The Law Developer

     I spent the whole weekend working on my Immigration Law exam. This might seem topical to some people given Arizona’s new immigration law and the renewed calls for immigration reform. Some people are discussing the pros and cons of immigration reform, but all I can think is that if they change the immigration laws, then everything I learned over the past 13 weeks is now bunk.
     Oh well. I did read this article about a new Massachusetts law. This law requires companies that store personally identifiable information about MA residents to encrypt the data, both in transit and in the database. While this law may be hard for some smaller companies to implement, I think it is a step in the right direction. If companies want to compete on the Internet, they need to take some basic, appropriate steps to ensure that customer data is safe. It is not often that I welcome new government regulations, but I think I’ll make an exception for this one.

Stephen Burch

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     That’s the question posed by this Washington Post article, after a nine-year-old hacked into his school’s computer system. I am a senior software engineer, and I’m not sure I would know how to hack into a computer system. I am certain that at the age of nine, I didn’t even know what hacking into a computer system meant. But the world is changing. My kids have a hard time understanding why we can’t fast-forward through commercials when we’re watching live TV. They use my iPhone to get on the Internet while we are on road trips. They are immersed in technology. While older people are frightened of new technology, kids embrace it. It makes me feel old (well, that and being old). But the best news from the story, since the kid didn’t do any real damage, the police aren’t going to press charges.

Stephen Burch

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     A Maryland man, Anthony Graber, decided to drive his motorcycle at reckless speeds down public streets and, in a stroke of genius, decided to record his antics from his helmet camera for later viewing on YouTube. Fortunately for the other drivers of Maryland, a police officer caught Mr. Graber and arrested him. And, thanks to Mr. Graber’s helmet camera, we can watch it all on YouTube.

     Happy ending, right? Unfortunately, no. Mr. Graber had his computer confiscated and is now being charged with violating Maryland’s wiretapping law for recording the conversation between him and the police officer. Here is the relevant section of the statute:

§ 10-402.

(a) Except as otherwise specifically provided in this subtitle it is unlawful for any person to:

(1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

(2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle;

     Based on a plain reading of the statute, it appears as though Mr. Graber violated the law, but a plain reading of the statute would most likely violate the First Amendment. A Maryland appellate court, however, has determined that the “oral communication” portion of the statute requires “factual finding[s] of reasonable expectations of privacy.” In other words, if there is no expectation of privacy in the communication, there is no violation of the statute when applied to oral communications.

     Let’s take a step back and discuss Miranda warnings. Miranda warnings are required to be given to a person who has been taken into custody by the police. Yet, courts have held that when a person is in the custody of police officer during a traffic stop, the police do not have to read the Miranda warnings. This was decided in the case Berkemer v. McCarty, in which the U.S. Supreme Court held that people pulled over during a traffic stop are in temporary police custody, but because (among other reasons) the stop occurs in public view, Miranda warnings are not necessary. The Court believes that because the public is viewing the stop, the police cannot be as coercive as they would be during a normal custodial interrogation.

      Most of you know where I’m going with this. If Miranda warnings are not necessary during a traffic stop because it occurs in the public view, the police officer who pulled over Mr. Graber could not have had a reasonable expectation of privacy during this traffic stop. The police want it both ways. Traffic stops are in the public view when the question is whether or not to read Miranda warnings, but the police expect privacy during the traffic stop when it comes to detainees taping their actions. Leave it to the cops to take any good will they earned by arresting a self-centered jerk who threatens the lives of everyone on the street and throw it away by going overboard and violating the guy’s First Amendment rights. Hopefully, this guy will have the charges dropped and maybe even win some money in a civil rights suit against the police.

     One last thing before I wrap this up, the article tries to paint the officer who pulled over Mr. Graber as reckless and overzealous. I just don’t see it. The officer did pull his gun, but practiced excellent muzzle control. Given the circumstances, pulling a gun doesn’t seem that out of line. The writer also tries to fault the officer for waiting a few seconds to announce himself as an officer (he was a plain clothes officer). Watching the video, the officer secured the situation and then announced himself. I am as critical of the police as anybody, but I just don’t see an issue here. The officer acted the way that I would expect an officer to act under the circumstances.

