Intellectual Property Law Internet Law IT Law Computer Law

You will find more details regarding my laconic topic in the article available at www.arstechnica.com website. Logic won over lobby. Very good.

When I see such legislative initiatives as reported by the European Digital Rights at www.edri.org website, I start to doubt about European integration if the process of adopting directives looks like that (you do remember how was the Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions adopted and all this controversy with ignoring the voice of one country during the Council meeting right?). I see a lot of advantages of the Community Trade Mark system but lobbying in the European Union makes me annoyed at the bureaucrats and European bureaucracy and you should read this post in such manner. ;)

Update on July 8, 2008.
Philippe Aigrain has written a very detailed post regarding lobby process within the EU in the field of IP law. It is available at www.paigrain.debatpublic.net website.

I started an academic platform called www.lawinit.com together with dr Wojciech Wiewiórowski and thanks to great help of Marcin Sochacki and Marcin Czerwiński. We think about English version too so if you are interested in such academic cooperation then you are warmly welcomed. Meanwhile, among other things there are great translations of German courts judgments provided by Justyna Kurek.

Hackers from the Chaos Computer Club published fingerprint of Wolfgang Schauble, Germany’s interior minister not so long time ago. Check www.wired.com. Meanwhile Privacy International and British NO2ID organization offer a reward for a person who will be the first one to submit a fingerprint of the Prime_Minister of the United Kingdom and the Secretary of State for the Home Department. Details with proper posters are available at www.privacyinternational.org website. From the other hand. Article 29, European Union’s Working Party, has published a report, PDF file, regarding personal data protection and search engines.

“Internet Censorship: A Comparative Study” is available at www.globalintegrity.org website. I also suggest you to visit the website of Wikileaks project.

The subject of this post is my little suggestion for all lobbyists of the music industry. I decided to write about that after I read the article available at www.torrentfreak.com website about the idea of blocking the Internet for users who download “pirated” files. There is also an article available at www.arstechnica.com website about what happend in Denmark when they used “analogous ban” on the Pirate Bay.

The U.S. Court of Appeals for The Nninth Circuit held in its judgement in the case United States v. Forrester, 2007 U.S. App. LEXIS 16147 (9th Cir. 2007), that Dennis Louis Alba’s (co-defendant) e-mail and Internet activity did not constitute as Fourth Amendment’s search. The court ruled that even if the government’s computer surveillance went beyond the scope of former 18 U.S.C.S. §§ 3121-27 (as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Oct. 26, 2001, P.L. 107-56, Title II, § 216(a), 115 Stat. 288.), he was not entitled to suppression of evidence.

Please bear in mind that U.S. courts strictly follow the rule of fruit of the poisonous tree, that generally speaking prohibits the use of derivatives of illegal evidence in a court against a defendant. It originates from a judgement in the case Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

Well, no wonder that such case has spawned a lot of positive and negative comments issued by the American academia. Professor Shaun Martin voiced a forcible disagreement with Judge Raymond C. Fisher who wrote the opinion. However, professor Orin Kerr was not suprised by such findings and clearly showed in his article available at www.volokh.com website that there was no other option.

As usually, you will find more comments and links at www.slashdot.org. I think that a really good punchline to Mr. Alba’s reproaches was written in the article at wwwarstechnica.com website

In any event, readers interested in building a $10 million per month drug lab in the backyard should be aware that the government can get a list of all the phone numbers you call, the IP addresses you visit, and the people you e-mail.

I wrote about those issues before in a post titled Legal hacking, where I also briefly mentioned the case United States v. Heckenkamp, 2007 U.S. App. LEXIS 7806 (9th Cir. 2007), PDF file.

If someone is interested in Orin Kerr’s controversial (or not) statements then I recommend you to read for instance O. Kerr, “The Future of Internet Surveillance Law: A Symposium to Discuss Internet Surveillance, Privacy and the USA PATRIOT Act: Surveillance Law: Reshaping the Framework: A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It”, 72 GEO. WASH. L. REV. 1208 (Aug. 2004).

I must admit that when I see legislators’ inclinations to monitor and spy on citizens and a susceptibility of many businesses who produce and distribute software designed to protect computers users against methods such as keystroke logging or rootkit (as an example just check a fresh article posted at www.news.com website), I momentally recall myself Judge Stanley Sporkin’s opinion issued in the case McVeigh v. Cohen, 983 F. Supp. 215 (D.D.C. 1998) at 220.

In these days of “big brother,” where through technology and otherwise the privacy interests of individuals from all walks of life are being ignored or marginalized, it is imperative that statutes explicitly protecting these rights be strictly observed.

I recommend you to read a judgement in the case United States v. Scarfo, 180 F. Supp. 2d 572 (D.N.J. 2001), in which Nicodemo S. Scarfo questioned the use of keylogger software by the FBI, althogh its agents had search warrants.

