Archive for February 2011

Parsing the Pause that Refreshes

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This American Life, the popular public radio show hosted by Ira Glass, devoted its entire hour this past weekend to the cracking the Coca-Cola formula, perhaps the most famous trade secret in the world. Long rumored to contain cocaine, Ira Glass and company have posted the recipe online - or least, what they think the recipe is. Time described how TAL found their recipe in an 1879 photo from the Atlanta Journal-Constitution, showing the notes from a friend of John Pemberton, the inventor of Coca-Cola. The Christian Science Monitor reports, though, that the Coca-Cola denies that TAL has the real recipe, and that it remains a secret. The CSM article elaborates why Coca-Cola has few other options than repudiating any exposed recipe; in order to sue, the company would have to disclose the actual recipe in court, thus dissipating trade secret protection. Unlike patents, copyrights, and trademarks, trade secrets aren't covered by an overarching federal statute. Thus, among IP protections trade secrets are the weakest - as soon as Pandora's Box is opened and the secret is revealed, it can no longer be deemed a secret and the protection is lost. However, unlike other types of IP protections, trade secrets can last forever - there is no time limit. One might wonder: If something successfully remains a secret, why do we have worry about granting IP protection at all? The answer lies in employment contracts: specifically non-compete and non-disclosure agreements. While there generally are presumptions against unconscionable non-compete and non-disclosure clauses, the importance of trade secrecy protection may override an unconscionability defense. Thus Coca-Cola could, in an employment contract, inform its staff that they could never disclose the formula, and the draconian nature of such clauses would be justified on the basis of protecting the trade secret. By claiming that this isn't the formula, Coca-Cola inoculates itself against anyone challenging the continued existence of trade secrecy protection. Given the subjectivity of taste tests and the complexity of the formula (something no one disputes), it seems likely that the mystery of the most popular soft drink of the world will remain in dispute despite this latest "exposure."

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February 16th, 2011 at 3:11 pm

Posted in Commentary

IP2K?

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The New York Times has an article on Vint Cerf, who played a major role in the beginnings of what we now know as the Internet and currently serves as Google's Chief Internet Evangelist, and IPv6. For those who don't know, all web URLs (likewww.mttlrblog.orgwww.mttlr.org, or www.law.umich.edu) are merely shortcuts for Internet Protocol (IP) addresses. Those addresses, like telephone numbers, aren't infinite - and we're close to running out. Earlier this month, the last block of IP addresses was distributed amongst the five registries that, in turn, give them to Internet Service Providers for use. The article posits that the proposed to switch to IPv6, the new system that will avoid the problem of depleting the number supply, resembles the Y2K switch; however, there are some key differences, especially given that the problems may last longer than the switchover from 1999 to 2000 did. However, the planning has been more centralized, and a test run on June 8 of this year may bring to light any unforeseen problems. It is possible that the IPv6 challenge may rekindle the debate on how IP addresses and systems are currently maintained. ICANN, the Internet Corporation for Assigned Names and Numbers, a nonprofit corporation based in California, at present plays an important role in determining how issues like IPv6 will be resolved. Some have criticized the U.S.-centric stance of ICANN; thus, it's possible that an unsuccessful resolution to the IPv6 situation will prompt re-evaluation of how IP addresses are assigned and governed.

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February 15th, 2011 at 2:24 pm

Posted in Commentary

The Closing of Open Mic Night

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The Washtenaw Voice reports that a popular weekly music event at the Jolly Pumpkin, the popular Ann Arbor restaurant, has been shut down to copyright issues. Performers were informed by Jolly Pumpkin management that the event violated rights held by ASCAP, the American Society of Composers, Authors, and Publishers. ASCAP represents artists who hold performance rights; by performing songs whose rights are held by ASCAP clients, the musicians at the Jolly Pumpkin were infringing the exclusive right granted under copyright law. ASCAP informed Jolly Pumpkin management that even if artists only performed original music, that would still infringe the rights of ASCAP's clients. It's unclear to me how that might be the case; let us know if you have any theories on that issue. In the mean time, some of the Jolly Pumpkin musicians perform at the Blue Tractor a few blocks away; Blue Tractor has a license with BMI, an organization similar to ASCAP.

