BC Law IPTF Blog

In response to this dig on This Recording (where Alex Carnevale compares siding with the RIAA as supporting lynching): I can’t say that I support what the RIAA is doing. I think, reflecting upon Tim Wu’s articles on socially-acceptable crime, the RIAA is a private interest forcing the hand of government to expend tax-payers’ money in an area it might not be all that interested in. But by the current writing of the law, it has every right to do this.

Tim Wu argues that this is a failure in the political process: We have this law that doesn’t make sense and no one who can change it. Something has to change. Maybe the law *has* to change—but we, the people, don’t have the money or the political willpower to do that. In today’s society, we’d ideally want businesses to adjust their models, practices, and ultimately their ethics to suit their consumer base. But we know that’s not going to happen.

Our inability to act towards our own wants and desires in this sense is credited to our fear of the government watching us, catching us, and throwing us in the can. We get scared off from demonstrating to the government—or to the RIAA—what we think the law should really be.

In an upcoming article on privacy and e-mail, I wrote:

The panoptical society restricts individual autonomy by “unnecessarily constraining individual decision-making” through the constant threat of visibility leveraging the inherently unbalanced power dynamic favoring governmental actors.

(That’s academic-speak for saying the government, by watching us, scares us from making our own decisions about things.)

With the courts and Congress offering little protection for [our privacy concerns], and with the threat of a panoptical society on the horizon, individuals may be forced to adopt extralegal methods of protecting their perceived expectations of privacy. Fortunately, a number of technological innovations offer a variety of methods of prophylaxis from government intrusion.

And this is where things like OiNK come in. OiNK was an “extralegal” method of protecting our perceived rights. But it wasn’t secure enough. Now, to protect those perceived rights, people could then resort to better, more technologically savvy methods. Tighter, “more private” trackers. Tighter file-sharing communities. WASTE networks. Maybe even (gasp) BitTorrent over Tor.

And then hopefully Big Music and the government will see where this leads: They lose their ability to control the people when the people fritter away underground. Is this the type of arms race we want to be involved in? There’s obviously something wrong here—there’s this well-established disconnect between how music is consumed and how Big Music wants to distribute it. So someone’s got to give. And might it not be, in this case, the purpose of business to cede to consumers, and the government to cede to the people?

I suspect the MediaDefender debacle and this OiNK shut-down just hits the techie, hipster, and blogging communities closer to home than the everyman Napster and Kazaa controversies. This will soon blow over, and we’ll be back to the SNAFU we’ve be involved in for the last 20 odd years.

Idolator has two enlightening exchanges with US attorneys about whether US-based OiNK users are at risk for copyright infringement. The take-home is “yes,” but the likelihood of prosecution, on the other hand, is low:

I think it depends on how quickly the RIAA gets its hands on any of the server logs. That’s partly facetious, but I don’t see the U.S. Department of Justice using its resources right now for criminal investigations of copyright infringement. The overseas raids were criminal matters–I don’t expect the same here. Plus, there’s an interesting issue of whether the UK and Dutch authorities would share the information with a private party.  There are long-running debates over data treatment and security between the US and EU.

But if RIAA does get the logs and data, then there will be hell to pay for anyone who used credit cards [to donate]; those who maintained membership via upload will be a little harder to trace because you’d have to follow the IP addresses, and ISPs are not always willing to hand over their customers without court orders

The conversants also note that most of the transaction were done by PayPal. While eBay has an interest in protecting its users’ privacy, a simple court order might do the trick in tracking down copyright violators—should the RIAA and the US government choose to do so.   

This reminds me of this great series of articles on Slate by Tim Wu about how politics prevents (or dissuades by inefficiency in reform and execution) the prosecution of certain crimes—crimes that society, for one reason or another (particularly because of class), has chosen to accept. It all comes down to how important that crime is for the people in charge.

In this case, US-based users might be isolated a bit because the US might not have the interest and time to pursue this claim with cross-border implications. But I don’t believe that the RIAA doesn’t have the time or interest. This just smells like something they’d like to nip in the bud. Though the problem is the “scene”—those involved in the music industry who do the initial leaking—cracking down on the outlets for their indie-cred egos might be an effective way of stemming these illegal pre-releases.

I think this is more of an important issue than people are making it out to be. While before I wondered why the RIAA isn’t going after the big guys—I now think that going after OiNK was the *smart* thing to do. It’s like going after the yuppie coke snorters in the 80s before cheap crack hit the streets. It’s going after the trend-setters (the OiNK scenesters) and not the trend-followers (the unwashed masses on The Pirate Bay).

