product) on users’ phones unless they subscribe to a specific data plan offered by AT&T. Critics say that the scheme clearly violates net neutrality rules that AT&T agreed to last summer. The company defended the decision noting that the rules they agreed to do not prevent it from blocking use of native apps.

Judge Praised in Oracle v. Google Litigation:
In the recently-concluded (for now) courtroom battle between Google and Oracle over certain elements of the Android platform, the judge presiding over the litigation has received praise from commentators for his handling of case. Whether Oracle (who lost the case) would agree is debatable.

… And Yet Google Gets Out-Classed:
While Google may well be pleased with the result in the Oracle litigation, its ongoing Google Books suit is likely troubling to the Big G. The company was recently dealt a blow in the case, when the presiding judge (Judge Chin of the S.D.N.Y.) certified a class of authors that may now continue their litigation.

… While Apple and Samsung are Put to a New Test:
In perhaps an unprecedented act of judicial activism (or slack-tivism?) the judge overseeing the Apple-Samsung litigation before the ITC has announced a new test that he will use in determining whether the Samsung devices infringe upon Apple’s iPhone and iPad products. He will ask himself whether the allegedly-infringing articles “look like, feel like, and/or smell like” Apple’s patented designs. He was inspired to create the test by a memorable sketch performed by the famed “Cheech and Chong” comedy duo.

What is cloud computing? The National Institute for Science and Technology defines cloud computing in richly technical NIST-speak. For reference: “a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.” That’s all pretty inaccessible. What it reduces to, essentially, are the principles of “scaled economics” – that is, law firms outsourcing their data storage needs to avoid expensive hardware upgrades and skim a little from their IT budgets.  One such public warehouse is DropBox; more on Dropbox later.

There it is, then. Law firms have adopted this as a fit cost-cutting strategy and they have done so en masse. The purposes range from e-mail archiving and document management (NetDocuments) to, among other things, payroll processing (ADP). The snowball has been tossed and has already gained formidable velocity. So much for tradition and so much for excess preoccupation with ABA/federal rules; now it’s okay for all to play ball. In a certain respect, law firms are just doing as businesses do. They only think about security in the context of security breach – when a golden laptop goes conspicuously missing, when a staff attorney discovers a keystroke logger, when server data gets compromised and there’s glaring signs of data leakage.  Then, we talk security.

DropBox was highly, highly touted as recently as last year; folks with technical know-how said DropBox was safe for use by law firms handling sensitive legal data. A year ago, this lawyer gave thunderous support for integrating DropBox into legal work. As did this guy: Why DropBox Rocks for Legal Offices. And then, on June 19^th 2011, there was a security breach. For four hours on that fateful Sunday, anyone with a modem could access DropBox-hosted documents; the systems would accept any password. Let that digest for a moment.

A well-credentialed acquaintance of mine once approached me for idea leads on a talk he scheduled to do at a conference entitled “Security in the Cloud.” I was speechless. After having done a bit of diligence, here’s what I’ve got. There is no security—none. The 1s and 0s are tossed off haplessly along in cyberspace. And beyond security, there is additional concern:

• there is, first and foremost, the worst case scenario of the loss of client data, which in turn would damage a firm’s professional reputation and expose it to malpractice liability;
• the bare inability to see or touch documents on a piece of hardware you own;
• the mere fact of having to interface with a third party at all, which represents a barrier between attorneys and their IT department;
• the indirect (and often) limited control of available bandwidth;
• the risk of becoming inadvertently subject to the laws of a foreign jurisdiction, where document storage might be ultimately maintained;
• and finally, waiving the privilege.

What do YOU think? In the humble view of this post’s author: the same principles of “scaled economics” that compel firms to outsource administrative responsibilities are what compel further outsourcing (and cost-cutting) on behalf of these third parties, with little additional accountability. Institutional inertia is a two-way process, and I feel firms ought to be vigilant of ongoing trends in the realm of cloud security – and withhold. At a minimum, whatever auditing standards a firm applies to its policy in-house ought to be extended and applied out-of-house as
well.

In terms of understanding the cloud’s topology, cumulonimbus may just as well be cumulo-“nebulous.” And if DropBox repeats itself soon – you’ll pardon the forced pun – the size of the fallout will just as well be a computational disaster.