The National Legal and Policy Center organization has published at www.nlpc.org website a short article in which it presents a study about movies uploaded and available in Google Video that were put there without a consent or a license agreement obtained from copyright holders. Even if the NLPC does not say that, and I do not want to speculate, I just wondered for a second if this research was somehow sponsored by Viacom. I recommend to check Viacom v. Youtube, 2007 U.S. Dist. Ct. Pleadings 2103 (U.S. Dist. Ct. Pleadings 2007) to all readers interested in this dispute. Anyway, in my humble opinion, there is a key question in the NLPC article. Namely:

After all, if an ethics watchdog group with a limited budget can find scores of copyrighted productions, why can’t Google?

I am not a legal adviser of the National Legal and Policy Center but I can disclose them the answer to their simply question. Well, because it does not have to! Why? The explanation is provided in the Online Copyright Infringement Liability Limitation Act, title II of the Digital Millennium Copyright Act, Pub. L. 105-304, 112 Stat. 2860, 2877 (Oct. 28, 1998), PDF file. Provisions of §512(a)(1-5) and §512(c)(1)(A-C) clearly state exclusions afforded for the potential ISP’s liability in case of such situations as described by the NLPC and also very precisely advice what steps should be taken by a copyright holder to remove contested materials.

What is more interesting, a similiar regulation being in force in The European Union, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (’Directive on electronic commerce’), Official Journal L 178 , 17/07/2000 P. 0001 - 0016, in its article 15 clearly provides:

No general obligation to monitor

1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

I have nothing more to add. At least it was free advice right?

I recommend you to watch a lecture given by professor Lawrence Lessig on 23C3 conference in Berlin.

I admit that in my opinion the best part is at the end of this quite interesting speech. I mean a comment, polemic issued by John Perry Barlow. The title of this post is inspired by what he said. I hope that I won’t be put on any “list” by the United States Department of Homeland Security and they let me travel to the USA without any abstacles. ;)

Two american states supreme courts gave very interesting judgements. The California Supreme Court ruled on Monday in the case Stephen J. Barrett et al., Plaintiffs and Appellants, v. Ilena Rosenthal, 2006 Cal. LEXIS 13529, PDF file, that a person (legal or private) who operates a web sites that publish inflammatory information written by other parties cannot be sued for libel. You will find more details in the judgement of course (I provide a link above) or a little bit longer summary in the article at www.cnn.com website.
However the Florida Supreme Court ruled that two state acts designed to crack down on sexual predators who use the Internet to prey on children do not violate constitutional rights of free speech and interstate commerce. The judgement in the case Simmons v. Florida, 2006 Fla. LEXIS 2684, PDF file. A short summary is available in the article at www.firstamendmentcenter.org website.

Check www.digitalfreedom.org website and support this action as much as you can. Other interesting facts, check www.twit.tv website and listen to the podcast titled this WEEK in LAW, with Denise Howell, Cathy Kirkman, Ernie Svenson. With the special apperance of John Palfrey.

The U.S. District Court for the Northern District of California ruled in the case National Federation of the Blind v. Target Corp., 2006 U.S. Dist. LEXIS 63591, PDF file, that a retailer may be sued if it is breaking The Americans with Disabilities Act (Public Law 101-336, U.S. Statutes at Large, 104 Stat. 327 on July 27, 1990). The suit may be filled if a website is inaccessible to the blind people. The crucial case mentioned above concerned Target Corp. website of course. More details and some short comments in the information at www.businesswire.com website. At last some good news from the US jurisdiction in this field. More about web accessibility initiative and all this stuff at www.w3.org website. It is not so expensive to put into practice such solutions. It is also worth noting that those standards are open. All public institutions should follow them without buying any prorietary and imcompatibile technologies. But those are important issues for a pithy and specific scientific essay/article and not for a blog post.

I need a real life hacker skills to hack into this kind of system. “DRMs” are nothing comparing to such protection. This subject is inspired by a picture in the article at www.news.com website. Seriously C|Net is presenting a realy good report from this year’s DEFCON and asan extra you may find there a lot of materials about issues connected with Net Neutrality, what’s more important not only in the USA. All stuff is available at www.news.com website. Very good collection of links. I recommend you reading about Dan Kaminsky’s initiative. The Net is hard “matter” to regulate by a legislator. I respect all individuals and groups of individuals’ movements in the axiology of so called “Internet law”. This is the place where law begins its “existence” and from this point one should think about creating positive law.

Judge Walker issued an order denying the US Government and AT&T’s motions to dismiss the EFF’s case. All details about this case are available at www.eff.org website. Speaking the truth I just needed a pretext to test Wordpress possibilities. So I post a direct link to a recording from the Electronic Frontier Foundation’s press conference.

It all looks like this MP3 file on the EFF’s website is not well prepared for streaming purposes (eventually this may be caused by the Wordpress plugin). Anyway you can download it, save, open and listen without any problems.