As can be seen by the record sales from the Kanye West vs. 50 Cent faux brawl (or Lance Bass vs. 50 Cent all-out rumble), or for country music sales, the most popular music isn’t hurting. It’s the up-and-coming, the trend-setters, and the scene-busters where most of the damage is felt. People support illegal file-sharing to help out the Cold War Kids or the Clap Your Hands Say Yeah! bands, but I’ve listened to Tegan and Sara and haven’t spent a penny on them yet. (Sorry for the name-dropping, I’m having a bad time thinking of good band examples.)

But Tegan and Sara (and now great bands like Rilo Kiley) are what’s playing on MTV and as background music on the CW, and that’s the market that’s being hurt by OiNK and the like. It’s this new, emerging market that the RIAA is protecting—for its benefit, but also arguably for the benefit of these really good bands that might be able to make the big break.

I can see the future just being this big, inconsistent mess, much like what Tim Wu discusses in his Slate articles. Big Music lets trend-setting friend-to-peer communities and bloggers build up the hype for up-and-coming bands, basically doing PR for the first album or two, and then when the bands are ready to break out, they shut down those communities and then lock down on the profits. It seems to make sense. Spend no money for the first few years, and then blow it out—getting legal fees and copyright judgments in the meantime. Not bad, puppet-masters, not bad.

Now, we can talk about it: OiNK, the invite-only, free file-sharing community was raided by the police, and the owner was taken into custody. OiNK (once available at oink.cd)was known on the street for distributing a lot of not-yet-released and pre-release versions of albums. But OiNK was supposed to be a secret. (Some facts and rumors about the OiNK takedown.)

It’s interesting that they shot for this below-the-radar service, while the big ones still exist (like The Pirate Bay or Mininova). Maybe OiNK was never penetrated by companies like MediaDefender, and therefore wasn’t controllable or compromisable. Or maybe because OiNK was so good at grabbing those pre-releases. The tough thing is that whomever was behind this action doesn’t have to ‘fess up as to why they targeted OiNK—just that OiNK aided in copyright violations. The other tough thing—for OiNK—is that while he wasn’t making money explicitly for the service, he *did* accept donations, and no matter how minor those funds may have been, they could probably be easily connected with his service to make it for-profit.

And already people are looking back at even tighter friend-to-peer networks (or other darknets) like Soulseek and WASTE. The bump in users to the big guys, again, like The Pirate Bay, will probably barely be noticeable. People don’t want to share their super-secret goodies with the whole world; they want to do it with friends. So files bouncing from WASTE mini-network to WASTE mini-network will be better at insulating the actual initial seeder from discovery.

Regardless, at the end of the day, OiNK was a service that violated copyright—even though as some users will claim, it wasn’t *all* copyrightable, there was some openly free stuff there. Whether it was the proper strategic move to make is another question.

This might be a no-brainer, but since my last comparison of Facebook status and Twitter with .project and .plan, I’ve been trying to use both of the former more often because I think it actually *is* useful for other people to know what you’re up to.

But it’s not just for what class you’re in, emotional states, or latest trysts, but also as a passive way to implore for help, advice, or to hear from others on similar matters.

For example, let’s say that instead of Twittering “waiting for Jim to fall back in love with me” you Twitter “working on methods of contesting temporary restraining orders.” Then, any of your friends who have also contested TROs could contact you with their related experiences.

Or think of Facebook and Twitter as “away” messages when you can’t or don’t use IM. (”Oh, he’s working on TROs, so I better not bother him.”)

Especially if you’re dedicated to using Twitter you can then create a network of friends in your industry or academic field, and when you’re all Twittering about your work, it really does become a community of experts helping experts, and not just a fun distraction on the Internets.

The biggest problem I see so far is that it takes widespread adoption of a certain application. Right now, in my world circles, Facebook is probably the most adopted, followed by IM, then Twitter. If IM were allowed at more workplaces (which I think it should be since voice-mail is getting so passe, and I think voice-mail to text is so cool), then I would think IM would replace this idea, but until then, Twitter-ing your status works pretty well.

(Since I’m not doing any work, my current status is: “Paul is twittering: watching 28 Days later instead of studying, the former being more worthwhile.“)

(Update 10/24/07: Here’s a better status: “Paul is twittering: finding whether admin agencies use the mailbox rule or time of filing to toll appeals limitations periods - and rocking to the Black Keys!”)

