Archive for the ‘Computer Law’ Category

Be Afraid. Be Very Afraid.1

Saturday, June 28th, 2014

A cyber security firm called Norse maintains what it claims to be a dynamic, real-time map of cyber attacks as they happen, showing cities of origin and targets.¬† The first thing you’ll do after viewing this constantly-changing map is update your security software.¬† The second is to clean the cobwebs out of your filing cabinet.

1. ‘The Fly,’ 1986, Jeff Goldblum and Geena Davis.

— Robert Yarbrough, Esq.

But I Already Paid for That!

Thursday, January 31st, 2013

We are anonymousThe United States Federal Government does a lot with tax dollars. One of those things is that it funds research in many areas that lead to published papers in basic science, medicine, engineering, and many more fields. Another is that it runs the Federal Court system, which publishes orders, rules, opinions, and the like. What do all of these publications have in common?¬† It’s that even though your tax dollars paid to create them in the first place, you will almost certainly have to pay again if you want to read them. You may pay a journal publisher thousands of dollars per year for a subscription, or pay $20-$45 for a copy of a single article. ¬†You may pay 10¬Ę per page to PACER, the online court system operated by the government, but you’ll pay.

Some argue that if tax dollars are used to create a document, then taxpayers should not have to pay to read it.  Certainly, this was the argument of young Aaron Swartz, when he downloaded a significant slice of the PACER database and put it online for free. He also argued that the JSTOR database of articles was largely the result of publicly funded work, and should be freely available. JSTOR, a nonprofit organization, is a database of scholarly publications, including thousands journals that cost thousands of dollars each per year in subscription fees Рand that publish taxpayer-funded research.

According to the famous “hacker ethic”, information wants to be free. ¬†This ideal, often in conflict with the proprietary rights regimes of patent and copyright, sets in motion a conflict that, in the case of Mr. Swartz, led to his prosecution and the threat of crushing legal fees, heavy fines, and a potential prison sentence far longer than if he had killed someone while driving under the influence of alcohol. In the face of these penalties, Mr. Swartz, age 26, took his own life.

The hacktivist group “Anonymous” has expressed its collective disgust with this situation using its recognizable Guy Fawkes masked persona, by inserting a message onto the website of the Federal Sentencing Commission.¬†Their message, hacked into the website stated, in part,

There must be reform of outdated and poorly-envisioned legislation, written to be so broadly applied as to make a felony crime out of violation of terms of service, creating in effect vast swathes of crimes, and allowing for selective punishment. There must be reform of mandatory minimum sentencing. There must be a return to proportionality of punishment with respect to actual harm caused, and consideration of motive and mens rea. The inalienable right to a presumption of innocence and the recourse to trial and possibility of exoneration must be returned to its sacred status, and not gambled away by pre-trial bargaining in the face of overwhelming sentences, unaffordable justice and disfavorable odds. Laws must be upheld unselectively, and not used as a weapon of government to make examples of those it deems threatening to its power.

This crie de coeur goes beyond making information free, and the delivery method, hacking a website, is, itself, criminal, but the message rings true to those who remember the social activism of the 1960s and who lived through the Pentagon Papers, Watergate and Iran Contra. Even some intellectual property attorneys (but not many) have come to recognize that our present laws punish what used to be considered artistic creativity, and thus impoverish our culture and our civil discourse.

Perhaps the young Congressional staffer who suggested that we rebalance the interests of publishers and the public they used to serve was on the right track after all – just before he was fired for suggesting that copyrights ought to be a bit shorter than a century!

Lawrence A. Husick Esq.

Viacom v. YouTube: The Saga Continues

Thursday, May 26th, 2011

YouTubeYouTube is no stranger to copyright infringement issues.¬† In 2008, Viacom filed a $1 billion copyright infringement suit against YouTube, claiming that the video site contributed to an explosion of copyright infringement by permitting users to post infringing videos.¬† The federal district court eventually dismissed Viacom’s action against YouTube on grounds that the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions protected YouTube from liability.¬† You may recall that we’ve written about the safe harbor provisions of the DMCA in this newsletter.¬† Under the the safe harbor provisions, web site owners are immune from liability arising out of materials uploaded by others unless the site owners know about infringing materials and fail to take action.¬† In Viacom, the U.S. District court held that YouTube’s executives had only general knowledge of infringing activities, which was not specific enough to trigger liability under the DMCA.

