Youku Tudou & The State Of Online Copyright Infringement

iStock_000014793623XSmallCopyright infringement here; copyright infringement there; copyright infringement everywhere! But fear not 20th century hold-outs, for the U.S.A.’s very own Motion Picture Association of America is at the vanguard of another international intellectual property war. That’s right folks, the MPAA and a handful of media companies joined forces to fight the mighty Baidu – one of China’s largest Internet companies valued at $45.7 billion. And last week, in David and Goliath fashion, the posse of analogues won a judgment against Baidu for…..drum roll…….$78,560. The plaintiffs had asked for $10 million. (Cue The Price Is Right loser “whomp, wah”.)

How does the saying go? Something like: Baidu probably wipes its @$$ with $78,560? Brass tax: If a proverbial slap on the wrist continues to be the outcome of costly, high-profile intellectual property lawsuits (a court-clogging waste), then why is nearly every nation cowering when it comes to creating copyright laws for the 21st century?

Now, before people get their knickers askew, let’s make two things clear before moving forward:

  1. I am not advocating for the proliferation of copyright infringement. The law is the law.
  2. I am not advocating for copyright trolling. It’s an unethical abuse of the law and courts.

So what am I saying? It is time to stop fighting online copyright infringement with old fashioned rules. It is time to start drafting and passing some smart Internet laws for the dominant digital marketplace.

Posse of Media Companies On The Hunt For Chinese Copyright Infringers

They’ve dubbed Baidu (think platform mashup of Google, Wikipedia and YouTube) the “top enabler of video piracy in China,” so in a show of solidarity YT, Sohu Video, Tencent Video, LeTV, MPAA, CODA, Wanda Films, English Media and LeTV Films banded together to take on Baidu and another Internet company, QVOD. The conglomerate, collectively, has launched about 100 legal actions, asking for a total of $49 million in damages.

Youku Tudou and Baidu

Youku Tudou is similar to Hulu and Netflix. It is an online video portal that pays to license television shows and movies. Youku Tudou is going balls out against Baidu because Baidu allegedly is making money off of 18 shows to which Youku Tudou has the exclusive rights. And lest you think it simply a matter of linking to videos, the plaintiffs insist Baidu is indeed hosting the material and profiting via its advertising program, Baidu Tuiguang (i.e., Google Adwords), as a result.

A Youku Tudou Spokesperson pleaded, “We call on Baidu to respect copyright and help build a virtuous online video ecosystem in China.”

Whenever asked for comments, Baidu keeps reminding: “We are willing to work with all parties and build a benign cooperation format that benefits internet users and the industry,” often adding that the company has reached agreements with other video content providers, and that they “continue to contribute in creating a benign Internet environment.”

Why Are U.S. Groups Getting Involved in This Case?

Apparently eager to attract Tinsel Town backing for the copyright crusaders’ endeavor, Sohu Chairman Charles Zhang, warned, “For American companies, many millions worth of content id being stolen…if this continues, they will never have a chance to make money in the china market.”

But he need not flail his hands too furiously, as Hollywood already has a sharp eye on the Chinese market. After all, not only is it the land of abundant piracy, but it also the largest Internet market in the world with approximately 591 million users. To give you an idea, that more than the total populations of the US, Canada and Mexico combined. By 2014? The Chinese mobile market is expected to reach 648 million. So you better believe state-side entertainment outlets are on top of it.

Online Copyright Infringement Question: Can You Blog About Something Before It Airs In Your Time Zone?

copyright-lawyerFor the most part, the Manti Te’O girlfriend scandal is long-forgotten fodder. But Dr. Phil McGraw’s people don’t want to let the scandal slide. The pop-psychology pioneer is suing Gawker Media for allegedly spoiling his two-part interview with Ronaiah Tuiasosopo – the mastermind behind the Te’O prank. To clarify, Dr. Phil, the man, is not suing Gawker; instead, Peteski Productions, the company that owns the Dr. Phil Show’s copyrights, is the plaintiff in this high-profile online copyright infringement case.

Specifically, the plaintiffs are arguing Gawker posted the outcome of a “cliffhanger” interview before the show aired in most markets. At first glance, this case seems straightforward: Dr. Phil’s team worked to produce a high quality interview; they also maintained the infrastructure needed to  distribute the finished product; then Gawker came along and posted the outcome of the interview before Dr. Phil aired in most regions; as a result, the ratings for the show plummeted, causing financial loss for the program.

Game,  set, match Dr. Phil, right? Not so fast.

Here’s the thing: It’s 2013. Besides a few minor disappointments in hover craft and replicator technology, we’re basically living la vida Jetson. We can video chat with people on the other side of the globe in real time, robots named Roomba handle the vacuuming, heck, even Marty McFly’s shoes headlined an auction last year!

All this technological advancement has helped create a new communication and media model – one that involves the entire globe; people are no longer tethered to their 7:00 p.m. nightly news. Now, once something airs in another continent, it’s usually hitting the Web within minutes. Our new media model is why NBC caught so much flack for their 2012 Olympic coverage – by the time the prime time viewing came around, viewers were spoiled. Should the US-based blogs, which reported the standings before NBC aired the footage, be sued for copyright infringement?

Let’s consider this instant communication model as it relates to the Dr. Phil v. Deadspin lawsuit. Since Dr. Phil’s interview seems to have aired in at least one overseas market before it found its way online, should Deadspin be held liable for intellectual property infringement? Moreover, since Deadspin was the media outlet that originally broke the Manti Te’o story, should they have free reign to report on aspects of the story as soon as they get it?