     This whole thing puts me in a weird position. I have to defend the first arresting officer because the article writer tries to fault him in the situation. Then I have to defend the attention-seeking jerk because other police officers violate his First Amendment rights. Defending a police officer and a narcissist all in the same post makes me feel dirty. I guess if I want to be a lawyer I better get used to that dirty feeling.

via TechDirt

Stephen Burch

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     With State budgets coming up short, legislators in many states are looking for more tax revenue. North Carolina is no exception. After passing a law that forced Amazon to either end its affiliate program or pay state taxes, Amazon cut off any of its ties to the state. This ingenious act of forethought cut off a revenue stream for many people – people who pay taxes, live, and vote in the state. Not to fear, North Carolina has another plan to squeeze more money out of its constituents.

     This plan involves demanding that Amazon provide the name and address of all customers residing in North Carolina along with the items that they purchased. What is the point of all of this? To collect sales tax money from Amazon customers who paid no state sales tax when they purchased the goods from Amazon. What could possibly go wrong? Well, for starters, it very likely violates the law. The article points to two court cases that have held that a person’s book purchases are both private and protected by the First Amendment. It also points to the Video Privacy Protection Act which makes disclosing people’s video purchases illegal.

     Amazon is holding firm that it does not have to release this data. While Amazon does sell more than just books and movies, I hope that this case makes it far enough to declare that everybody’s purchases, regardless of the type of product, are to remain private information. In any event, this is overshadowed by a bigger issue – why are the constituents of North Carolina allowing their elected officials to violate their privacy? Worst of all, this type of behavior isn’t just isolated to North Carolina. People from all over the United States allow their elected officials to do things that negatively affect them. North Carolina has already cost its citizens money by forcing Amazon to discontinue the affiliate program in the state. Now it wants Amazon to reveal purchase information for all of North Carolina. No one would ever expect this type of disclosure from a brick and mortar store. In fact, those types of stores don’t even collect or store that kind of information. Amazon shouldn’t be forced to violate its customer’s privacy just so tax collectors can then use that information to harass its customers. Then again, they are tax collectors. Violating privacy and shaking people people down for money seems to be their M.O.

Stephen Burch

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     In my first post about UbiSoft’s DRM failure, I came to the conclusion that there was most likely no real legal recourse for affected users. This was based on my assumption that the DRM server outage was an isolated incident. You know what they say about assumptions. Well, apparently the problem is ongoing, which changes my analysis:

     The first issue is monetary damages. As I previously stated, a single outage of a few hours caused by outside hackers probably wouldn’t yield any damages. However, users constantly being denied access to their game will yield a different result. With the current situation, there may be enough damages for a lawyer to pick this up as a class action. The problem with a class action for affected users is that they probably won’t ever see much money from a settlement. But the lure of a large contingency fee could entice a lawyer to take the case. And with a lawyer on the case, affected users can seek a recourse that will actually address their problem.

     That recourse is an equitable injunction. Injunctions are only issued when monetary damages are not adequate. In this case, even if UbiSoft compensated its users for playing time lost, that would not prevent users from any losses going forward. An injunction would resolve this problem. The lawyer could ask the judge to force UbiSoft to change its DRM to allow the game to play even if the Internet connection is lost or the DRM server does not respond. If the injunction allows UbiSoft to require DRM authentication upon installation, subsequent failures of the authentication server or lack of Internet connection shouldn’t prevent the user from playing. This would be enough to prevent the casual user from pirating the software. Meanwhile, more hardcore pirates, who aren’t even deterred by the current system, would just continue to download the cracked version (which doesn’t use the DRM authentication anyways). This injunction would allow UbiSoft to continue to protect its intellectual property while keeping it from denying users access to their purchased property.

     Every contract has an implied covenant of good faith and fair dealing. While I believe DRM is a bad business move, it is certainly legal. But when a company’s DRM is so poorly executed that users are unable to play their games, the company has breached its good faith duty to provide a stable DRM server. I still stand by my first post though- the best way to stop DRM is to not buy games with DRM. Money always talks and the courts are usually not the best outlet to make companies change their business practices. As a future lawyer, I welcome the challenge of being utilized to accomplish, well, pretty much anything… Especially if the people wanting the change have money for my retainer.

