MIRLN --- 4 - 24 March (v15.04)
Posted: March 23, 2012
(supplemented by related Tweets: http://twitter.com/vpolley #mirln)
SEC Proposes Rules To Help Prevent And Detect Identity Theft (SEC, 28 Feb 2012) - The Securities and Exchange Commission today announced a rule proposal to help protect investors from identity theft by ensuring that broker-dealers, mutual funds, and other SEC-regulated entities create programs to detect and respond appropriately to red flags. The SEC issued the proposal jointly with the Commodity Futures Trading Commission (CFTC). Section 1088 of the Dodd-Frank Act transferred authority over certain parts of the Fair Credit Reporting Act from the Federal Trade Commission (FTC) to the SEC and CFTC for entities they regulate. The proposed rules are substantially similar to rules adopted in 2007 by the FTC and other federal financial regulatory agencies that were previously required to adopt such rules. The rule proposal would require SEC-regulated entities to adopt a written identity theft program that would include reasonable policies and procedures to:
The proposed rule would include guidelines and examples of red flags to help firms administer their programs.
Legal Censorship: PayPal Makes a Habit of Deciding What Users Can Read (EFF, 29 Feb 2012) - PayPal has instituted a new policy aimed at censoring what digital denizens can and can't read, and they're doing it in a way that leaves us with little recourse to challenge their policies in court. Indie publisher Smashwords has notified contributing authors, publishers, and literary agents that they would no longer be providing a platform for certain forms of sexually explicit fiction. This comes in response to an initiative by online payment processor PayPal to deny service to online merchants selling what they deem to be obscene written content. PayPal is demonstrating, again and to our great disappointment, the dire consequences to online speech when service providers start acting like content police. Mark Coker, founder of Smashwords, described the new policy in a recent blog post. The policy would ban the selling of ebooks that contain "bestiality, rape-for-titillation, incest and underage erotica." Trying to apply these definitions to all forms of literary expression raise questions that can only have subjective answers. Would Nabokov's Lolita be removed from online stores, as it explores issues of pedophilia and consent in soaring, oft-romantic language? Will the Bible be banned for its description of incestuous relationships? This isn't the first time PayPal has tried its hand at censorship. In 2010, they cut off services to the whistleblower WikiLeaks, helping to create the financial blockade that has hamstrung the whistleblower organization. And as we explained when WikiLeaks was facing censorship from service providers: the First Amendment to the Constitution guarantees freedom of expression against government encroachment-but that doesn't help if the censorship doesn't come from the government. Free speech online is only as strong as private intermediaries are willing to let it be. Frankly, we don't think that PayPal should be using its influence to make moral judgments about what ebooks are appropriate for Smashwords readers. As Wendy Kaminer wrote in a forward to Nadine Strossen's Defending Pornography : "Speech shouldn't have to justify itself as nice, socially constructive, or inoffensive in order to be protected. Civil liberty is shaped, in part, by the belief that free expression has normative or inherent value, which means that you have a right to speak regardless of the merits of what you say."
Copyright: Lawfirms Sued for Submitting Prior Art to the USPTO (PatentlyO, 2 March 2012) - The Hoboken publishing company (John Wiley) and the non-profit American Institute of Physics have continued their quest to pursue copyright infringement charges against US patent attorneys who submit copies of journal articles to the US Patent Office during the patent application process. The submission of those documents is required by law and attorneys who fail to submit known and relevant prior art can be subject to ethics charges and the associated patents held unenforceable. Earlier this year, the US Patent Office issued a memo indicating its belief that copying and submitting copyrighted documents should be considered a non-actionable fair use. Firms already pay for access to the articles and the USPTO also has its own access to most of the articles. The issue is whether the patent applicants must pay an additional fee for making a copy for the USPTO and an additional copy for the in-house file.