Viacom has not surrendered.  In December 2010, it filed an appeal with the U.S. Court of Appeals for the Second Circuit and in early May 2011, the last round of briefs were filed.  The case is now ready for decision.

Since the filing of Viacom’s lawsuit, YouTube has not remained idle.¬† It has strengthened its anti-infringement efforts by creating a copyright school for users subject to at least three copyright complaints, requiring them to watch a video and pass a short multiple-choice test.¬† Here’s the video for your enjoyment (and education):

YouTube Copyright School

YouTube Copyright School

These efforts were mocked by Viacom in its closing brief:

That the YouTube of today is increasingly effective in filtering copyrighted material and sends infringing users to “copyright school” is of no moment, except perhaps to demonstrate what YouTube could have been doing during the time period that is at issue in this lawsuit, from YouTube’s launch in 2005 to May 2008.

We now await the decision of the appeals court.

Adam G. Garson, Esquire

Lawrence Husick to Present on “Understanding Cyberspace as a Battlefield”

Thursday, January 27th, 2011

On Friday, February 11, 2011 from 11:30 a.m. – 12:30 p.m. at the Foreign Policy Research Institute (“FPRI”), Lawrence Husick will be presenting on the subject of “Understanding Cyberspace as a Battlefield.”¬† The FPRI describes Lawrence’s presentation as follows:

Cyberwar, as Richard Clarke recently explained to FPRI’s members, is the next great threat to national security. It is a threat to military capabilities, but even more so, to civilian systems and infrastructure. Cyberspace is likely to be the theater of our next war, and that war may already be underway. Because cyberwar weapons are computers, networks, routers and compilers, there are few who genuinely understand the battlefield, and fewer who understand the goals, strategies and tactics necessary to develop both an offensive capability and a defensive stance. Lawrence Husick, FPRI’s resident tech-geek, will discuss cyberwar in the context of value-based threat models. How can we identify the likely targets, evaluate the consequences of successful attacks, and implement a competent defense? More importantly, how likely is the US to actually do so?

To learn more, visit the FPRI website.

Ask Dr. Copyright…

Thursday, September 30th, 2010

copyright question

Ask Dr. Copyright…

Dear Dr. ©:

I want to buy some new software for my PC, and have found that the prices on eBay are lower than in my local computer store.  Provided that the eBay seller is reputable, why not save a lot of money, since the software is now many times more expensive than the computer hardware?

Signed,

Software Cheapskate

Dear Cheap:

Until a couple of weeks ago, your skinflint solution to the cost of software seemed like a lead pipe cinch (which, I suspect, you have never seen, and have no idea what it’s used for, but I digress…)¬† There are plenty of reputable businesses on eBay and elsewhere that sell copies of both current and old version software at good prices.¬† Many of these buy the software from stores and other companies that go out of business.¬† Much of it is “NIB” (eBay slang for new, in box) and comes with the manuals, registration numbers, and disks.

Unfortunately, a couple of weeks ago, the Ninth Circuit Court of Appeals threw a bit of a sabot (a wooden clog worn by French factory workers in the 19th Century) into your plans.¬† (Vernor v. Autodesk, Inc. (No. 09-35969, 9th Cir.))¬† You see, the Court ruled that since software is “licensed” and not “sold”, the software companies are able to insert legal language into the licenses to prevent transfer of the software from the original licensee to anyone else.¬† The Court specifically said that the “first sale doctrine” under copyright law (that after a copyrighted work is sold for the first time, the seller can’t control what is done with it thereafter) does not apply when there is never a first sale (because it’s only a first license!)¬† It’s the first sale doctrine that allows used book and record stores to operate, and NetFlix to send you your movie DVDs (because after NetFlix buys the disk, it can do whatever it wants with it, as long as it doesn’t make copies.)

If you read the license language on the EULA (End User License Agreement) that came with your software, you may find restrictions on transfer.  Such restrictions are common and exist in the Windows EULA, the Microsoft Office EULA, and many others.  You never bought the software, only a license, and thus, your use and transfer may be restricted.

If you think that this situation is bad, I have news for you…it gets worse.