The Facts Of The Case

On January 31, the Dr. Phil show featured the first part of an interview with notorious trickster, Ronaiah Tuiasosopo – the mastermind behind the Manti Te’O hoax. At the end of the episode, Dr. Phil urged Ronaiah to demonstrate the female voice used to trick his friend. At first, Ronaiah declined. At the end of the episode, however, the cliffhanger teaser was “would Ron perform his voice on the second part of the interview,” which would be airing the following day. The next day, the second half of the interview aired in its first market – a market  presumably outside of the United States. It is likely that at that point, Deadspin posted the “cliffhanger clip” on their website. As the plaintiff explained in the complaint: “[Deadspin posted the story] no later than 9:30 a.m. Eastern Standard Time, hours before the Dr. Phil show aired over 98% of its viewers.”

The 98% figure is what’s interesting.

Peteski Productions, on behalf of the Dr. Phil Show, also allege Deadspin’s post negatively affected ratings for the second half of the interview. Attorneys for the plaintiffs explained, “Gawker received substantial benefits from its infringement, but Peteski received nothing…Gawker deliberately set out to get ‘the jump’ on the rest of the country and ‘scoop’ Dr. Phil with his own content. They did not earn that right, they stole it. They did not conduct the interview, they stole it.” Lawyers for the plaintiffs also allege that Deadspin posted the material as part of a “premeditated plan to steal Peteski’s copyright.”

The Question Of ‘Exclusivity’ In The Content is King Internet Age

On its face, and from a purely theoretical standpoint, this online intellectual property case seems straightforward. But it’s not, because Timothy Burke and Jack Dickey of Deadspin were the first to break the Manti Te’o scandal story. In fact, Dr. Phil may never have known about the hoax if Deadspin wasn’t on the case.

In some ways, you could argue (again, from a purely theoretical standpoint) that Dr. Phil tried to profit off the work of Gawker Media. When interviewed about the situation, Gawker editor, A.J. Davlerio called the material “exclusive.” In explaining what he meant by “exclusive,” Davlerio said stories that are “generated here and only here despite our dubious reputation as content remoras.”

At first listen, Davlerio’s statement sounds out-of-touch. When you think about it, though, in our Internet Age, all media outlets are co-dependent. Tenacious bloggers are often the ones to break stories, which are  vetted and claimed by big box media. After that, talk show hosts, like Dr. Phil, deconstruct the most salacious – and often most entertaining — aspects. With a media ecosystem like this, who  is the “owner” of perceived copyrights these days?

Dr. Phil v. Gawker raises a 21st century online copyright law question: Are bloggers and smaller online media outlets at the legal mercy of big-money media – even when the online outlets “break” a story? Much less, should “big-box” media be allowed to cry foul when online journalists – who regularly track the world-stage in real time – report on stories the moment they become public – anywhere in the world. And in this instance, is it fair to say that Gawker really “scooped” the Dr. Phil Show? After all, even the lawyers for Dr. Phil indirectly said 2% of Dr. Phil viewers got to see the interview before Deadspin posted the outcome.

The way the lawsuit is worded, it sounds like the Dr. Phil show in question aired somewhere before it was on Deadspin. After all, they specifically used “98%” in the claim – not 100%.  So, let’s pretend a cable station in the UK carries the Doctor Phil show and it airs at 2:00pm Greenwich Mean Time, which is 9:00 a.m. eastern standard time. Should a US-based website be able to argue that all is fair in the content wars once any type of news breaks anywhere in the world?

It’s a murky theoretical line. What do you think? Have your say below.

Tesla Motor’s Defamation Saga

Tesla defamation
Tesla Motors is the hot new electric car company that seems to be dealing with some defamation issues. How should the car company respond?

In certain circles, Tesla Motors is the new darling of the automotive industry – and those circles don’t take kindly when detractors trash their “Great Battery Hope.” So when New York Times reporter, John Broder, penned and published a less than flattering column about a Tesla Model S test drive, the blogosphere perked up and chimed in. Who was right? Would Tesla sue the NTY for defamation even though a UK court recently ruled against them? Below is the whole story.

Elon Musk is part Steve Jobs, part Sir Richard Branson and part Henry Ford. Evidence: back in the day, the 21st century Renaissance Man started the now ubiquitous online payment processor, Pay Pal. He’s also the brains behind the Jetson-esque travel venture, SpaceX.  But today, Musk is best known as a leading luminary in the electric car industry. His company, Tesla Motors, is now one of the most profitable electronic car companies in the United States – and it ain’t doing badly abroad either.

Musk’s impressive forward-thinking entrepreneurial skills have put him in the category of Jobs, Branson and Ford. And like his fellow T1 business brethren, an arguably unctuous cult has grown up around Musk. To put it bluntly, Tesla’s website feels like an online meeting group for people who hand out free copies of  ‘Who Killed the Electric Car.’ (And hey, more power to ’em.)

So when a New York Times journalist wrote a biting review of a Tesla Model S, the proverbial quinoa hit the solar-powered windmill.

Several days after Broder’s article appeared in the New York Times, Musk had a rebuttal up on Tesla’s website. In a cautious, yet strongly worded, analysis, Musk addressed every negative point in Broder’s article using data pulled from the vehicle’s data log, which he said the company started keeping track of after its defamation lawsuit against British television show, Top Gear.

Within a few days, the issue garnered international attention. Broder responded to Musk’s claims – and even a third New York Times reporter got involved, in an effort to act as an objective third party investigating the claims made by both her colleague, Broder, and Tesla’s top executive, Musk.