Stephen Burch

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     Enemies of the United States use a myriad of techniques when it comes to attacking us. These attacks range from low-tech suicide bombings to high-tech cyber attacks. To combat the latter, the Pentagon has created a U.S. Cyber Command to coordinate all of the military’s online activities. The threat from cyber attacks is real and with an increasing dependence on the Internet, even for government and military uses, the need for a dedicated team to defend the U.S. from cyber attacks is long overdue.

     What I fear from all of this, however, is the over-expansion of the role of the Cyber Command and definition of cyber attack. To illustrate my point, look at this article from Revere, MA. A man running for city council had an unknown person threaten to post pornography on a website baring the candidates name if the candidate didn’t pay him money. This is a simple case of extortion, but the headline from the article: ‘Revere candidate target of cyber attack’. Despite their ubiquity in modern life, computers and the Internet are still like magic to many people. When the Government and news outlets start drumming up fear of cyber attacks, it causes people to get very skittish. Skittish and fearful people look for a protector and the Government is all too happy to expand its role to ‘protect’ the people. With this new increase in power, comes new laws and decreases in privacy and freedom.

     When Paul Revere made his famous ride warning the people of the invasion of the British, he did so to increase the liberty of the people and remove the chains of an oppressive government. Now, when the Government warns of impending invasions, it is to increase government power and decrease liberty. Don’t let new technology and new technical terms scare you. Be wary of a government that uses fear to increase its power. In my Internet Law class, one of the reoccurring themes is that existing laws are more than adequate in dealing with legal issues (criminal, tort, property, contracts, etc.) that occur on the Internet. In the Revere article, existing extortion laws can adequately handle the issue. But there have been some attempts to create new laws to handle online activity, e.g. Lori Drew (who was eventually acquitted) and a horde of cyberbullying laws. These laws aim to limit First Amendment rights while trying to solve a problem already addressed by existing law. These laws have traction because they play off of fear. Don’t let your lizard brain succumb to these fears. Remember, the only things we have to fear are spiders, snakes, werewolves, sharks, dying alone, zombies, clowns, heights, big dogs, robots with human brains, Johnson’s wife, and fear itself! (link)

Stephen Burch

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     Apparently Florida isn’t the only state where people lacking in customer service like to sue their customers when they complain. T&J Towing decided to sue a Western Michigan University student who started a Kalamazoo Residents against T&J Towing Facebook page. The student asserts that nothing he said was untrue, but the towing company is still suing for $75,000. This lawsuit is nothing more than an attempt to shut down free speech. I’ll let Cooley Law Professor Curt Benson summarize the towing company’s case:

“So frankly, he’s got an awfully hard lawsuit to win here and frankly, I get the impression it’s more like him sending a message to the community, ‘don’t say anything negative against me because I’ll file a lawsuit against you.’”

     Maybe I should start a Facebook Group called ‘Jerks who File SLAPP Suits’. I wonder if that would be considered defamation?

     As a follow up to my Viacom v. YouTube post in which I discussed how Google was in the right and how I hoped it would prevail in its copyright infringement suit, now I’m not so sure. Viacom has released some more information that makes me think that Google may not be as innocent as I had originally believed. It made public Google’s analysis of YouTube when Google Video was a competitor of YouTube. Below are three of the statements included in the analysis:

  * “YouTube’s business model is completely sustained by pirated content.”

  * “YouTube’s content is all free, and much of it is highly sought after pirated clips.”

  * “[W]e should beat YouTube by improving features and user experience, not being a ‘rogue enabler’ of content theft.”

     That doesn’t sound good. It purchased a company that it knew was built and sustained by piracy. Viacom also disclosed bullet points from a slide that Google created to determine how to handle companies like Viacom. The most interesting of which is “Set up ‘play first, deal later’ around ‘hot content.’” Basically Google is saying that its strategy for dealing with pirated content is to put it on its site first and deal with any consequences later. Well, the consequences may be… (*puts pinky finger on edge of my mouth) ONE BILLION DOLLARS!