Publishers Oppose Bill on Scholarly Open Access (InsideHigherEd, 6 March 2012) - A group of 81 scholarly journal publishers on Monday came out against the latest iteration of the Federal Research Public Access Act (FRPAA) -- a bill that would require federal research grantees to make their resulting academic papers freely available to the public no more than six months after publication in a scholarly journal. The bill, introduced last month in both the House and the Senate , is the third iteration of FRPAA to be introduced since 2006; two previous versions failed to make it to a vote. The Association of American Publishers (AAP) sent letters to prominent legislators in both chambers criticizing the bill for seeking to apply a "one-size-fits-all" deadline of six months before publishers, many of which charge for access to articles, must compete with a free version in a government database. In many disciplines, publishers retain the exclusive right to sell access to the peer-reviewed article for "several years before costs are recovered," according to the AAP. Among the 81 signatories to the letters was Elsevier, a major journal publisher that last month withdrew its support for (and effectively nixed) the Research Works Act -- a bill that would have preemptively killed FRPAA -- after facing a boycott from frustrated scholars.
FCC: No, You Can't Jam Your Neighbor's Cellphone (National Journal, 6 March 2012) - The Federal Communications Commission is officially reminding people that it is illegal to use cell phone jammers on other people, no matter how annoying you find their conversation on the bus. In an Enforcement Advisory released on Tuesday, FCC Enforcement Bureau Chief Michele Ellison cited recent reports of people using jammers to create "quiet zones" on public transit. "We caution consumers that it is against the law to use a cell or GPS jammer or any other type of device that blocks, jams, or interferes with authorized communications, as well as to import, advertise, sell, or ship such a device," Ellison said. "The FCC Enforcement Bureau has a zero tolerance policy in this area and will take aggressive action against violators." On Monday NBC10 in Philadelphia reported facing off with a man using a jammer to silence cellphone conversations he found rude and irritating. Complaints over loud conversations on public transit have become a symbol of the proliferation of mobile communications, but jamming technology won't offer a legal answer. The prohibition is based on language in the 1996 Communications Act and the FCC says it can fine violators more than $100,000. Officials say jammers pose a public safety risk because they can block emergency communications. The FCC Enforcement Bureau pointed to incidents where a tax adviser used a cell jammer to find peace during tax season but blocked communications at a neighboring fire department as well. In another instance, a teacher was illegally using a device to bock phones in his classroom but also jammed communications for the entire school. Still in the market for a jammer? The FCC has a nine-page list of do's and don't's.
Obama Admin Wants Warrantless Access to Cell Phone Location Data (ArsTechnica, 7 March 2012) - A Maryland court last week ruled that the government does not need a warrant to force a cell phone provider to disclose more than six months of data on the movements of one of its customers. Two defendants had been accused of armed robbery, and a key piece of evidence against them was data about the movements of the pair's cell phones. The defendants had sought to suppress this location evidence because the government did not get a warrant before seeking the data from network providers. But last Thursday, Judge Richard D. Bennett ruled that a warrant is not required to obtain cell-site location records (CSLR) from a wireless carrier. Courts all over the country have been wrestling with this question, and the government has been on something of a winning streak. While one court ruled last year that such information requests violate the Fourth Amendment, most others have reached the opposite conclusion. The Obama administration laid out its position in a legal brief last month, arguing that customers have "no privacy interest" in CSLR held by a network provider. Under a legal principle known as the "third-party doctrine," information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection. The government contends that this rule applies to cell phone location data collected by a network provider.
Old Maps Online Lets You Find Your Way Around 17th Century Holy Roman Empire (ArsTechnica, 7 March 2012) - The world's single largest online collection of historical maps launched earlier this week at Old Maps Online . By the end of the year, the site aims to have 60,000 maps available for public access. Cooperating institutions include the British Library, the National Library of Scotland, the Czech Republic's Moravian Library and the San Francisco Bay Area's David Rumsey Map Collection. [W]hat makes this project so arresting is the way the site is organized. Starting from a map of your area, you can zoom in or reorient over a basic world map, then drill down. The right column contains a changing stack of maps germane to your area. I started, for instance, in my home state of Oregon. The stack presented me with a 1901 gazette page of the "products of selected industries" in the state and a 1935 Standard Oil road map. I spun the globe and drilled down all the way to the street level at Granada, Spain, where I had an early 20th century map of eastern Spain and an 18th century map of "Hispania Benedicta," a map of the Benedictine religious order. Each historical map you click on is presented in a separate frame that you can enlarge, drawn from the contributing institution. A slider across the top allows you to dynamically change the offerings by moving from as early as 1000 CE up to 2010 (check Google Maps for anything more recent). A search box allows you to navigate by place name.