Predator Drones: Computations and Casualties

Almost 150 years ago, Herman Melville’s “A Utilitarian View of the Monitor’s Fight” recognized and lamented the dehumanizing efficiency of mechanized warfare, but even after the unprecedented rate of technological development since the Civil War, his description of the Monitor, the Union’s first iron-clad warship, seems hauntingly prescient of the Predator Drones used today in Iraq, Afghanistan and Pakistan:

Deadlier, closer, calm ‘mid storm;
No passion; all went on by crank.
Pivot, and screw,
And calculations…

While much has been said about the ambiguous morality of unmanned drone warfare and its potential for desensitizing violence, a surprisingly low-profile case (now settled) regarding the drones’ allegedly pirated and faulty positioning software exposes a new swathe of legal issues, namely the allocation of liability in the event of system error and/or failure when the machine or software used potentially contributes as much if not more to the decision-making process than the individual using the mechanism. As Melville later describes the “sailors”:

War yet shall be, but the warriors
Are now but operatives…

While the details of the case are hazy (and will remain so since the two parties have recently settled, upon which Netezza was acquired by IBM for $1.7 billion), ISSI alleged that Netezza illegally “hacked”  ISSIs’ Geospatial Toolkit and Extended SQL Toolkit and then packaged them with Netezza’s own data analysis programs, which Netezza sold to the CIA for use in unmanned Predator Drones.

Particularly unsettling is evidence that both companies, and perhaps the CIA itself, knew that the software was faulty and not ready for production, potentially causing the Drones to miss their targets by up to 40 feet. The question then, is, when civilians die because of faulty targeting software, who should be held responsible? The CTO of ISSI expressed concern that his company could be held liable, and this concern at least in part motivated ISSI’s lawsuit to enjoin the use of its software in the drones.

ALADDIN: Letting the Robots Decide

ALADDIN (Autonomous Learning for Decentralized Data and Information Networks), a joint project between the British defense contractor BAE systems and several of the top universities in England (including Oxford), reimagines the decision making process during warfare, disaster relief and other volatile high-risk situations. Essentially, by allowing the various robots or units (fire alarms, etc.) to bargain amongst themselves for resources and to determine various courses of action by comparing each units own data and assessment of the situation, the developers are optimistic that the decision-making process will be more effective than if a group of human beings, with all their notorious inefficiencies and inconsistencies, were to make such decisions.

However, ALADDIN seems to take “responsibility” even further out of human hands, and during war or disaster, decisions may result in the loss of life or other severe harms. If an ALADDIN-like program were to respond automatically, who should be held liable when the program decides on a disagreeable or morally reprehensible course of action? The Royal Academy of Engineering published a report exploring culpability in an automated world, even going so far as considering the idea of blaming a machine. The report ultimately concludes that most importantly, such problems need to be brought into the public forum so that as fully autonomous systems are introduced, society is prepared to handle the ramifications of utilizing such systems.

Google Autonomous Cars: Automatic for the People

Google recently announced that it has successfully developed automated cars. Like the ALADDIN Developers, Google is optimistic that its technology will result in fewer accidents and more efficient transportation overall. Using a wide array of sensors and high-speed data processors, Google claims to have driven 140,000 miles sans driver, with only one accident in which another driver apparently rear-ended Google’s automated vehicle.

While actual wide-scale use of automated driving systems is still a long way off, liability allocation will almost certainly be put in place before driverless vehicles are given the green light, and some practitioners are already exploring who would be held liable in the event of a crash. While product liability will play a large part when the navigation devices or systems fail, the human “driver” may still be held responsible, as any such system will likely contain a human override function in case of emergency or system failure.

• The Copyright Office released its latest group of exceptions to the Digital Millenium Copyright Act’s anti-circumvention provision. Wired and cnet news report on the exception for jailbreaking mobile phones.

• Also in DMCA news, Ars Technica discusses the Fifth Circuit decision that bypassing technological protections to access software for a fair use does not violate the DMCA anti-circumvention provision.

• The Supreme Court ruled on patentable subject matter in Bilski v. Kappos. Cnet, The MTTLR Blog, and IP Watchdog give their takes on the decision.

• Patent Docs reports on the memo issued by the USPTO to its examiners in the wake of Bilski. In a similar vein, Patently-O takes a look at the first post-Bilski test cases.

• The case between Joel Tenenbaum and the RIAA has taken another turn as U.S. District Judge Nancy Gertner slashed the jury verdict by 90%, calling it “unconstitutionally excessive.” See the coverage from Wired and Eric Goldman.

• Holman’s Biotech IP Blog looked at the recent limits that the EU Court of Justice has placed on patent protection for gene sequences.

• IP Watchdog has some thoughts on the early stages of a multi-billion dollar lawsuit filed against PayPal by XPRT Ventures, Inc.

