outing the snoopers

Иконописиконографияиконимека мебелRosalind Picard, a co-inventor of software that can assess people’s expressions, is marketing the software for people with autistic spectrum disorders, and other users. However, she notes that:

Affectiva, Dr. Picard said, intends to offer its technology as “opt-in only,” meaning consumers have to be notified and have to agree to be watched online or in stores. Affectiva, she added, has turned down companies, which she declined to name, that wanted to use its software without notifying customers.

Steve Lohr, Smarter Than You Think: When Computers Keep Watch, NYT 2011/01/02.

While I have to acknowledge her consistency, it would be a more elegant bit of turn-around justice for consumers to be given those shy companies’ identity.

Google just cries out for Tom Lehrer

Or rather, the phenomenon that is Google cries out for Tom Lehrer. Come out of retirement, Tom! Political satire is not obsolete, notwithstanding Kissinger’s Nobel ….

A colleague posted on a listserv a brief note about an article on “Google’s planes”. I thought, no, really? Google is buying planes? for streetview, I imagine — holy cow, what’s next?

Then I clicked on the link and was relieved to see it was about Google’s plans; the colleague had merely made a typo.

Or so I thought.

Cue ominous music: dunh dunh dunh.

Because, as that same colleague informed me, Google actually IS buying unmanned drones for aerial surveillance for Street View ! ! ! ! ! (I think screeching violins a la “Psycho” would be good here.)

Well, no, not really. A Google executive is buying it “for personal use”. Google categorically denies Street View applications, which shows that its PR department definitely is on the ball.

Sometimes reality is not nearly as weird as it should be.

data privacy day — no, i did not know

Someone twittered today, “Did you know today was Data Privacy Day?” No, I did not know. But indeed it is. Behold!

On January 28, 2009, the United States, Canada, and 27 European countries will celebrate Data Privacy Day. One of the primary goals of Data Privacy Day is to promote privacy education and awareness among teens across the United States, helping teens learn to network and work online safely and responsibly. Data Privacy Day also serves the important purpose of furthering international collaboration and cooperation around data protection issues.

Celebrated jointly with the European Union for the first time in 2008, Data Privacy Day is quickly gaining recognition here in the United States. Congressman David Price has introduced a resolution in the House of Representatives seeking support for the declaration of January 28, 2009 as National Data Privacy Day.

Please join ITAA for our event commemorating Data Privacy Day and featuring remarks by Congressman Price and Member of European Parliament, Alexander Alvaro, as well as key representatives of the privacy community. A networking reception will follow.

ITAA would like to acknowledge Intel, Microsoft, AT&T, Oracle, and Google as supporters of Data Privacy Day.

from the Information Technology Association of America ….

yaay EFF & Georgia senatorial candidate

Of course, it’s never surprising when the EFF takes on the most challenging issues in technology law, but it was particularly gratifying to see them arguing to overturn the odious telecommunications immunity passed last year. The Machinist at Salon — a blog I’ve been appreciating more and more lately — has a great summary & recap of the issue.

And two for two for Salon.com today, because Glenn Greenwald, who now also blogs for Salon, highlighted today something that did surprise me: Georgia Democratic Senatorial candidate Jim Martin’s principled critique of that legislation.

Go figure. Political candidates can surprise me with something other than the depths of their ignorance and/or pandering and/or willingness to lie outright.

shades of the Pinkertons

In Burger with a Side of Spies (editorial, NYT 5/7), Eric Schlosser calls for legislation to protect people from private entities, á la the Bill of rights.

The article discusses a number of incidents, including spying and infiltration
– by HP on journalists;
– by a private security firm on Greenpeace & other environmentalist groups; and
– most recently, Burger King on the Student/Farmworker Alliance.

I note that the article did not cover the related litigation against the RIAA’s minions, spying on your networks. Similarly, the article did not cover companies’ growing abuses of their employees. Still, a good start.

internet privacy (NJ edition)

New Jersey’s Supreme Court has recognized that people have a reasonable expectation of privacy in their email communications — thus, law enforcement has to get a search warrant or grand jury subpoena. This was under the New Jersey Constitution and applies only to New Jersey. It’s the first major case finding a state constitutional privacy right in electronic records.

of penumbral emanations and scholarly trends

Speaking of penumbra yet again (1, 2) , I had previously blogged about a Circuit split on laws banning sex toys — it was Valentine’s Day, and I was feeling a bit whimsical, so I wished for a “penumbra” that would strike down stupid laws.

LawPundit “ha[s] an opinion” on my wish for a penumbra that covers “no stupid laws”; I thought it was pretty amusing & worth checking out.