Mashups and Copyright (MLPB, 7 March 2012) - Elina Lae, University of Michigan Law School; University of Helsinki Faculty of Law, has published Mashups − A Protected Form of Appropriation Art or a Blatant Copyright Infringement?: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2003854
Court Declares Newspaper Excerpt on Online Forum is a Non-Infringing Fair Use (EFF, 10 March 2012) - [T]he federal district court in Nevada issued a declaratory judgment that makes is harder for copyright holders to file lawsuits over excerpts of material and burden online forums and their users with nuisance lawsuits. The judgment - part of the nuisance lawsuit avalanche started by copyright troll Righthaven - found that Democratic Underground did not infringe the copyright in a Las Vegas Review-Journal newspaper article when a user of the online political forum posted a five-sentence excerpt, with a link back to the newspaper's website. Judge Roger Hunt's judgment confirms that an online forum is not liable for its users' posts, even if it was not protected by the safe harbors of the Digital Millennium Copyright Act's notice and takedown provisions. The decision also clarifies that a common practice on the Internet - excerpting a few sentences and linking to interesting articles elsewhere - is a fair use , not an infringement of copyright.
Loss of Control (InsideHigherEd, 14 March 2012) - Jeff MacSwan and Kellie Rolstad, a husband-and-wife team at Arizona State University, heard rumors last year that courses they designed for an online program were being used without their permission. So in the summer of 2011, MacSwan registered as a student in an English as a Second Language program for which the couple, both tenured professors, had developed courses. In his telling, he logged on to discover that the courses he and his wife, an associate professor of linguistics, had created were being used without attribution or authorization. A lawsuit is now likely as MacSwan and Rolstad claim damages for alleged violation of copyright laws and university rules. The couple left Arizona State and are now employed as tenured professors in the College of Education at the University of Maryland at College Park. Their lawyer sent a notice of claim, a legal notice that precedes a lawsuit, to the Arizona Board of Regents and the state's attorney general in December, calling for $3 million in damages. Sparring over ownership of course materials might grow, as more institutions offer online courses and look at them as a potential source of revenue. Experts feel that the law is uncertain when it comes to statutes and case law, and an argument could be made for either side. "…As a practical matter, it is best for a university to have a policy about the ownership of course materials or an actual agreement with faculty members," said Georgia K. Harper, scholarly communications adviser for the University Libraries at the University of Texas at Austin. Harper, an attorney who also represents the UT system's office of general counsel on copyright issues, said universities may have different traditions: there might be a strong tradition of faculty ownership at one, while other institutions might claim ownership of such materials, stating that they were created within the scope of employment.
Case Study of Social Media in Business (KIT, 15 March 2012) - The MIT Sloan School's Center for Information Systems Research (CISR), famous for the book by Profs. Jeanne Ross and Peter Weill, "Enterprise Architecture as Strategy," just published a short report (subscription required) by Prof. Wanda Orlikowski and Susan Scott, "How Social Media Can Disrupt Your Industry: a Case Study in the Travel Sector." The authors shows how a Web site like TripAdvisor has, for better or for worse, changed the way hotels are rated, and they recommend some steps for a business to understand and leverage the crowdsourcing of user opinions.
Social Networks Cannot be Forced to Filter Traffic for Privacy (Steptoe, 15 March 2012) - Europe's highest court has concluded that online social networks cannot be required to filter for illegal content as a general matter. The European Court of Justice (ECJ) last month held that national courts may not require a hosting service provider to install, at its own expense, a general filtering system designed to monitor user activity for copyright-infringing material. The court determined that mandating the installation of such a system would contravene the EU E-Commerce Directive and laws guaranteeing rights to freedom of business, protection of personal data, and freedom of information. The decision in SABAM v. Netlog NV is a natural follow-on to previous ECJ decisions regarding the role of online intermediaries in preventing the illegal downloading and sharing of infringing material online.