For instance, that music and those movies that you thought you bought from iTunes: it’s actually just licensed to you (the legal terms and conditions run over 50 pages.)¬† Your new car contains dozens of microprocessors, and the software that runs the car…you guessed it – licensed.¬† Your new Blackberry, your new digital television, your new microwave oven…all contain licensed software.¬† In fact, even such non-computer things as the light switches, thermostats, portable telephones, refrigerators, garage door openers, doorbells, fire alarms, water heaters, furnaces, air conditioners, and music keyboards all contain licensed software.¬† This phenomenon has led some to conclude that we are witnessing the death of sales.¬† From now on, all you will get for your money is a license. (“Excuse me, miss, but I noticed in the produce aisle that the lettuce is licensed for garnish, but not for salads.¬† Can I use it to make a BLT?”)

Under the Ninth Circuit’s reasoning, there is no limit to the restrictions that could be imposed in licenses.¬† It is possible that one day soon, you may not be able to have a garage sale that includes anything electronic without providing written notification (and possibly payment) to the dozens of licensors who own the software in your stuff.¬† You may not even be permitted to sell or rent your house because doing so may violate one or dozens of software licenses.

Until this question is addressed by state and federal legislatures, the area is a murky one.¬† You can count on the fact that companies will want to impose the most restrictive terms that they can get away with.¬† For computers and software, these terms will mean that you don’t own what you thought you bought.¬† For other types of products, the terms will be tempered by traditional notions of sale – at least until the licensing lawyers get ahold of it.

So, Cheap, at least for now, it looks like you’d better have a larger software budget.¬† Those good deals on eBay just became a minefield and you just can’t afford to step in the wrong place.¬† If you have any questions about licenses, ask the lawyers at LW&H.¬† They wade through that legal mumbo-jumbo every day!

— Lawrence A. Husick, Esq.

Keeping it Private in the Work Place

Thursday, September 30th, 2010

Have you ever wondered about the privacy of your web-based e-mail communications, e.g., Hotmail, Yahoo, or Gmail, as you carry out your personal business on your company-owned computer?¬† A March 2010 decision by the Supreme Court of New Jersey sheds some light on the subject.¬† In Stengart vs. Loving Care Agency, Inc.,¬† Marina Stengart used her company-issued computer to communicate with her lawyer through her personal, password-protected, web-based Yahoo e-mail account. Stengart eventually resigned her position and sued her former employee, Loving Care Agency, for employment discrimination. During the lawsuit, Loving Care Agency conducted a forensic examination of her computer and discovered her e-mails, including e-mails to her attorney written on her Yahoo account, among the web pages stored in the computer’s Internet cache.¬† The story does not end there because opposing counsel disclosed Stengart’s attorney-client e-mail exchanges, claiming that Loving Care Agency had the right to review them. That’s where the court jumped in.

The issues before the court were, first, whether Stengart had an expectation of privacy in her personal e-mail despite her having accessed them on a company computer and, second, whether Loving Care Agency’s lawyer violated the attorney-client privilege by reviewing her e-mail.¬† In New Jersey, as in most states, an employee’s expectation of privacy in his or hers computer equipment is typically determined by employee policies, particularly if they are written and disseminated to all employees in the form of an employee handbook. Loving Care Agency issued a pretty standard employee handbook, which prohibited certain obvious misuses of company computer equipment and provided it the right to “review, audit, intercept, access and disclose” all materials on company computer equipment.

Although it appears that this language provided sufficient notice to employees that they have no expectation of privacy in their computers, the handbook created an ambiguity by also permitting occasional¬† personal use.¬† The Court also pointed out that handbook did not warn employees that the contents of web-based e-mails could be forensically retrieved by Loving Care.¬† The Court held that the ambiguous employee handbook, Stengart’s obvious desire to keep her e-mail private, and her expectation of privacy in her attorney-client communications created an expectation of privacy in her personal e-mails even though they were contained on company-provided computer equipment.¬† Having determined that Stengart had an expectation of privacy in her e-mails, it was an easy step for the Court to conclude that Loving Care Agency’s lawyer had violated the attorney-client privilege by disclosing obviously privileged communications.

The Supreme Court of New Jersey’s decision in Stengart is important for a number of reasons. It suggest to employees that they should be careful with respect to e-mail communications — even web-based e-mail — made on company computers, and for employers it suggests that employee policies must give adequate notice about the information the employer can retrieve from employees’ computers.¬† Also, if an employer permits employees to use company equipment for personal use, it may create an expectation of privacy where none may have previously existed.¬† Take heed even if you are not a New Jersey company.¬† Although the case was decided by New Jersey court, other state courts may find it persuasive.

— Adam G. Garson, Esq.