     I think it would be a good business decision for movie and TV studios to allow their videos to appear on YouTube. But it should be their decision. If a company like YouTube purposefully seeks out to obtain and display content that it does not have rights to show, it should face consequences. Google’s analysis of YouTube shows that it understood that YouTube was popular because it had pirated content, yet Google still bought it. The Google slide clearly demonstrates that Google itself wasn’t worried about violating the rights of copyright holders. Now Google has definitely changed its ways. It has an incredibly sophisticated content detection system that allows it to notify copyright holders when their videos appear on YouTube. Apparently though, Google wasn’t always as diligent in preventing pirated videos from appearing on its site. And by not as diligent I mean it actively sought out and displayed pirated videos.

h/t Ben Sheffner for the Google vs Viacom articles.

Have a Good Weekend.

Stephen Burch

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Update: Looked more closely at the case and it appears that Mr. Harris did not have a lawyer. I think the idea still stands in general, except Mr. Harris probably would have been better off if he had obtained an attorney before taking on one of the largest software companies in the world.

     Eric Goldman at the Technology and Marketing Law Blog, recently posted about a case regarding Google’s Phonebook application and privacy. It involved a Jonathon Harris, coin seller, who had his home address published in Google’s Phonebook application. With the rising prices of gold and the fact that he deals in gold, Mr. Harris feared that having his home address published would get him robbed. Mr. Harris went through the administrative channels at Google to have his name removed and was ultimately unsuccessful.

     So what is a person who has a fear that publicity will lead to him being robbed to do? File a public lawsuit with his name and address of course. Lawsuits, is there anything they can’t do? People should really familiarize themselves with the Streisand Effect before they file lawsuits about issues they prefer to remain private. Or at least hire an attorney who will move to have the address redacted before the case is published. Mr. Harris went from having his home address in Google’s Phonebook to having it on the public record and discussed in a popular law blog (and now this blog too).

     To make matters worse for Mr. Harris, he also lost his case (the legal issues are discussed more in depth at Mr. Goldman’s blog). So now his home address is still in Google’s Phonebook as well as a court case and blogs. His attorney probably charged him a nice chunk of change to get him in this situation too. Before the case, someone would have to know Mr. Harris personally to know that he dealt in gold. Now, anyone who searches for his name will know that he deals in gold and they will be able to determine his address.

     Some people don’t understand how the Internet works. Not too long ago, court cases would have been incredible difficult for an average person to access. A small court case would have never caught the attention of too many people. Now, local issues can become worldwide news in a matter of seconds. The contents of a court case are available and easily accessed online by anyone. Lawyers should understand the Streisand Effect and advise their clients who wish to keep a matter quiet about the effects a court case can have on their privacy. Lawyers should look for their client’s root goal, in this case privacy, and work toward that. They shouldn’t just look at the immediate problem, Mr. Harris’ address in Google’s Phonebook, and attempt to fix that problem at the expense of the root goal. Then again, litigation probably pays more and times are tough…

Stephen Burch

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     Recently Apple announced its newest iPhone, iPod Touch, and iPad operating system and software development kit. With the new development kit, however, comes new developer restrictions. The restriction that is causing the most controversy relates to what programming language the developer must use to develop the application. In this article, the writer alludes to the fact that Adobe is getting ready to sue Apple over these restrictions. So how does this restriction affect Adobe and what cause of action could it possibly have?

     I’ll start with the technical aspects of issue. Companies like Apple and Google, when creating operating systems, create library calls that developers can use to access the underlying system hardware. They act as an intermediary between the hardware and the applications. For example, they can provide library calls that allow a developer to access the GPS, accelerometer or keyboard. The languages that are used for iPhone development are C, C++, and Objective C. These languages are not the most simple languages to use and all have a very steep learning curve. This is where Adobe and some others come in. Adobe created a type of application called Flash that is used in many web applications, including YouTube. Flash applications are developed using Action Script, a programming language that is much less technical to use than the C type languages. Adobe has added a feature to their Flash development suite that allows a developer to create a Flash application in Action Script and export it to an iPhone application. This dramatically lowers the learning curve necessary for people to develop iPhone applications. The new restriction by Apple will prevent applications developed using tools like Adobe’s from being submitted to Apple’s App Store. In its defense, Apple’s CEO Steve Jobs pointed to this article to explain the business and technical reasons why it added the new restrictions. The arguments center around the quality of applications created this way and the effect that these applications would have on Apple’s ability to add new features.