Democratic Senators Issue Strong Warning About Use of the Patriot Act (NYT, 16 March 2012) - For more than two years, a handful of Democrats on the Senate intelligence committee have warned that the government is secretly interpreting its surveillance powers under the Patriot Act in a way that would be alarming if the public - or even others in Congress - knew about it. On Thursday, two of those senators - Ron Wyden of Oregon and Mark Udall of Colorado - went further. They said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained. The senators, who also said that Americans would be "stunned" to know what the government thought the Patriot Act allowed it to do, made their remarks in a letter to Attorney General Eric H. Holder Jr. after a Justice Department official last month told a judge that disclosing anything about the program "could be expected to cause exceptionally grave damage to the national security of the United States." The Justice Department has argued that disclosing information about its interpretation of the Patriot Act could alert adversaries to how the government collects certain intelligence. It is seeking the dismissal of two Freedom of Information Act lawsuits - by The New York Times and by the American Civil Liberties Union - related to how the Patriot Act has been interpreted. The senators wrote that it was appropriate to keep specific operations secret. But, they said, the government in a democracy must act within publicly understood law so that voters "can ratify or reject decisions made on their behalf" - even if that "obligation to be transparent with the public" creates other challenges. The dispute centers on what the government thinks it is allowed to do under Section 215 of the Patriot Act, under which agents may obtain a secret order from the Foreign Intelligence Surveillance Court allowing them to get access to any "tangible things" - like business records - that are deemed "relevant" to a terrorism or espionage investigation. There appears to be both an ordinary use for Section 215 orders - akin to using a grand jury subpoena to get specific information in a traditional criminal investigation - and a separate, classified intelligence collection activity that also relies upon them. The interpretation of Section 215 that authorizes this secret surveillance operation is apparently not obvious from a plain text reading of the provision, and was developed through a series of classified rulings by the Foreign Intelligence Surveillance Court.
One Sci-Fi Author Wrote 29 of the Kindle's 100 Most-Highlighted Passages (SlashDot, 17 March 2012) - An anonymous reader writes: "Today Amazon announced that a science fiction writer has become the Kindle's all-time best-selling author . Last June Suzanne Collins, who wrote the Hunger Games trilogy, was only the fourth author to sell one million ebooks, but this month Amazon announced she'd overtaken all her competition (and she also wrote the #1 and #2 best-selling ebooks this Christmas). In fact, 29 of the 100 most-highlighted passages on the Kindle were written by Collins, including 7 of the top 10. And on a separate list of recent highlights, Collins has written 17 of the top 20 most-highlighted passages." It's pretty interesting to go through the top-100 list and look at the passages people think are worth highlighting. Taken out of context, many of them could be patched together and re-sold as a self-help book. None are quite so eloquent as #18 in the recent highlights.