Since the competing versions hit the wires, the question on everybody’s mind has been: Is Tesla going to enter the libel litigation ring, once again, but this time with the New York Times?

Let’s take a look at the Tesla criticism saga from the beginning.

Top Gear Incident

In 2008, a Tesla Roadster was featured on the humorous and popular BBC program, Top Gear. Top Gear, being the satirical show that it is, took a few pot shots at the battery-powered vehicle. Specifically, the show depicted the car running out of juice on the track. At the end of the segment, host Jeremy Clarkson opined, “Although Tesla says it will do 200 miles we have worked out that on our track it will run out after just 55 miles and it if does run out, it is not a quick job to charge it up again.”

Despite the jab, Clarkson and crew praised the Roadster’s acceleration. Nevertheless, Musk declared the show’s performance, “completely false” and Tesla promptly filed a defamation lawsuit against the BBC in UK court. And who could blame them. After all, British libel laws are a whole lot more plaintiff-friendly than their U.S. counterparts, and the veracity of a Tesla battery is, foundationally, the metaphorical oil that greases the company’s success. More than that, Musk claims to have seen a copy of the Top Gear script for the episode before the test drive even happened. He insists it already included the bit about the battery dying.

Result Of The UK Defamation Suit: Advantage BBC

Despite the UK’s claimant-friendly libel laws, a judge ruled in favor of the BBC. Then an appeal’s court affirmed the lower court’s decision. British judicial officials reasoned that the average person would not have “reasonably compared” the Roadster’s performance on the Top Gear track to the car’s real-life capabilities. Specifically, the ruling judge explained that the material under review was “not capable of being defamatory at all, or, if it is, it is not capable of being a sufficiently serious defamatory meaning to constitute a real and substantial tort.”

Next Up: Broder’s ‘Stalled Out On Tesla’s Electric Highway’

Just when Tesla thought their defamation battles were over, on February 8, 2013, the New York Times published an article written by John Broder, an auto journalist.  The article entitled “Stalled Out On Tesla’s Electric Highway” chronicled Broder’s trip, in a Tesla Model S – a car which the company claims has a 265-mile charge range — from Washington, DC to Boston, MA.

Tesla facilitated the test drive. Their hope was that Broder would have a problem free journey on the mid-Atlantic section of Interstate 95 where new “ultrafast” charging stations have recently been added in Newark, DE and Milford, CT.

Tesla’s hopes of a positive review, however, were not to be fulfilled. While Broder penned a paucity of praise for the electronic car, his missive was mainly littered with complaints. After a fairly uneventful first half of the trip, Broder claims problems began. He reported:

  1. After noticing the battery charge diminishing rapidly, Broder said he followed Tesla’s “range maximization guide,” turned the climate control to low, set up camp in the far-right lane, and activated cruise control at 54mph.
  2. Not noticing any improvement, Broder reports to have called Tesla to ask for help. He said the customer service representative instructed him to turn off cruise control.
  3. Broder reported that after several more “cold, slow miles” the dashboard indicator said it was shutting off the heater and ordered, in red letters, to “recharge now!”
  4. He kept going and lamented that “[he] drove a state-of-the-art electric vehicle past a lot of gas stations…[and]…wasn’t smiling.”
  5. Broder claimed to have “limped along” the Interstate at 45mph for many miles.

Ultimately, Broder’s article climaxed with the Model S being loaded on to a flatbed truck because it allegedly could not reach the next charge station in Milford. The column concluded with the car being dropped off at a Tesla dealership in Manhattan.

A Most Peculiar Test Drive

Needless to say, Elon Musk and the Tesla fan club did not take kindly to Broder’s account. Several days after “Stalled Out” hit the wires, Musk posted a response on the Tesla blog. In an eloquent – yet tendentious – reply, Musk touched on all of Broder’s complaints.

Seemingly in an effort to combat Broder’s insinuation that the Model S does not perform well in cold temperatures, Musk also pointed out the popularity of Tesla in colder countries, like Norway. Specifically, he reminded readers, “about half of all Tesla Roadster and Model S customers drive in temperatures well below freezing in the winter.”

The consummate professional, in his reply, Musk was sure not to disparage journalists as a whole, offering, “While the vast majority of journalists are honest, some believe the facts shouldn’t get in the way of a salacious story.” He was also sure to mention Broder’s past work, and concluded the journalist had an “outright disdain for electric cars”

Unbeknownst to Broder, the Model S he drove was being monitored via the cars “feedback” system. In his blog post, Musk explained that after the Top Gear incident, Tesla always “carefully data log media drives” in the event they need to rebut any unfairly unflattering reviews.

And with that, Musk refuted each of Broder’s reported negative experiences, using data from the drive logs. Point-by-point he deconstructed Broder’s accusations against the car’s empirical data and explained why, in the company’s opinion, “Stalled Out” “does not factually represent Tesla technology.” Musk averred that according to the data:

  1. The battery never ran out of energy.
  2. Broder didn’t follow advice from the Tesla customer service agent, whom Musk says told him not to disconnect the charge cable when range displayed 32 miles.
  3. Broder’s mileage accounts in “Stalled Out” did not jive with the car data.
  4. Broder drove past a public charge station even though the car warned him he was low.
  5. Broder never set cruise control to 54, and drove between 65-81mph when he said he was travelling at 54mph.
  6. The average cabin temperature was 72, not 45.
  7. Broder turned the temperature up from 72 to 74, and didn’t turn down like he reported.
  8. The battery was not charged to full capacity at various charging stations along the route.
  9. Broder took an unplanned detour in Manhattan.
  10. Broder drove in circles “for over a half mile in a tiny 100-space parking lot.”