LawPundit also annotated my use of the word “penumbra” with a link to google:define:penumbra. Unfortunately, I don’t think that quite captures the legal nuance. Legal scholar/lawyer-types know the reference, of course, but for those non-lawyers, “penumbra” is famous in Constitutional law as a reference to Griswold v. Connecticut. In Griswold, the Supreme Court overturned a Connecticut statute that made it a crime to buy contraceptives. Justice William O. Douglas, looking at the Constitutional guarantees of individual liberties as a whole, wrote that the statute violated the individual right to privacy, which could be found looking at the “penumbras” and “emanations” of Constitutional protections. The language is a little funny, but standing alone, or with Eisenstadt (which extended to unmarried people the right to buy contraception), this case, and the words “penumbra” and “emanations”, would provide simply a pleasant diversion to while away the afternoons in contemplation of rarely-used words in legal opinions. The concept of “penumbras” of a set of enumerated rights is not that bizarre, especially in light of the Ninth Amendment (which notes that “the enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people”) and the Tenth Amendment (which states clearly that powers not delegated to the US, nor prohibited to the States, “are reserved to the States respectively, or to the people”). These Amendments practically beg for penumbral analysis, and “privacy” (a concept theoretically defined and refined only in the last 125 years, but whose spirit animates much of the Constitutional protections) and “autonomy” (not considered one of the Constitutional “rights”, per se, but I keep wishing) are ripe concepts for that sort of analysis.

But conservatives have freaked out when the penumbras that protect privacy were extended to abortion in Roe v. Wade and to other matters of sexual privacy since then, and and now excoriate the very notion of penumbras. And emanations. (One could argue that the very essence of conservatism is a certain distaste for emanations.) So, “penumbras” the concept has acquired a certain air of disrepute in many legal circles, because even scholars who find it perfectly reasonable to examine the Constitution as a whole as well as in its discrete little parts, tend to back off a bit from Douglas’ sweeping penumbras and emanations, so successfully have right-wingers trashed those ideas. A damn shame, because the concept is perfectly reasonable, and it’s only the rabid dog opposition to abortion that has cast the shadow over Griswold and its penumbral emanations.

circuit split on sex toys

Well, the 5th Circuit (Texas) has just said that Texas’s anti-sex-toy-law (memorably mocked by Molly Ivins in this video, available at youtube via pandagon) is unconstitutional, relying heavily on Lawrence (or so I hear, via pharyngula); I haven’t read the case yet).

This looks like a pretty clear Circuit split with the 11th Circuit (Georgia, Alabama, etc.), which only a couple of years ago found a similar Alabama law to not violate the Constitution (PDF, Williams v. Atty General of Alabama, 11th Cir. (2004)); the Supreme Court denied cert on that one. (See Michael C. Dorf discussion at FindLaw for an overview that discusses this case with respect to the various standards in Constitutional Law.)

I really wish that we could have a penumbra of no stupid laws.

florida protected from stoner librarians

Or at least those who stuck around for the drug tests. After Gainesville, Florida, implemented drug testing for its library volunteers, the number of volunteers, most of whom were senior citizens, dropped from 55 to 2.

Bill Maher gave this story the fisking it deserves, and radref at Radical Reference pointed me to it to begin with. Then I realized that, no, I had seen it before on sivacracy, but that portion of the tape got wiped.

I really had thought, somehow, that this country had turned the corner on ever-increasing numbers of ridiculous, pointless, and oppressive drug tests, but perhaps not.

Reader, I married fafblog.

It was the only thing to do, after such postings as:

There’s No “War” in “Warrant”1 (12/17):

So George Bush secretly authorized the NSA to spy on Americans without warrants or judicial oversight. Oh, it violates your civil liberties, oh, it illegally breaks the Foreign Intelligence Surveillance Act, oh, that tape of you and your boyfriend having phone sex has been playing in the NSA break room for a month and a half. Well boo hoo hoo! Do you hear that sound, America? It is the world’s tiniest violin playing just for your civil liberties. You can hear it in excellent quality sound because it has been bugged by the NSA. …

“Oh but Giblets the president’s executive order is illegal” you say. That’s the kind of namby-pamby whining that would have the U.S. follow “international opinion” and “the Geneva conventions” and “U.S. law.”