     So now we know how this restriction affects Adobe, but what legal action could it have against Apple? I don’t really see any. Commenters on the article seem to believe that there will be some sort of antitrust action. From what I know of antitrust law, I don’t think Adobe has much of a claim. The first determination that needs to be made when looking at an antitrust claim is what is the relevant market. The market that Adobe’s application is trying to compete in is the mobile application development environment (tools that developers use to create new applications). Apple doesn’t even come close to having a monopoly in that market. If Adobe’s plan is suing Apple for antitrust violations, it has a rough road ahead because Apple’s monopoly doesn’t affect its business.

     But Adobe doesn’t have to be the one to bring suit. Antitrust claims can be brought by the U.S. Government via the Department of Justice or the Federal Trade Commission. While Apple may not have a monopoly of development environments, Apple may have a monopoly over the mobile application store market. According to engadget, Apple’s App Store accounts for 99.4% of all mobile application sales. If I recall correctly, that represents a monopoly in all U.S. jurisdictions. However, having a monopoly is not per se illegal if it is obtained by using good business acumen. The illegality comes in when a company with a monopoly uses it as leverage to expand its monopoly or to prevent competition.

     Do these restrictions either expand Apple’s App Store monopoly or prevent competition? They most definitely do both, and the article Steve Jobs pointed to as a defense of his new restrictions admits as much. Imagine that you are a mobile device developer. You have to determine what mobile platform you want to write your application for. Apple’s platform constitutes 99.4% of all sales so the smart money is on you developing your application for Apple. When the application is finished, you have a choice: you can re-write your application for other platforms or you can begin work on another Apple application. Your time would probably be better spent creating another Apple application because it has most of the market. However, if you could write your application in one language that runs on multiple platforms, to the exclusion of Apple, and then export that application to Apple’s platform using an automated tool, you could put your one application, written in one language, in multiple market places with minimal effort. Apple’s restrictions serve to leverage its monopoly to reduce both the developer and application pools for other mobile platforms.

     The U.S. Government could bring an antitrust claim against Apple. Previously, I have discussed other antitrust issues with regards to Apple’s App Store and its Developer Agreement. Adobe’s complaining might be enough of an incentive for the DOJ or FTC to take action, most likely trying to force Apple to open up its App Store and eliminate the developer restrictions. Will this happen? I don’t know, but I do know that the Government is in the best position to take on Apple and its anti-competitive practices. Apple’s closed system was never a big deal when it only controlled a small percentage of the market, but now that it has a monopoly over mobile application sales, it cannot continue to act in the same way. Apple’s closed system allowed it to control exactly how its devices were created and helped it to achieve the success it now enjoys. But now that success may end up costing it the control that it holds so dear. Like a great philosopher once said, “Hold on loosely, but don’t let go. If you cling too tight babe, you’re gonna lose control.” Truer words have never been spoken.

Stephen Burch

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     I have talked a lot about bad patents and how the patent system should be reformed to better prevent these patents from being granted. I decided that it would be a good idea to start a category called ‘Bad Patent’ and keep track of bad patent ideas as I come across them. Here are the first two entries.

     The first is from Google. Their description of the patent:

“A user of a web service is prompted to endorse the web service to the user’s friends or other connections by submitting a status message to one or more status messaging services to which the user belongs.”

And from the article:

“You know when you sign up for a service and it lets you post a message to your friends on Twitter or Facebook inviting them to join? Yup, Aardark is somehow claiming that this was the company’s own invention.”

     The second is from IBM. They consider it an invention to optimize a program by trial and error. Their description of the patent:

“A method for developing a computer program product, the method comprising: evaluating one or more refactoring actions to determine a performance attribute; associating the performance attribute with a refactoring action used in computer code; and undoing the refactoring action of the computer code based on the performance attribute. The method of claim 1 wherein the undoing refactoring is performed when the performance attribute indicates a negative performance effect of the computer code.”

     I do look forward to being a lawyer, writing incredibly obvious, simple things in complicated ways. There is apparently good money in doing that. If a normal person had written that it would look something like this:

“Try something. If is slows down the program, undo it. If it speeds up the program keep it.”

     I think law schools should offer a class in obfuscating language because I am not sure I have learned how to make things that obtuse and it seems to be a requirement for legal writing.

h/t thelittlekitchn from The Little Kitchen for the Google Article

Stephen Burch

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