Musk also spent some time talking about possible improper use of the car’s supercharger capabilities, which are recommended for long drives. At the end of the rebuttal, Musk called on the New York Times to investigate the “journalistic integrity” of Broder’s article.

Public Response

The die was cast. Journalists and bloggers on both sides of the pond had both sides of the story – and people got down to the business of analyzing both. Within a few hours, the public was spewing their opinion online. Sides were chosen, and folks waited to see if Tesla would sue the New York Times for defamation.

Both Wired.com and The Atlantic Wire posted articles the day after Musk’s refutation.  Both punched holes in Tesla’s data analysis and ultimately concluded that while Musk wasn’t lying about what the logs revealed, he also conveniently left out information that didn’t support his argument.

In a show of proper journalism, the New York Times took Musk up on his urging. One of the paper’s reporters, Margaret Sullivan, hopped on the case. After investigating, Sullivan concluded the fault fell equally on both Broder and Musk – the former for not using good judgment during the test drive, and the latter for not being 100% transparent with the data analysis.

A Question Of Defamation

After the dust settled, the prevailing consensus was that both sides were to blame. But there is no denying that the controversy didn’t give Tesla some promotion. And to belabor the old saying, any publicity is good publicity. So the question remains: will Tesla opt to file a defamation lawsuit against Broder and the New York Times? If not because they think they could win, but because it would keep the company’s name in the press.

If Musk and company decided to go through with a libel suit, they’d be the underdog. For starters, the United States – thanks in large part to the First Amendment – has the most defendant-friendly libel laws in the world. Secondly, the car company would most likely have to reveal a whole lot of trade secrets.

But perhaps the largest hurdle they’d have to jump to land in the winner’s circle would be “actual malice.” In a defamation lawsuit between Tesla and the New York Times, the Plaintiffs would probably have to prove actual malice – meaning they’d have to submit convincing evidence that Broder purposefully bungled the Test Drive – and or lied about his experience – to harm Tesla. Now, if Tesla can somehow prove that the data log conclusively proves that Broder acted in bad faith, they may have a shot.

What do you think? Based on your knowledge of the case, do you think Tesla has a shot at winning a defamation lawsuit against the New York Times? If you think they don’t, is a defamation lawsuit – which plays out in the press — a way to increase publicity for the up-and-coming car company?

Aaron’s Law: A Necessary Change to the CFAA

Sadly, Aaron Swartz recently took his own life. An oppressive federal lawsuit, over a victim-less crime, is thought to be the true impetus for his death. If Swartz had lost the suit, it would’ve meant a multi-decade prison sentence for the computer genius.

To ensure nobody else in Aaron’s position feels forced to make the same ultimate sacrifice, Rep. Zoe Lofgren wants to change the law. The congresswoman from California introduced Aaron’s Law, an amendment to the Computer Fraud and Abuse Act.

Aaron’s Story: Genius with a Yen for Information

Ever used an RSS feed? You can thank Aaron Swartz for that. As a teenager, when peers were hanging out at the mall, he was helping to create RSS specifications. He was also one of the big brains credited with getting Reddit.com off the ground.

Aaron got into some trouble with the government, though. Without rehashing the long and technical story, suffice it to say that he set up a computer, which was used to download a whole lot of data from the M.I.T. JSTOR database. Even though the university declined to prosecute, the government decided to bring him up on wire and computer fraud charges anyway. The Feds wanted to use Aaron as an example of what could happen if you hack or crack networks. Perhaps law enforcement officials were frustrated about their inability to pin down Julian Assange and decided to go after a guy with far fewer resources (and far less sinister goals). Whatever the case, the ordeal was distressing.

A David v. Goliath legal showdown; Aaron represented himself against an army of federal attorneys; he wasn’t successful like David and potentially faced 35 years behind bars. Instead of going to jail, he decided to take his own life.

Zoe Lofgren’s Proposal: Aaron’s Law

Aaron’s death pierced the tech community’s collective soul. Few people doubted that the Digital Age had lost one of its most creative – albeit melancholy – minds. Perhaps as a means to cope and honor Aaron’s significant contribution to our times, his passing reawakened a movement to amend outdated Internet law regulations that call for “outlandishly severe penalties” in victim-less online intellectual property cases.

As a tasteful homage to Swartz, Lofgren introduced a bill on Reddit – a bill that Lofgren explained was written with the intention of preventing “what happened to Aaron from happening to other Internet users.” She also explained that a “simple way to correct this dangerous legal interpretation is to change the CFAA and the wire fraud statutes to exclude terms of service violations.”

Lofgren’s proposal does exactly what Harvard law professor Laurence Lessig has been touting for a while – it prevents “’crimes’ that are nothing more than a breach of contract” from being prosecutable under the Computer Fraud and Abuse Act. Specifically, Lofgren’s law would annotate the CFAA’s definition of “authorized access” to:

“[Unauthorized access] does not include access in violation of an agreement or contractual obligation, such as an acceptable use policy or terms of service agreement, with an Internet service provider, Internet website, or employer.”

About The Computer Fraud And Abuse Act

The Computer Fraud and Abuse Act (18 USC 1030) passed in 1984 as a way to prosecute high-level computer cracking and espionage. The law was updated in 1988, 1994, 1996, 2001, 2002 and 2008.  As of 2012, the CFAA has been used to combat foreign cybercrimes, computer espionage, computer trespassing, computer fraud, password trafficking and malicious virus spreading. A felony offense, first time offenders convicted under the CFAA can be thrown in jail for 5 years per charge. Defendants convicted twice can receive double the sentence. Currently, the act’s only limitation is monetary in that the action in question must involve a direct cost greater than $5,000.