New Case Highlights Split of Authority Interpreting the Computer Fraud and Abuse Act (Foley, 18 March 2012) - Employers increasingly are suing former employees who have left to join or form competing companies using the civil remedies available under the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. They use the CFAA to prevent their former employees from using sensitive information obtained from the former employer's computer system. The scope of the CFAA, however, is subject to hot debate among the federal courts, as highlighted by a recent case from the District of Minnesota. In Walsh Bishop Associates, Inc. v. O'Brien, Civil Action No. 11-2673 (DSD/AJB), 2012 WL 669069 (D. Minn. Feb. 28, 2012), the court interpreted a provision of the CFAA, 18 U.S.C. § 1030 (a)(2)(C), which subjects an individual who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer" to civil liability should the plaintiff meet certain conditions. In particular, the court had to determine the scope of the phrase "exceeds authorized access," which the CFAA defines as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. § 1030(e)(6). The plaintiff argued that a person exceeds authorized access by accessing information in order to use it in a manner contrary to an employer's interests and use policies. The O'Brien court, however, concluded, among other things, that subsection (a)(2) is not based on use of information, but rather access to information. Plaintiff's interpretation therefore could not be correct and the court had to focus on whether the defendants accessed information that they were forbidden to access instead of how defendants intended to use the information they had obtained. Other courts, including the District of Massachusetts, have come to a different conclusion regarding this language in the CFAA. In Guest-Tek Interactive Entertainment Inc. v. Pullen, 665 F. Supp. 2d 42 (D. Mass. 2009 ), Judge Gorton analyzed a different provision of the CFAA that also included both the "without authorization" and "exceeds authorized access" language. See 18 U.S.C. § 1030(a)(4). The defendants argued that the CFAA applies only to those lacking initial authorization and not those who subsequently misuse or misappropriate information. The plaintiff in response argued that the employee defendant's alleged breach of his fiduciary duty of loyalty to the plaintiff (by copying files and secretly planning a competitive venture while still employed) effectively extinguished his authorization to access plaintiff's computers. The employee defendant's initial authorization to access the plaintiff's confidential information was premised on the agency relationship between the parties, the plaintiff argued, and therefore when the employee breached his duty of loyalty he ended that relationship and constructively terminated his authorization to access the plaintiff's files. Judge Gorton agreed with the plaintiff. He determined that the First Circuit advocated a broader reading of the CFAA in EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001 ). In that case, the court "upheld a CFAA claim against employees who had collected pricing information from their former employer's website in order to develop a competing entity with lower prices." Guest-Tek , 665 F. Supp. 2d at 45. The First Circuit found "that the former employees' reliance on [plaintiff]'s pricing information reeked of use-and indeed, abuse-of proprietary information that goes beyond any authorized use of [plaintiff]'s website." Id. (quotation and brackets omitted). The First Circuit's analysis of the employees' "authorized use" and "abuse" of the plaintiff's proprietary information in Explorica , Judge Gorton ruled, undercut the Guest-Tek defendants' plain language argument-the type of argument the court accepted in O'Brien .
Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment (Caren Myers Morrison, SSRN) - Abstract: While Facebook has become ubiquitous in most people's lives, it is also making increasingly frequent appearances in criminal cases. In the past few years, Facebook has emerged as a fertile source of incriminating information from boastful or careless defendants who find in Facebook a great way to project their outlaw persona to the world. But does the Fifth Amendment privilege against self-incrimination shield someone who has posted incriminating information on his Facebook page from being forced to disclose his password or provide access to his profile? While in most cases, Facebook information is public, in rare situations, a law enforcement officer might find herself in the peculiar position of believing that incriminating information is posted on a Facebook page, but having no way to get to it without the suspect's cooperation. In these circumstances, the government would have to subpoena the suspect for his Facebook content or his password, and may have to compel compliance by offering immunity for the act of producing the information. What is not clear is whether the immunized communication implied in the act of turning over Facebook content or passwords - confirming the existence of the account, the defendant's control over it, and its authenticity - would then taint the Facebook information itself, rendering the government unable to use it. While these situations are only likely to arise in a relatively narrow class of cases, the application of unsettled Fifth Amendment doctrine to novel technological issues raises complex questions. This paper, part of the Arkansas Law Review's Symposium on Facebook and the Law, will attempt to provide a guide through this uncharted landscape. After reviewing Facebook's growing prominence in criminal cases and the tangled Fifth Amendment jurisprudence that governs subpoenas for documents, I conclude that, where the government does not have enough information to obtain Facebook information from the company itself, a suspect's Facebook profile may be effectively beyond government reach. In the final section of the paper, I consider whether this level of protectiveness is normatively desirable or whether it will simply create an incentive for greater government intrusions.
Congressional Oversight of Agency Public Communications: Implications of Agency New Media Use (BeSpacific, 19 March 2012) - CRS report , Kevin R. Kosar, Analyst in American National Government: "This report intends to assist Congress in its oversight of executive branch agencies' public communications. Here, "public communications" refers to agency communications that are directed to the public. Many, and perhaps most, federal agencies routinely communicate with the public. Agencies do so for many purposes, including informing the public of its rights and entitlements, and informing the public of the agency's activities. Agencies spent more than $900 million on contracts for advertising services in FY2010, a figure that does not include all agency communications expenditures. Congress frequently has investigated agency public communication activities. For example, in late February 2012 the Senate Homeland Security and Governmental Affairs Committee's Subcommittee on Oversight of Government Management began investigating 11 federal agencies' public communications activities and expenditures."