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February 8th, 2011 at 12:44 pm

Posted in Commentary

Egypt Gov’t Kills Internet – WikiLeaks, Al Jazeera, Hacktivists Respond

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At 5:34 PM EDT on January 27th, 2010, the Egyptian government turned off its own infrastructure in response to a series of violent protests criticizing President Mubarak’s de facto dictatorship.  Mubarak appears to have ordered the Internet Service Providers (ISPs) Link Egypt, Vodaphone/Raya, Telecom Egypt, Internet Egypt, and Etisalat Misr off the air.  Internet traffic plummeted from 2000 MBps to almost 0 MBps in less than fifteen minutes as every Internet café, bank, school, and embassy went dark.  Cell phones also went dark. This was not an automatic “lightswitch:” rather, the data shows ISPs turning off one by one over the course of 13 minutes, suggesting that the ISPs all received very important phone calls, one by one, instructing them to pull their service. The Egyptian government first attempted to stop the protest mobilization by blocking Twitter and Facebook.  However, this did not stop the access; selective blocking programs can easily be avoided by computer-savvy protestors by establishing anonymous “proxies” to circumvent the censorship programs.  Today, they took a different approach, and literally pulled the plug by making the ISPs shut down the Internet - almost like the Mediterranean cable break of 2008.  There is no infrastructure – there is no Internet, period.  Establishing proxies is impossible - it would be like snipping your phone line and trying to make a call. Internet use has commonly been used as an organization tool for social unrest.  It was predominant in the Ukrainian Orange Revolution of 2004, the Red Shirt uprising in Thailand last year, and most recently in Tunisia just a couple weeks ago. In order to keep communication open, Al Jazeera has released several images and videos under the Creative Commons license.  This license makes the photos and images available for free use as long as the user gives credit and does not alter the photos.  Al Jazeera hopes that this public access will encourage dissemination of the images to counteract the blackout. Meanwhile, WikiLeaks further encouraged the protesters by releasing cables related to Egyptian corruption and unsatisfactory stances on human rights. Cables showed evidence of the Egyptian government's suppression of critics, police brutality, and planned undemocratic transfer of power to Mubarak’s son.  WikiLeaks also revealed that the U.S. may have supported Egyptian opposition groups. But with the Internet shut down, how did Egyptians have access to these WikiLeak-ed documents?  The hacktivist group known as Anonymous used Egypt’s intact land lines to fax thousands of copies of the cables to various numbers in Egypt. Sometimes, the old ways work best.

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February 2nd, 2011 at 3:48 pm

Posted in Legal/Tech News

Bing Is Not Google – Or Is It?

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Wired and the Wall Street Journal have reported that Google has accused Bing, Microsoft's Internet search engine, of copying Google's search results. Google reports that Microsoft initially denied this claim; later, Wired revealed that Microsoft was dismissive of Google's complaints. The two companies have long been at odds over which service provides better results for users; when Microsoft launched the new search engine, the confusing name "Bing" (as well as inconsistent results) prompted some wags to claim the name stood for "But It's Not Google." The question of "copying" search results is more than an accusation that Microsoft isn't playing fair; it also raises a copyright issue. Arguably, Google's search method - indexing the vast expanse of the Internet - might be a copyright violation, as it takes data from individual copyright owners and displays it in results (the tiny snippet you see in the results list), possibly infringing upon the owner's display rights. However, this might fall under the fair use defense. Paid Content has a helpful analysis of the copyright questions in this dispute, observing that Google's ordering of its search results can likely receive copyright protection. Microsoft's use of those results, however, was just one variable in its code, so a copyright claim on this specific element of Google's data may not succeed.

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February 2nd, 2011 at 1:16 pm

Posted in Commentary

“Premature” lawsuits challenge FCC’s net neutrality rules

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Now that a month has passed since the Federal Communications Commission issued their long-awaited order on net neutrality, the lawsuits have begun.  Two companies, Verizon Communications and MetroPCS, have already filed suit in federal court, arguing that the FCC lacks statutory authority to issue rules enforcing net neutrality. Interestingly, MetroPCS is the only major wireless service provider to charge customers for different levels of bandwidth access.  In particular, their $40/month plan that blocks all video streaming other than YouTube has raised eyebrows among open internet advocacy groups, who argue that the plan lacks transparency and "stifles competition, consumer choice, and innovation." These lawsuits do not come as a surprise to those in the industry.  The FCC argues that these suits, however, are "premature" because the net neutrality order of December 21 has not even been published in the Federal Register yet.  Because the net neutrality order modifies an entire class of licenses, the FCC argues that companies must wait until after publication to file appeals, and that these suits should be dismissed.  Verizon promptly countered that because the issues are so important, it was obligated to play it safe by filing within 30 days of the FCC's release of the order, rather than waiting until after publication and potentially missing the deadline. Even if the court finds these initial suits "premature," Verizon and other companies are expected to promptly refile after the FCC publishes the order.  The FCC will be ready; in December, FCC Chairman Julius Genachowski said the agency was prepared to go to court to defend its statutory authority.