Since some of the information that lands on “hacktivist” sites is obtained by cracking and hacking, in recent years the government has attempted to make the CFAA stricter as a way to shut down sites like Wikileaks. Department of Justice Computer Crime Chief Richard Downing claims it will be impossible “to deter serious insider threats through prosecution” if the CFAA is not made stricter.

Prediction: Who Will Be For Aaron’s Law & Who Will Be Against It?

Now that Lofgren’s bill is on the table, representatives will review the language and get down to the business of “yay-ing” or “nay-ing.” Expect push-back from law enforcement agencies and groups that have an interest in mitigating piracy (think RIAA, MPAA and the politicians on their side). The same communities that organized against SOPA, in addition to constitutional advocates on the lookout for statutes with unreasonable punishments, will probably support Lofgren’s proposal.

Kelly / Warner deals with cases involving Internet law matters. If you need to speak with an attorney well-versed in online regulations, feel free to contact us anytime.

Sources:
Lee, Timothy B. ‘“Aaron’s law,” Congressional investigation in wake of Swartz suicide.’ Arstechnica.com. January 16, 2013. Date Accessed: January 29, 2013. <http://arstechnica.com/tech-policy/2013/01/aarons-law-congressional-investigation-in-wake-of-swartz-suicide/>

Choney, Suzanne. “‘Aaron’s Law’ to honor Internet activist, redefine computer fraud.” NBCNews.com. January 17, 2013. date Accessed: January 29, 2013. <http://www.nbcnews.com/technology/technolog/aarons-law-honor-internet-activist-redefine-computer-fraud-1B8005442>

An Illegal Downloading Lawsuit May Be Headed To 1 First Street

Will 2013 be the year that the Supreme Court of the United States accepts an illegal music downloading case? If K.A.D. Camara has anything to say about it, then “yes,” it will be. For about five years, K.A.D. Camara has represented Jammie Thomas-Rasset, a music “pirate” sued by the Recording Industry Association of America for illegally obtaining – via the Internet – 24 songs. After years of litigation, Camara filed a writ of certiorari, with hopes that the highest court in the land will debate and decide on whether or not the financial awards handed down in illegal downloading lawsuits are commensurate with the crime.

A Summary of Jammie Thomas-Rasset’s Long Legal Tale of Woe

This Internet law legal battle started in the mid-2000s. Back then, the RIAA launched a dragnet-type assault on individuals who were caught downloading music from file sharing websites. Most people settled out of court for a few thousand dollars, but Jammie held out. In 2007, she was sued in a Minnesota district court. Jammie lost and was ordered to pay $220,000 (which works out to $9,250 per song).

Litigation continued, appeals were filed, and after two retrials, the amount Thomas-Rasset owed climbed to $1.5 million. After a third hearing, the amount was lowered to $54,000. The presiding judge felt the eye-popping $1,500,000 was “so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable.” But the U.S. Court of Appeals Eighth Circuit disagreed and reinstated the $222,000 damage award.

Now, Jammie and her counsel are lobbying the Supreme Court to consider her case.

Why Thomas-Rasset’s Lawsuit May Be of Interest to SCOTUS

Other illegal downloading cases have been pitched and turned down by the justices, but some feel this may be the one that gets waved in. Since there was so much conflict over Jammie’s situation in the lower courts, the case is attractive. More than that, since it involves a central Internet law issue of our time, the impetus for handing down a decision is more immediate than in times past. Specifically, in the writ of certiorari, Thomas-Rasset’s attorney argued the timely validity of this case by reasoning that the “fundamental unfairness of the RIAA’s extortionate litigation campaign, and because of the importance of statutory damages to the many American industries governed by copyright including not only recording and publishing, but also software.” Camara also argued that the $220,000 doesn’t “bear a reasonable relationships to the actual injury inflicted on the plaintiff by the defendant.” After all, if Thomas-Rasset bought the 24 songs in question, she would have forked over only $24.

Are The Laws Too Tough On Illegal Downloaders?

Most reasonable people can agree that downloading songs illegally is wrong; but does the punishment fit the crime? As a country, are we OK with bankrupting average citizens who, usually in their rebellious youth, obtain a few songs using the “latest and greatest” technology? Fifty years ago, did we ruin the lives of thousands of kids who tried to lift a Mars Bar from the corner store?

Now, please don’t get me wrong. I strongly believe that all artists should be paid for their work; there’s no question about that. But we should also start asking whether or not the artists are really the ones benefiting in these high-priced piracy lawsuits — does the money really go to them or label executives and lawyers? We should be asking if it’s ethical to bury people in perpetual debt over downloading the latest #1 song that’s on a the radio 24/7? Heck, how different is it than making a mix-tape on your stereo back in the day?

If the SCOTUS accepts the Thomas-Rasset tech case, we may finally have definitive answers to what the lawmakers think about those questions.

(Oh, and if you need a lawyer who knows a whole lot about illegal downloading, hit me up here.)

The iPad Data Security Lawsuit — What’s Next?

On June 9th, 2010, Gawker.com ran a story about Andrew Auernheimer (a.k.a., weev) and Daniel Spitler (a.k.a., JacksonBrown), two hackers from the Goatse Security team (GoatSec). Five weeks after Apple’s 3G-enabled iPad was released, Auernheimer and Spitler uncovered a gaping security hole, singular to the 3-G hardware, which exposed personally identifiable information of AT&T customers.

