LuminousVoid

SCOTUSblog has the details.

Looks like the court was concerned about stiffling innovation, and dismissive of the “look at their business model” argument of the content industry — telling them to go make an active inducement claim on that.

Also it looks like some form of Sony will survive. There was one amicus brief that wanted it overturned. Though its unclear what form it will take. An affirmative defense? A separate avenue of liability?

Justice Ruth Bader Ginsburg gave voice to a concern that seemed to be troubling a number of her colleagues, too — the proper legal standard for judging secondary infringement in the digital age. She and others several times asked the attorneys to spell out their interpretation of the Sony Betamax standard, and to articulate why they thought it might not be adequate. (The Sony standard has usually been understood as barring secondary copyright infringement if the developer has created a product that has the capacity for “substantial non-infringing uses” that were “commercially significant”.)

Ginsburg herself said the Sony decision itself was not so clear on the standard it was laying down, because of extensive discussion in that opinion beyond the formula on non-infringing uses.

I’m off to grokster arguments. Hopefully I’m not too late!

UPDATE: Oops. I was too late. I got there and there were roughly 40-50 people in line. Expectations were that 50 would get in — maybe less, I’ve heard rumors of lots of VIP’s. So there was a high risk of a cold overnite for naught.

There was a group of 3 in front of me, I put down my chair at the end and went down to look for some folks I knew in line: they were way closer. When I came back, that group of 3 was more like 15. “Oh we were parking.” Not cool.

But, it did take the uncertainty out of it. And in that way I am thankful. The risk of waiting and then not getting in was way high — now its clearer. Oh well. Karma tells me they’ll be fighting each other for the last spots.

The World Intellectual Property Organization (WIPO) has put online a searcheable database of decisions from its Uniform Domain Name Dispute Resolution Policy (UDRP). Try searching for some (in)famous marks, such as “walmart.”

They’ve also drafted an overview of the UDRP decisions. This overview highlights key questions faced by the UDRP panels. According them:

This overview is created in recognition of the need that has been expressed to identify, as much as possible, consensus among UDRP decisions, so as to maximize the consistency of the UDRP system.

It should also serve as a handy guide to researchers who would be interested in the consensus outcomes of the UDRP. For example, researchers would be interested in knowing that:

Evidence of offers to sell the domain name in settlement discussions is admissible under the UDRP, and is often used to show bad faith. This is because many cybersquatters often wait until a trademark owner launches a complaint before asking for payment and because panels are competent to decide whether settlement discussions represent a good faith effort to compromise or a bad faith effort to extort.

UPDATE ERROR.However, in American Law, under the Federal Rule of Evidence no. 408, evidence of conduct or statements made in compromise negotiations is not admissible.)

Under the Anti-Cybersquatting and Consumer Protection Act, these sorts of statements are permitted into evidence.

Another interesting feature is the ability to search by domain name. Searching for “walmart” brought me this interesting case: Wal-Mart Stores, Inc. v. Walsucks and Walmarket Puerto Rico:

Respondent has appended the term “-sucks” to domain names that are, in the absence of that term, confusingly similar to Complainant’s mark. The addition of the pejorative verb “sucks” is tantamount to creating the phrase “Wal-Mart Canada sucks” (and comparable phrases with Respondent’s other “-sucks” formative domain names)

…

In the present case, two factors . . . compel a determination that Respondent’s disputed domain names are confusingly similar to Complainant’s mark – that is, that there is a likelihood of confusion on the part of Internet users.

…

Internet users with search engine results listing Respondent’s domains are likely to be puzzled or surprised by the coupling of Complainant’s mark with the pejorative verb “sucks”. Such users, including potential customers of Complainant, are not likely to conclude that Complainant is the sponsor of the identified websites. However, it is likely (given the relative ease by which websites can be entered) that such users will choose to visit the sites, if only to satisfy their curiosity. Respondent will have accomplished his objective of diverting potential customers of Complainant to his websites by the use of domain names that are similar to Complainant’s trademark.

How they can be confusingly similar, when “users are not likely to conclude that [Walmart] is the sponsor,” I don’t know.

In the end though, it was determined that the registration was in bad faith, and it looks like with good reason.

Respondent’s claim to a “freedom of expression” interest in establishing the “walmartcanadasucks.com” and “walmartuksucks.com” websites is contradicted by his own words. A demand for payment from the potential and actual subject of critical sites is fundamentally inconsistent with the right of free expression. It is as if a newspaper were to approach the potential subject of an adverse investigative report to propose that for an appropriate fee the report could be avoided. This would not be characterized as “free speech” activity. It would rather be characterized as “extortion”.

But think of the poor, puzzled, Walmart shopper attracted to walmartsucks.com!

I previously blogged the broadcast flag oral arguments. A big issue during the argument was the standing of the parties to sue to FCC. It appears that the judges have asked for supplemental briefs on the standing issue. From speaking to some people in one of the groups, they were offering to do this, so it’s not a surprise.

My guess is the FCC will support the petitioners on the standing issue, because they want to get to the merits of the case — someone will sue eventually, and the merits will be reached. The only consideration they might have against the petitioners in the standing issue is if they don’t like the panel of three judges. From the play-by-play of the arguments, this is a real possibility. Though I don’t know if any other DC Circuit panel would be any better.