Glaxosmith-Kline has filed a federal complaint in ED Virginia’s “rocket docket” seeking to enjoin the USPTO from implementing the new patent rules.  The new rules address continuing applications, requests for continued examination, and examination of claims in patent applications.  They amend 37 C.F.R. sec. 1.75, 1.78, and 1.114, and add 37 C.F.R. 1.267.  GSK alleges that the Rules were promulgated without proper legal authority, and are also “vague, arbitrary and capricious.”  Further, they “prevent GSK from fully prosecuting patent applications and obtaining patents on one or more of its inventions.” 

GSK alleges that Congress has not empowered the PTO to promulgate such regulations.  As a federal governmental agency, the PTO obtains its power soley from Congress, under 35 U.S.C. sec 2 (and Congress, in turn, derives its authority regarding patents from the U.S. Constitution art. 1 sec 8 cl 8.)  Congress has not yet granted the PTO to make these rules, so GSK says that the PTO engaged in ultra vires rulemaking.

Further, GSK alleges, the new rules regarding continuing applications, requests for continued examination, and examination of claims in patent applications are inconsistent with current patent law passed by Congress.  This action violates 35 U.S.C. sec. 2, which gives the PTO power to promulgate rules and establish regulations to govern conduct of proceedings in the PTO, as long as they are not inconsistent with the law.  The extent of the PTO’s authority to promulgate rules is currently being debated in Congress.

Lastly, GSK argues that the Rules “pose an unconstitutional arbitrary and capricious regulatory taking of GSK’s patent and patent application property rights.”

These claims are much more serious than the complaint already filed on this issue.  It will be interesting to watch this debate flush out in parallel to current Congressional action regarding patent law. 

Metacafe via Lifehacker:

Make a pair of noise-canceling headphones from a pair of sound-proof earmuffs (~ $20) and some old headphones.

The gist is you get the sound-proof earmuffs—think what people wear at shooting ranges—that are small and fold nice and compact, pop off the foam padding, then break apart your old, on-the-ear headphones, and pop the speakers right under the foam padding of the earmuffs. From the video, it looks great.

Problem is that it’s not “noise-canceling,” but it’s noise-reducing. The top noise-canceling headphones block out external noise but also use white noise to cancel out the noise that filters through. Furthermore, the quality of sound you get from your “new” headphones is limited to the sound of the old headphones you just tore apart. So, while it may fit the bill, you still might only get the bang for your buck.

So I decided to re-write the BCIPTF Publication Agreement. One of the barriers to publishing articles on our journal is the pedantic process of getting the darn agreement signed. Wouldn’t it be great—instead of mailing a hard copy of the agreement (or burdening an author with printing it out), getting a signature, getting it mailed back, counter-signing, then sending a copy back—if we could do it over e-mail?

Funny you should ask.

Generally a signature is any mark by which a signee intends to be bound. In the old days, it could be an “X” or even in modern days an incomprehensible scribble. It was generally used as a hedge in support of a statute of frauds claim. Written by hand, there are some evidentiary tactics one can use to authenticate a signature—but in an electronic age, what do we have?

First, it has to be understood that a contract with a “real” written signature isn’t self-authenticating. A signature does not a contract make. Even though I have my own fancy, idiosyncratic signature, if I sign a contract with my non-dominant hand and misspell my name, I can still make that contract binding.

Therefore, there’s really no difference between me writing an “X” and calling it a signature and typing my name out on an electronic document. In either case, under oath, I would have to say, yes, I did sign it and mean to be bound by the agreement.

But then we shift back into the real world. Do I really think that a name typed into a word processing document binds me to a contract I want to sneak out of? No way!

Well, maybe. Few things in life are in a vacuum. So leading up to the digital signing of that DOC or RTF file, there’s a chain of e-mails that comprise negotiations. Then in the contract we specify:

Section 9(a)(i)(B) [T]he Licensor e-mails the Digitally Signed Agreement to the Journal from the Licensor’s E-mail Address to the Journal’s E-mail Address, both specified below, and within the body of the e-mail message types “I, [Licensor’s name], hereby accept the attached Publication Agreement.”

There, we have quadruple authentication: a signature on the electronic document, a chain of e-mails leading to an e-mail with an acceptance, a second typed signature in an e-mail, and then an “authenticating” e-mail address. If there’s author metadata in the document, then that’s just a bonus.