Last week, one of the bug hunters was convicted on one count of conspiring to access a computer without authorization – a violation of the Computer Fraud and Abuse Act (CFAA) — and one count of fraud. To add insult to injury, his former hacking partner helped the prosecution. Auernheimer is appealing, which means this suit could eventually land in the hands of the Supreme Court.

Below is the story behind the lawsuit that could further solidify legal precedence regarding the Computer Fraud & Abuse Act.

The iPad Security Incident

Hackers have been around since the Internet existed. And while their work can sometimes cause havoc, ultimately, hackers provide a necessary service – one that many would argue is vital to our national safety. After all, hackers are the guys and gals who shed light on digital security gaps, which then allows authorities to address the problem. That’s why it’s not outrageous to argue that Auernheimer and Spitler did Apple and AT&T a favor by discovering the massive security faux pas.

What was this security breech unearthed by “Weev” and “JacksonBrown”? Without getting too technical, the two realized there was a “hole” in the AT&T website code — one which was exposed when using the 3-G enabled iPad. It was so exposed that the pair didn’t have to hack into the system or crack any passwords. All they did was guess a few passwords, and voila! Auernheimer and Spitler then wrote a script and were able to harvest over 100,000 thousand names and addresses of early iPad adopters who were AT&T customers.

Being that early adopters are often those with the financial means to “be the first,” the GoatSec members got their hands on the PII of NYC Mayor Michael Bloomberg, ABC anchor Diane Sawyer, Hollywood mogul, Harvey Weinstein and former Obama chief-of-staff and current Mayor of Chicago Rahm Emanuel.

Illustrating that not all hackers are out for evil, Auernheimer and Spitler made attempts to contact the affected entities (i.e., ABC News), but were essentially ignored. Then they took their data to Gawker who jumped on the opportunity to expose the story, though they did not publish any of the private information.

As you may guess, a lawsuit against Auernheimer and Spitler soon followed. Despite the fact that neither actually hacked into anything, nor cracked any passwords, the pair was charged criminally under the Computer Fraud and Abuse Act – the argument being that they knowingly accessed a computer to which they did not have authorization.

After being charged, Spitler took a plea and agreed to help the prosecution. Auernheimer’s trial was set to begin on November 13, 2012 in a New Jersey federal court.

Why The Trial Was Of Interest To The Hacking & Internet Law Community

What made the Auernheimer hacking lawsuit so intriguing to those in the Internet community was the fact that he did not, technically, hack into anything. Instead, he simply made a few simple guesses and then used his know-how to write a script. As such, the question arose: should he be guilty of essentially finding a webpage with no links pointing to it, and then using the information found therein?

The merits of the CFAA have been hotly debated in the wake of significant technological advancement. Primarily, pundits are concerned that the vague wording of the bill harshly punishes young kids, who are essentially committing the same level crime as toilet papering someone’s house, and useful bug hunters who don’t do anything nefarious with the data they uncover.

Under the current law, anybody who accesses “a computer without authorization or exceeds authorized access from a protected computer” can be charged with a criminal offense. Moreover, any device that “affects interstate commerce with a microprocessor and a network connection” is considered a “protected computer.” As many have pointed out, that definition pretty much includes all mobile devices – clearly, the CFAA is in need of some language adjustments.

What’s Next In The Auernheimer Data Security Lawsuit?

When the trial was announced, GoatSec vowed that if “weez” lost the case, they would release information on an encrypted “insurance file.” He was convicted last week, so I suppose we can expect a big story soon. But Auernheimer announced that he plans to appeal the decision – which means this one could go all the way to the Supreme Court.

I’ll be keeping an eye on this Internet law case, as the end result has the power to significantly affect future lawsuits and the direction of cyberlaw as a whole.

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iPad Hacker Trial Tests Pre-Internet Law

Extend Certain Legal Rights To Social Robots? What’s Up With That?

Do you think IBM’s WATSON, the super-genius computer who kicked Ken Jennings’ butt on Jeopardy, should be allowed to sue if someone tries to copy the code that informs its artificial intelligence? What about your family roomba, should it be illegal to kick it around? How about DATA from Star Trek TNG, do you think that he, though technically an android, should have the right to file legal claims?

MIT researcher, Kate Darling, recently presented a study on this very subject. She explored whether or social robots should be granted the same legal protections as humans. Now, you may be thinking, “Huh?” But before your mind starts racing in one direction or another, let’s examine the high-tech-law issue from both sides.

The Fundamental Question: What’s A Robot’s Purpose?

In her work, Darling rationalizes that the intended societal purpose of social robots is the most important factor to consider in the “should social robots be allowed to litigate” debate. Today, most social robots are created and programmed to elicit an emotional response from humans. So, with that in mind, now ask yourself: Is it necessary or proper to extend rights to a social robot?

The “No Legal Rights for Social Robots” Argument

Since when do inanimate objects need protection under the law?

No matter how cute, intelligent or logical they are, robots are inanimate objects. Bottom line: Inanimate objects don’t have feelings nor the ability to empathize or reason without being programmed. Granted, a person can technically abuse a social robot by going all Nookie Thompson on it, and children will get the wrong idea about how to treat ostensibly semi-sentient entities and other people. Regardless, parents should be responsible enough to teach their children that it’s not okay to hit, kick, or dismember their social robot.

The “Yes Legal Rights for Social Robots” Argument

On the other hand, the case can be made for giving social robots specific legal rights. Just as there are laws on the books that protect animal rights, many believe that there should also be some sort of law to punish anyone who abuses or engages in cruelty toward social robots. After all, social robots are meant to bring about positive emotions in the person who has the “android.” A child watching an adult kick, hit, or smash the social robot may not understand the difference between hurting a robot and hurting another person. It’s the same as the child not understanding the difference between hurting a dog or cat, or another person.