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February 2nd, 2011 at 1:16 pm

State of the Union: The Nation of Google and Facebook

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During last week’s State of the Union address, President Obama (predictably) spent a great deal of time outlining a strategy for modernizing the U.S. economy and enhancing American competitiveness in an increasingly global market. In his speech, the President repeatedly emphasized the importance of  technological innovation as a tool for lifting the country out of the recession and building a foundation for continued economic growth. Here are a few of the highlights: The President began by highlighting some of the triumphs of technology, saying, “[w]e are the nation that put cars in driveways and computers in offices; the nation of Edison and the Wright brothers; of Google and Facebook," adding that  “innovation doesn't just change our lives...[i]t is how we make our living." At the same time, however, the President acknowledged that technology also plays a disruptive, even destructive role in the global market: "In a single generation, revolutions in technology have transformed the way we live, work and do business.  Steel mills that once needed 1,000 workers can now do the same work with 100. Today, just about any company can set up shop, hire workers, and sell their products wherever there's an Internet connection.” His solution? A substantial investment in technology infrastructure in order to lay a foundation for the economy of the future. The President reaffirmed his commitment to ensuring high-speed internet access throughout the country, stating his intention to provide broadband access to 98 percent of Americans over the next decade. In 2010, the Commerce Department reported that 40 percent of Americans lacked high-speed access in their homes. The President explained: “This isn't about faster Internet or fewer dropped calls. It's about connecting every part of America to the digital age. It's about a rural community in Iowa or Alabama where farmers and small business owners will be able to sell their products all over the world. It's about a firefighter who can download the design of a burning building onto a handheld device; a student who can take classes with a digital textbook; or a patient who can have face-to-face video chats with her doctor." Hooray! Iphone 4s for all! "We need to out-innovate, out-educate, and out-build the rest of the world," he said. "The first step in winning the future is encouraging American innovation." "We need to teach our kids that it's not just the winner of the Super Bowl who deserves to be celebrated, but the winner of the science fair." I'll reserve the comments section for debate on whether the President would have changed that last line to "winner of the World Series" if next weekend's Super Bowl had included his hometown Bears.

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February 2nd, 2011 at 1:14 pm

Posted in Commentary

A “Far Cry” from fair play? p2p settlement suits raise new issues

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Since the RIAA ended its campaign against music file sharers, a new group of lawsuits targeting users of p2p networks like BitTorrent have been making headlines.  Private law firms representing copyright owners of motion pictures have, to date, served notices on almost 100,000 users of p2p software, alleging infringing activity. Recently, some of the tactics used by these law firms have come under fire, both by commentators and the potential defendants themselves. After obtaining the user’s information via subpoena from the user’s ISP, the attorneys send a letter of notice to the alleged infringer offering a pre-suit settlement.  One recipient of such a letter fought back, filing a class-action lawsuit last November against the firm of Dunlap, Grubb & Weaver (known as the US Copyright Group).  Dmitriy Shirokov received a letter from the firm alleging that he had shared Uwe Boll’s film “Far Cry” on the BitTorrent network.  Dmitriy’s complaint against the USCG alleged multiple claims relating to the settlement tactics the firm employed; among the 25 claims are extortion, conspiracy, and several counts of fraud. This week, the USCG responded to Shirokov’s complaint, claiming that an individual like Shirokov, who hadn’t paid a settlement, hadn’t been harmed and thus didn’t have standing to sue.  Additionally, the firm asserts that though its conduct may be such that it could result in judicial sanctions, its course of conduct isn’t actionable.  A report by Arstechnica notes the obvious ethical issues this case presents – it can’t be true that a lawyer only owes a duty to his own client and can operate unethically towards others. The USCG has had its share of other hurdles in the “Far Cry” case.  It had to drop most defendants because they were outside the jurisdiction of the court where the cases were filed.  Additonally, as Shirokov’s complaint highlights, the copyright registration for “Far Cry” may have been filed too late.  Under §412 of the Copyright Act, this would limit the firm’s ability to obtain statutory damages and attorneys fees for any infringing conduct occurring before registration.  The problem here is that your average p2p user isn’t well versed in copyright law.  Upon receiving a settlement notice, they’re more likely to cut their losses and pay up than to investigate the merits of the claim.

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February 2nd, 2011 at 1:10 pm

Posted in Cases,Commentary

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