Taking a look at ALR: In Cloud Corp. v. Hasbro, Inc., the Seventh Circuit court of appeals ruled that the sender’s name in an e-mail was sufficient as a signature. 314 F.3d 289, 49 U.C.C. Rep. Serv. 2d 413 (7th Cir. 2002). Similarly, the First Circuit ruled in Roger Edwards, LLC v. Fiddes & Son, Ltd. that a chain of business e-mails referencing an agreement satisfied the statute of frauds requirement in Maine. 245 F. Supp. 2d 251 (D. Me. 2003). Part of the reasoning behind courts’ acceptance of electronic signatures hearkens back to days when a typed signature on a telegram was held sufficient for a contract. See Shattuck v. Klotzbach, 2001 WL 1839720 (Mass. Super. 2001).

So maybe this isn’t the *perfect* way of creating a contract. But it has to be weighed with the need for expediency in the larger system. And, as a law journal and forum, isn’t it part of our job to test the waters and try new things to push the edge of legal thinking and processes? BCIPTF was the first law journal to be completely on-line. We have to continue this tradition of keeping new and current in the face of uncertainty.

Update on The MediaDefender Debacle:

The Pirate Bay (”TPB”) announce on its blog that it filed a criminal complaint against MediaDefender’s clients, including Universal Music Group, Sony, Paramount, and Twentieth Century Fox. The charges are “infrastructural sabotage, denial of service attacks, hacking and spamming, all of these on a commercial level.”

TPB tracked back IPs from fake torrents to IPs in the Gmail account they hacked earlier. They also found MediaDefender’s software that creates fake accounts and seeds fake torrents on sites like TPB. Sounds like TPB might actually have some valid claims, at least against MediaDefender.

This could really turn into an extremely interesting case. More to come…

I’ve always followed the typographer’s rule that you should only put one space after terminal punctuation, i.e., a single space after periods and the like. But in my legal writing attorney’s insist on two spaces because that’s the way it’s supposed to be done.

I finally got my copy of The Redbook: A Manual on Legal Style by Bryan A. Garner. Garner is the editor of the Black’s Law Dictionary and is becoming the expert and ombudsman on legal style. Lo and behold, here’s what Garner has to say on the issue in Section 4.12:

Use even forward-spacing in your documents: one space between words and one space after punctuation marks (including colons and periods).

The custom during the reign of the typewriter was to insert two spaces between sentences and after colons. The reason was that letters on a typewriter are monospaced… Continue the custom only if you use a typewriter or the Courier font.

Now what’s unclear is that Garner claims that “most word processors can automatically replace two spaces with one.” Does this mean that when you type two spaces, the word processor automatically replaces them with a single space? That doesn’t appear to be true—two spaces after a period creates more space than one space. I think he must be referring to a search-and-replace functionality.

Another personal victory: It seems like most lawyers I’ve worked with eschew using serial commas. Here, Garner agrees with Strunk & White in Section 1.3: “Use commas to separate words or phrases in a series of three or more, and include a comma before the conjunction.”

Yes. Axe? Ground.

A Federal District Court in Springfield, Mass. has given Mass MoCA permission to display unfinished works of Christoph Buchel. The artist had tried to prevent the museum from going forward with the scheduled exhibition under the Visual Artists Rights Act. As today’s New York Times decribes: Michael Posner ruled that VARA, which protects an artist’s right to not be named as author of a work that has been modified, did not block display of unfinished works simply because they are unfinished. Later in the article, the artist indicates that the works had been modified after he had stopped cooperating with the museum.

Mass MoCA had been exhibiting the work under tarps to wide criticism. Many believe than an artist should ultimately have the last word on when a work is ready for display, and this certainly seems to be the thrust of VARA.

Buchel’s large work was undoubtedly an expensive installation and largely missing from the Times’ analysis is the power dynamic between museums and artists. Mass MoCA certainly relied on the exhibition going forward in their plans for the year. Museums attract new members based on forthcoming shows and development directors would be in a difficult place if too much uncertaintly attached to that schedule. Budgeting and selections for other exhibitions require a museum to trust that an artist will remain committed to the project.

It’s a shame that the parties couldn’t come to a workable solution. Although they can now display Buchel’s work, with a notice that it is unfinished, Mass MoCA gains little from the win beyond a reputation for not respecting the artists it chooses to display.