• Authorities in San Mateo, California, contemplate filing criminal charges in connection with the sale of an Apple prototype (of a new iPhone), lost by and possibly stolen from an Apple software engineer and bought for $5,000 by the website Gizmodo.com, the New York Times reports.

• From the San Francisco Chronicle: citing a desire to help fight censorship, Google has launched a tool that discloses requests the company receives from governments for content removal and user data.

• India’s new copyright proposals, which include both fines and jail time for offenders, are still not strict enough for the RIAA, MPAA, and other organizations that lobby for greater intellectual property enforcement, Ars Technica explains.

• From CNET, a summary of the recent Supreme Court decision declaring unconstitutional a law banning Internet videos of animal cruelty, while leaving open the possibility that a narrower law would be permissible.

• A new study funded by net neutrality opponents claims that the FCC’s proposed net neutrality rules would cost the telecommunications industry over 340,000 jobs in the next ten years, PC World reports.

• PatentlyO notes that the Supreme Court has decided to hear a case on international copyright exhaustion, and gives a summary of the case.

• Also from PatentlyO, links to videos of patent attorney Kevin Noonan defending genetic patents on 60 Minutes and the Colbert Report.

• Ephemeral Law takes a look at the court documents in Microsoft’s challenge to the Waledac botnet, which it describes as on the “cutting edge of legal efforts to shut down hacking operations.”

• The Wall Street Journal reports that the US Department of Justice is stepping up its antitrust investigation into technology firms’ “no-poach” policy and salary fixing.

• Eric Goldman reports on a decision of the California Court of Appeals rejecting an argument that a California statute prohibiting eavesdropping precluded admitting Yahoo! chat logs in evidence.

• Why the anti-commons aren’t so tragic, from Patent Docs.

• The MTTLR Blog writes about falsely-convicted victims of DNA forensics errors.

• Wired: a new malware scam threatens BitTorrent with copyright infringement suits.

• Spicy-IP blogs about BioPiracy – the practice of mining the traditional knowledge of indigenous communities for biological and medicinal patents – in Africa.

• Feature from The Register: the Russian Association of Electronic Communications promises to crack down on spam and cybercrime.

• British Election special: the mother of British hacker Gary McKinnon, who was at the heart of a recent UK-US extradition battle, has announced that she will run against Chancellor Jack Straw in the upcoming parliamentary elections, from bbc.co.uk.

To any aspiring Twitter-ers: signing up for Twitter is free and pretty easy.  You can read more about it on Wikipedia or on Twitter’s About page.

• The British Parliament has approved a law authorizing temporary suspension of internet access for those accused of repeated copyright infringement, reports the New York Times. Opponents of the law, such as the Open Rights Group, promise to turn this into an election issue in Great Britain.

• Canadian company Wi-Lan has filed suit in the Eastern District of Texas against 19 high-tech companies—including heavyweights Apple, Dell, Motorola, Acer, and others—for allegedly violating its Bluetooth patents, reports Business Week.

• From Wired: a U.S District Court judge has given a lawyer a 30-day sentence for contempt of court for encouraging people to flood the judge’s e-mail account, to persuade him to side with the lawyer’s client in a civil suit. The 7th Circuit Court of Appeals is now reviewing whether the judge had the authority to impose a contempt sentence for conduct outside the physical courtroom.

• The U.S. Court of Appeals for the District of Columbia overturned a 30 year computer ban for a sex offender, saying that the ban is “substantively unreasonable” and “aggressively interferes with the goal of rehabilitation,” reports Wired’s Threat Level.

• The Electronic Frontier Foundation applauds the 2nd Circuit’s decision in Tiffany vs. eBay, finding the online auction company not liable for contributory trademark infringement on the basis of users selling items in Tiffany’s signature blue boxes, but the digital rights organization worries about the lack of a statutory “put back” procedure in trademark law.

• The New York Times has a detailed article explaining China’s internet censorship methods.

• After a federal court held that the FCC cannot impose network neutrality on ISPs (as PC World discusses), the FCC declared its intention to pursue its National Broadband Plan nevertheless. CNET reports that the FCC considers the court’s ruling to have forbidden one technical mechanism for achieving the FCC’s goals, but not the goals themselves.

• From eWeek: an Arkansas woman faces misdemeanor charges for posting slanderous messages on her teenage son’s Facebook account.

• The US Court of Appeals for the Federal Circuit has found that Google’s AdWords program does not infringe the patent for a bidding system determining pricing for ads on search results, Ars Technica reports.

• Mexico may disconnect millions of people’s cell phones for failure to register their identities with the government via text message. This is part of an attempt to fight crime by regulating cell phone use, Reuters reports.