Social Media Still Has Skeptics in Government (Government Technology, 19 March 2012) - Social media and networking websites have spanned the globe, but these free-to-use online services continue to be greeted with skepticism within some government workplaces. Twenty-seven percent of government IT professionals working in state or local government aren't allowed to access social media and networking websites such as Twitter and Facebook at work, while 20 percent said these online sites are of limited usefulness in the workplace. Another 12 percent said they are of no value at all. The findings came from a new Government Technology survey based on responses from 100 members of the GovTech Exchange, an online community of senior-level IT professionals from state and local government. On the whole, according to the data below, adoption and enthusiasm for websites like Facebook and Twitter appears to be vigorous.
Bizarre Combo Rulings From EU Court Of Justice: Dentists Don't Have To Pay Music Royalties, But Hotels Do (TechDirt, 21 March 2012) - Over the last few years, collection societies have become ridiculously aggressive in trying to get just about anyone to pay up for playing music. The results have been rather crazy, with auto garages being told that they have to pay up because the mechanics out in the garage had the radio on loud enough that customers in the waiting room could hear it. Ditto for a police station where some officers had a radio on in the back, but which some of the public could hear in the front. Then there was the demand that a grocery story pay up because a shop assistant sang while stacking cans . And the craziest of all: the time when the owner of a horse stable was told to pay up because her horses liked listening to music. A lot of this comes from the simple fact that these collection societies are really just trying to squeeze as much excess revenue as they can out of any location they can find. It's gotten to the point where the "copyright investigators" are really sales people , and are given incentives just like a sales person. They have revenue targets with bonuses for extra revenue they bring in. This gives them incentives to do all sorts of crazy things... like randomly calling up small businesses and if they hear any music in the background , demanding a license. Thankfully, it appears that the EU Court of Justice is pushing back on some of that. It recently issued two rulings about royalty collections -- but unfortunately it seems like the two rulings conflict with each other in some ways. In one, it is determined that a dentist's office does not need to pay a royalty because patients don't go to the dentist for the music. But then there's the other ruling. The exact same court. The exact same panel of judges. The exact same day. Very different ruling. This one involved a hotel, and the question of whether or not music playing in the hotel rooms is subject to collections. And here, the court comes to the opposite conclusion, and says that the hotel must pay.
First Amendment, Tort, and Privacy - The Privacy Paradox: Piracy and its Conflicting Values (Stanford; 3 Feb 2012; 101 minutes) - [Editor: fascinating and useful discussion by Eugene Volokh, Cindy Cohn, Jeff Rosen, and Tom Goldstein; topics include the Jones GPS case, the emerging "right to be forgotten", a negligence-based theory of required surveillance practices, and others.]
"Always On" Is Surprisingly Good (InsideHigherEd, 15 March 2012) - Give yourself 5 hours and 42 minutes to read Always On: How the iPhone Unlocked the Anything-Anytime Future--and Locked Us In (by Brian X. Chen) (the length of the audiobook … you will read it even faster if you use your eyeballs and not your ears), and you will learn some new things. Brian X. Chen is not an Apple fanboy or an unthinking iPhone evangelist. Rather, Chen (who now writes for the NYT Bits blog ) is a thoughtful critic of the costs, as well as the benefits, of our always connected and hyper-networked society. Chen's thesis is that the combination of 3 technologies - the smart phone, ubiquitous bandwidth, and Web 2.0 social tools - have fundamentally changed how we structure our professional and personal lives. Mobile information abundance, combined with always available digital communication, equates to the need for new structures around our work, education, and social lives. What Chen is advocating is that we take seriously this shift from information/communication scarcity to information/communication abundance . He asks, what would higher education look like if designed around the capabilities the iPhone and mobile apps, and he wonders how the institutions that do not evolve will remain relevant. Chen also recognizes the costs of living in a world where e-mail, text messaging, Twitter, Facebook and the entire Web are always with us. Chen does not shy away from detailing the dangers of our mobile web addiction. He worries that we will misuse the technology of smart phones, ubiquitous networks, and social tools to avoid rather than develop authentic relationships. And rather than offer any simple fix-alls or advice, Chen takes the route of detailing how the iPhone and the web has provided both benefits and costs in his own relationships.