To illustrate, think about the behavioral and interactive differences of an autistic child. One highly successful day-to-day coping tactic, endorsed by researchers and parents alike, are canine companions. Others on the autism spectrum may find other methods more helpful. Each case is different. However, if a social robot turns out to be a therapeutic companion for your child, wouldn’t it make sense to make sure your social robot was protected under law?

Social robots probably won’t receive legal rights for at least for another few decades. But if they do, expect the first legal battle to be over whether or not it should be a state or federal statute.

The Wikitravel.com v. Wikimedia Foundation Lawsuit: Forking & Other Things

I was reading the other day on Techdirt, about a war that’s a-brewing in the open source community. In one corner we have the Wikimedia Foundation; in the other, Internet Brands – the company that owns and operates Wikitravel.com. A saga involving volunteer editors, a for-profit wiki site and bombastic court filings, the Wikitravel v. Wikimedia Foundation lawsuit, believe it or not, is so intriguing it could serve as the topic for a made for TV movie.

The Wikitravel.com Tale

Back in 2003, two developers started wikitravel.com using the open-source wiki code. In 2005, Internet Brands – an umbrella company with a lot of online properties – bought the travel hub for a cool $1.7 million. Since wikitravel.com was under a creative commons sharealike license, when Internet Brands made the purchase, they technically only purchased the website and platform, but the exclusive rights to the content was not part of the package.

Not only did the Internet Brands folks not buy wikitravel.com’s article content, but, like Wikipedia, the site was primarily run by a dedicated group of volunteers. Unhappy with the way Wikitravel.com is being managed now, those volunteers are looking to break from the for-profit and create a new travel hub under the Wikimedia Foundation tent. In tech-talk, the volunteers are looking to “fork” from Wikitravel.com.

A Quick Lesson On Open-Source Forking

“Forking? Huh!?” “Forking is a term used in the open-source community when multiple versions of a source code,” which once shared a common code base, are developed in parallel and the multiple versions have “irreconcilable differences.” So, in the simple terms, forking is when there is a (usually nasty) split in a given developer community.

In the Wikitravel.com v. Wikimedia Foundation battle, the non-profit seems to be concentrating on “forking,” and the for-profit on what they consider to be unfair business practices.

The Wikitravel Wikimedia Foundation Legal Showdown

Wikitravel.com was the first to fire the gun in the legal race with the Wikimedia Foundation. After catching wind that some of the volunteers were galvanizing support for a “migration” to the Wikimedia Foundation platform, Internet Brands filed a lawsuit against James Heilman and Ryan Holliday – two highly involved wikitravel.com volunteers. IB claimed that Heilman and Holliday misrepresented themselves in an email to other wikitravel.com contributors, by referring to themselves as decision-making executives of Wikitravel.com. Specifically, the email central to Internet Brands’ lawsuit reads:

Subject Line: “Important information about Wikitravel!”

“This email is being sent to you on behalf of the Wikitravel administrators since you have put some real time and effort into working on Wikitravel. We wanted to make sure you are up to date and in the loop concerning big changes to the community that will affect the future of your work! As you may already have heard, Wikitravel’s community is looking to migrate to the Wikimedia Foundation.”

A precisely worded email if there ever was one; and a smart move too, because when it comes to the law, it’s often all about nuance. In this instance, the exact verbiage that Internet Brands seems most concerned with is “Wikitravel administrators” and “migrate.” In their filing, IB asserts that Wikitravel volunteers are not empowered to make major decisions for the company. Moreover, IB argues that the actions of Holliday and Heilman equate to unfair business tactics; they’re also alleging trademark and copyright infringement.

IB, however, may have a difficult time convincing a judge that the use of the word administrator was inappropriate. You see, the term “administrator” is regularly used in “wiki circles” (heck, in the whole open source community) for active volunteers. A judge may very well strike down Internet Brands’ claim that using that word was misleading.

But regardless of how the judge rules in the Internet Brands’ filing, a conversation about the case can’t happen without talking about Wikimedia Foundation’s counterclaim.

“Internet Brands has no lawful right to impede, disrupt or block the creation of a new travel oriented, Wikimedia Foundation-owned website,” began the non-profit’s declaratory judgment filing. The document goes on to assert that the “Wikimedia movement stands in the balance [and] the Wikimedia Foundation will not sitidly by and allow a commercial actor like Internet Brands to engage in threates and litigation to prevent the organic expression of community interest in favor of a new, non-commercial travel wiki in a misguided effort to protect its for-profit Wikitravel site.”

Do you see the discord? Internet Brands is focusing on intellectual property and unfair business practices as it relates to the named volunteers, while Wikimedia Foundation is honing in on the “forking” issue.

But maybe Wikimedia has a point in focusing on the fork. After all, Internet Brands’ claim states: “In March, the foundation began supporting efforts to recreate the Web site in its exact form. More recently, in the wake of a six-month campaign to galvanize a migration, the foundation escalated its plans by asking us to transfer this site to the foundation in exchange for nothing.”

An Internet Lawyer’s Take On The Travel Wiki Lawsuits

If you’ve made it this far, you’re probably curious enough about the lawsuit to get an Internet lawyer’s take on the matter. Well, you’re in luck!

First things first, I think it’s not the swiftest move for any online operation that relies on volunteer efforts to sue those volunteers. Etiquette aside, though, when looking at each of the parties positions, it’s difficult to say who has the stronger case.