UPDATE: Here is a link to the request for standing. They have two weeks to file a brief and affidavits showing probability of harm to a member of their association.

Cory Doctorow, European Affairs Coordinator of the Electronic Frontier Foundation, has recently posted online his paper on DRM in the developing world. Digital Rights Management: A failure in the developed world, a danger to the developing world.

Cory argues that DRM systems upset copyright policies of developing countries; may harm consumer and other vulnerable interests; don’t recognize technological realities in developing countries; and don’t even work at protecting content. Cory speaks generally about DRM schemes, and about the harms on economic and cultural development that it can cause due to strong control of content by rightsowners against the accessing public. I want to add two other points about DRM that are outside the domain of the owners/accessors balance.

DRM can allow authoritarian regimes to keep tabs on their population. Some DRM allows a central location — be it a content owner, licensing group, or even a government entity to collect information about what works are accessed and passed on. This has serious privacy implications: someone tracks what we read and when. Everytime there is access, there is a transaction, and possibly a record. There is also a neat centralized source for that information: the rights-clearing mechanism.

In countries that don’t have a strong commitment to freedom of speech, this centralization could be problematic. It could facilitate censorship, such that the government can go to a single entity: the permission granter, and find a way to disable the accessibility of the entire public.

I recently came across two articles that could serve as a beginning of an exploration of the differences in how the US and the EU approach the issues of RFID privacy: FTC Asks RFID Users to Self-Regulate, and Privacy Laws: Europe Protects Against RFID Abuses.

The US approach right now is one of “self-regulation.” Which appears to mean that people who deploy RFID in a consumer setting will make their own decisions about consumer’s privacy. This could just mean that the FTC is happy with what they see happening right now, given the low deployment rates, rather than it meaning that they don’t care to ever regulate to protect consumer’s privacy.

The US approach also seems to ignore the promiscuity feature of RFID tags — that many will be able to be scanned by anyone and will respond to any scan, not just those of the manufacturer:

The agency has also concluded that many of the potential privacy issues associated with RFID are inextricably linked to database security. Companies using RFID to collect and augment personal consumer data must therefore adhere to existing FTC guidelines on implementing reasonable and appropriate measures to protect that data.

I must admit I don’t know much about what those FTC guidelines on implementing reasonable and appropriate measures to protect that data mean right now. But we can take from this that it doesn’t appear that the FTC is too concerned with people other than the deployer of the RFID tags reading them. Reading the tags and making their own data collection or other conclusions based upon the presence of the tags on a consumer or products.

The EU article didn’t address this specific point, but it does have regulators providing minimum requirements before widespread adoption by industry:

Under European law, any company that uses RFID must notify the consumer the tag is on the product and provide details on how to discard the tag and access the information held on it. The company must also disclose how any information will be collected and used.

This doesn’t address third party reading of tags (other than by giving notice to consumers of the tags and it’s information) but does go towards providing some minimum standards that companies have to follow towards alerting consumers. My guess is this will provide a good incentive for consumers to demand better regulation — whether government imposed or self imposed. Consumers on notice will be able to exert both public and market power to control the information they create and is gathered on them via RFID on consumer products.

UPDATE. Here’s another article I just ran into about the US approach: Rep. Senators Vow to Protect RFID.

A group of Republican U.S. Senators said they will work to ensure that RFID deployments stay free of regulation, according to a new policy platform that has already won the support of RFID, technology and retail organizations while drawing concern from privacy groups.

So its not just the FTC that believes in “self regulation.” It’s also the GOP technology folks, which probably means that there is no chance for any RFID regulation in this Congress.

UPDATE II. Just in time for this piece, here is a recent EPIC report: Privacy Self Regulation: A Decade of Disappointment. Citing the success of the Do-Not-Call Registry:

FTC’s success in the telemarketing field demonstrates that it can protect Americans’ privacy effectively and fairly. However, telemarketing was a 20th century problem. This report argues that it is time for the agency to move into the 21st century. It is time for the agency to apply the principles of telemarketing privacy regulation into the online world.

The Center for Democracy and Technology is filing today a complaint with the Federal Trade Commission against deceptive “100% legal” download sites. These sites claim to offer, in various ways, “100% safe” and “100% legal” music downloads for a fee of about 20-40 dollars. After signing up, they point you to freely available peer to peer software, like Kazaa or LimeWire, and give you some instructions in how to use it.

This deceives people into thinking that what they get on Kazaa is legal. In fact, what is legal is the distribution of Kazaa and the use of Kazaa to share what you have permission to share. This exposes people to lawsuits from the RIAA and MPAA and also stifles the creation of a legitimate market for music downloads.

Regardless of what one’s attitutes are about Kazaa/Grokster and filesharing software with substantial non-infringing uses, these websites are making money off of deceiving people who are trying to be in compliance with the law.

One website has already replied to a letter from the CDT.

CDT’s press release.
AP Coverage.

Here’s an SD card RFID reader. Fits right onto your Palm or Laptop. Can even write to RFID chips. Thankfully, its a thousand bucks and only has a 7cm range. So not quite consumer level, and not quite able to take advantage of ubiquitous chips.