LOOKING BACK - MIRLN TEN YEARS AGO
LEFT GETS NOD FROM RIGHT ON COPYRIGHT LAW (CNET, 20 Nov 2002) -- U.S. Appeals Court Judge Richard Posner, one of America's most prominent jurists, warned Tuesday of an "enormous expansion" of intellectual-property law, adding a conservative voice to a chorus of criticism that's so far come from the left. During a lecture organized by the American Enterprise Institute and the Brookings Institution., Posner criticized a 1998 law extending the duration of U.S. copyrights. He also attacked the Patent and Trademark Office for granting "very questionable" business method patents. "These rights keep expanding without any solid information about why they're socially beneficial," Posner said. "At the same time that regulations are diminishing, intellectual-property rights are blossoming--(two) opposite trends bucking each other." Posner's critique is significant because up to now much of the attack on the steady expansion of intellectual-property rights has come from the left, and the Seventh Circuit judge is a darling of the conservative movement. Posner, a prolific author, is most famous for applying economic analysis to the law. He also mediated settlement talks in the Microsoft antitrust case. http://news.com.com/2100-1023-966595.html
SECRETARY NORTON IS CITED FOR CONTEMPT IN INDIAN TRUST CASE (Government Computer News, 18 Sept 2002) -- A federal judge yesterday found Interior secretary Gale Norton and assistant secretary for Indian affairs Neal McCaleb in contempt of court for failing to fix systems that manage trust fund accounts for American Indians. Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia charged the two government officials with four counts of fraud against the court and one count of litigation misconduct. The ruling came in the long-running case of Cobell v. Norton. Last December, Lamberth ordered the Interior Department to disconnect nearly all its systems from the Internet because of security flaws that put the trust funds in jeopardy [see www.gcn.com/vol1_no1/daily-updates/17636-1.html]. Some department systems closely related to trust accounting remain disconnected from the Internet, although Interior has been gradually restoring Net services with the approval of a court-appointed security reviewer. Lamberth last week ruled that the Interior officials had acted "disgracefully" by failing to fix the flawed accounting systems or submit honest reports about efforts to build the Trust Asset and Accounting Management System and conduct a data cleanup project at the Bureau of Indian Affairs. http://gcn.com/articles/2002/09/18/secretary-norton-is-cited-for-contempt-in-indian-trust-case.aspx?sc_lang=en
MIRLN (Misc. IT Related Legal News) is a free e-newsletter published every three weeks by Vince Polley at KnowConnect PLLC. You can subscribe to the MIRLN distribution list by sending email to Vince Polley ( mailto:email@example.com?subject=MIRLN ) with the word "MIRLN" in the subject line. Unsubscribe by sending email to Vince with the words "MIRLN REMOVAL" in the subject line.
SOURCES (inter alia):
1. The Filter, a publication of the Berkman Center for Internet & Society at Harvard Law School, http://cyber.law.harvard.edu
2. InsideHigherEd - http://www.insidehighered.com/
3. SANS Newsbites, firstname.lastname@example.org
4. NewsScan and Innovation, http://www.newsscan.com
5. BNA's Internet Law News, http://ecommercecenter.bna.com
6. Crypto-Gram, http://www.schneier.com/crypto-gram.html
7. McGuire Wood's Technology & Business Articles of Note
8. Steptoe & Johnson's E-Commerce Law Week
9. Eric Goldman's Technology and Marketing Law Blog, http://blog.ericgoldman.org/
10. Readers' submissions, and the editor's discoveries.
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