It may come down to the tendencies of the judge ruling on the case. If they are more “in tune” with tech vernacular, there’s a chance they may rule that the e-mail in question did not explicitly state that the “admins” were working on behalf of Wikitravel.com. If that is the case, the unfair business practice argument crumbles, especially since Wikitravel operates under a cc-by-sa license.

So, in a sense, it kinda makes sense for Wikimedia to focus on the forking issue, as it may elucidate the larger picture for the presiding judge, and work in the non-profits favor, while at the same time establishing further “forking” legal precedence.

Bland v. Roberts: Free Speech And Facebook “Liking”

Below the good ole’ Mason Dixon, at the U.S. District Court, in the Old Dominion state of Virginia, an employment lawsuit ostensibly fit for a modern-day Atticus Finch was recently heard – Bland v. Roberts. The drama involves the Hampton Virginia’s Sheriff’s Department, an election, an incumbent and the firing of several employees.

While the details of the actual staffing issue are better left for a human resources attorney, the case does have Internet law implications. Specifically it addresses the question of whether or not “liking” something on Facebook qualifies as “speech” protected by the First Amendment.

Internet Law Aspects of Bland v. Roberts: The Background Information

As previously stated, many of the lawsuit’s intricacies are better left for another discussion; but to gain a better understanding of why history books may treat Bland v. Roberts as a seminal Internet law case, it’s important to lay out a few facts.

Back in 2008, B.J. Roberts was busy campaigning to retain his Sheriff’s appointment. His opponent was Jim Adams, a former Lieutenant Colonel on the force. Like most campaigns, the one between Roberts and Adams was hard fought. Accusations of improper conduct were flung (one of the most salacious being that Roberts used prisoners to set up fundraising events) and both promised to do their best for the citizens of Hampton. Like all elections, both had their supporters.

Documents allege that Roberts – after discovering several department employees were actively supporting Adams – held a meeting where he cautioned his staff to “get on the ‘long train’ with him rather than riding the ‘short train’” with his challenger.

Bland and several other staff members, however, decided to stand behind Adams. During discovery, these “rogue” staffers testified that while they actively supported Adams outside of work, they were certain to remain quiet about their political leanings on the job – a fact that arguably came back to hurt their case in the end.

While most named plaintiffs admit that they shied away from talking politics at work, they did participate in Adams’ events. One individual also indicated he interacted with Adams’ Facebook page by “liking” it. (The same individual claims to have originally posted an opinion in favor of Adams on the Facebook wall, but then decided to remove it – ostensibly to avoid any problems at work.)

Well, after the election results were in and Robert’s emerged victorious, several of the Adams-supporting Sheriff’s Department employees were summarily released of their duties. Many of these staffers filed an unlawful termination suit. In it they argued that their First Amendment rights to freedom of speech and freedom of expression were violated when Robert’s fired them.

Legal Precedence Considered In Bland v. Roberts

When deliberating, the judge looked to McVey v. Stacy – a lawsuit that set legal precedence for cases involving personnel and the First Amendment. In McVey, the Court laid out a three-pronged approach to analyzing freedom of expression when determining if a firing is lawful or not.

1) Was the Defendant speaking as a private citizen on a matter of public concern, or as an employee about a personal matter?

2) Is the statement in question of such import to the public that it outweighs the government’s interest in providing effective services?

3) Was the speech a substantial factor in the firing in question?

 

Roberts testified that the employees in question were let go due to city-wide budget cuts, poor performance and “hindrance to the harmony and efficiency of the office” and had documentation to back up his assertions, so the answer to question three in the McVey test – in Bland v. Roberts – would be “no.”

The other two points deal with whether or not the speech in question was of such import that it outweighed any civil employee considerations. This is where things get interesting from an Internet law standpoint. In this case – one of the first of its kind – the judge ruled that a mere like on a Facebook profile or wall does not constitute “speech” as defined and protected by the First Amendment.  As such, the employees’ claims that they were fired for exercising their freedom of speech become a moot point if the act of “liking” is not considered speech. In other words, the judge basically reasoned that you can’t sue someone for violating your free speech rights, if you didn’t make any “speech” or “statement” to begin with. So, the lawsuit was dismissed.

The Implications Of Declaring Facebook Likes Unprotected Speech

The decision in Bland v. Roberts could have serious online free speech implications if adopted as standard precedence. After all, today’s technological advancements go a long way in providing users ways to express themselves in as few characters as possible.

We’re a culture that has grown accustomed to the ease of clicking a check mark on a poll to make our voice heard; we type short codes to vote for our favorite competitors; heck, one of the most popular social networking platforms is based on one’s ability to convey a thought in 140 characters or less.

It will be interesting to see if this standard holds up. On the one hand it’s important that our new-fangled means of communication are taken into consideration when ruling on Internet law cases and crafting Internet law legislation; but at the same time, considering the ease with which bots can spoof “likes,” maybe it’s not a terrible idea to only protect speech that conveys a complete thought of an individual.

What do you think?

It’s All About Defame and Fortune

People are people, and boy oh boy what a mélange of misfits and mudslingers we are! Now, I thought I’ve seen it all when it comes to reality television, but never in a million years did I think I’d see the day where we could tune into a half-hour program about Internet defamation.

Many have been fell victim to online defamation. Raise your hand if that’s you. If your hand is in the air, you may be in reality-show luck, because somebody has come up with a way to capitalize on all that online defamation that’s happening.

That’s right, RealityWanted.com has reached out to victims of defamation asking for your story! With that, if you win, you’ll get an all-expense paid trip with free food to New York City where defamation and in-your-face reality are always in fashion.