Fafblog followed up on the no-FISA-needed Executive Order with The King of Freedom (12/23):

…How soon we forget the lessons of September 11th! Faced with a threat unlike any before, America can no longer afford its cumbersome system of unwieldy checks and balances. Instead it must nimbly respond to terror with a single, streamlined, omnipotent executive branch. Instead of waiting for critical domestic spying programs to pass through Congress, where bickering Senators can selfishly subject them to public scrutiny, an efficient White House can put them into practice so quickly the country doesn’t discover them for another four years.

All the usual suspects have begun ringing all the usual alarm bells, calling the president’s new powers unconstitutional or even dictatorial. This, of course, is absurd. There remain numerous checks on the president’s powers, such as God, who may override the president’s veto with a two-thirds vote, and the president himself, who may bring himself to justice should he find himself to have violated his oath of office. Nor have Congress and the courts been rendered powerless, as all three branches of government have vital roles to play: the executive branch to be the president, the legislative branch to support the president, and the judicial branch to tell the president he is constitutional….

Fafblog’s coverage of the war on terror is also must-read-blogging: (World Without a PATRIOT Act, 12/17):

So I’m browsin through my local library checkin out the latest developments in shelving technology when Osama bin Laden jumps outta the card catalogue an hijacks the reference section!

“Oh no!” says me. “Stop him before he misfiles that almanac!”
“Mwa-hahaha, you’re too late!” says the terrorist mastermind escapin into the periodicals. “Now nothing can stop me from researching the history of your hometown’s spicy marmalade festival!”
“He’s in the microfiche,” says the crusty ol librarian. “We’ll never catch im now!”

Oh John Ashcroft, where are you when we need you most!

And see The Central Front in the War on Facts (12/8):

The usual antiwar suspects have been up in arms for well over a week over the military’s planting of covert propaganda in Iraqi newspapers, caterwauling about the undermining of a fundamental tenet of Iraqi democracy. As always, their concerns are wildly misplaced. First, shouldn’t a pretend democracy have a pretend free press? Second, most of these pieces weren’t factually inaccurate, but mere “spin” – such as the article that spun an Iraqi general’s death under torture as death under not-torture. Third, propaganda is merely a weapon. America’s leaders would be foolhardy indeed to refuse a weapon in their arsenal, especially against an adverary as deadly as the truth.

While it may not be the ideal of journalism in a free society, is this planted, pro-military propaganda so different from the anti-military truthaganda published every day in the New York Times? While military propaganda shows a bias towards distortion, obfuscation, and outright lies in the service of the war effort, the baleful face of the Mainstream Media shows a clear bias towards reporting reality – and reality has always been America’s greatest enemy in Iraq.

And the ongoing coverage of the torture?-we-don’t-torture-but-we-need-to-be-able-to-torture-(even-though-we-don’t-torture) story was as good as it gets; most recently with Let a Thousand Bad Apples Bloom (12/17) (“Rest assured, from this day forth, the detainees tortured in American military prisons will only be tortured by accident or happenstance, or by dozens of rogue soldiers acting in simultaneously and of their own accord.”)

And on domestic issues, Fafblog also nailed it with Nature’s Harmonious Money Cycle” (12/8):

So you can’t afford to heat your house and somebody went and cut your Medicaid and food stamps. “Oh no!” you say burnin a spare child for warmth. “Whatever will I do.”

… and righteously chastised us all about dangerous support for the HPV vaccine (God Bless the Plague, 11/17):

God created death and disease to provide a divine disincentive against soul-sullying sin. Can America afford to innoculate its children, insure its poor, and make peace with its neighbors if it means not living in fear of an insane, invisible overseer in the sky who barks at his creation in a series of mad, contradictory myths? Absolutely not. God bless the plague!

In conclusion, I highly recommend daily conjugal visits with fafblog (the worlds only source for fafblog).

war on us

oh happy day! The war on us is progressing nicely and soon we will have won the war against ourselves. Phones are being tapped willy-nilly and surely some of them will generate some useful information to allow us to be held without trial or access to the courts indefinitely under the president’s powers. The government is cracking down on those enemies of the state, video game retailers.

fafblog: there’s no war in warrant

alito on copyright, first amendment, cyberlaw

DRAFT: a work in progress; will be updated as I review more cases (or find typos)

Well, according to NPR, Judge Sam Alito from the Third Circuit is nominated. I’m sure that everyone will be all over his record on every conceivable issue in no time at all, but I’m looking at his copyright etc. for a few minutes just to see what’s out there.

copyrightprivacyfirst amendment & speechconsumer rights in telecomm, clickwrap, EULAs, antitrust, etc.other cyberlawalso interesting

copyright

I haven’t found much in the 3rd Circuit case law that suggests Alito has dealt with a lot of the most pressing copyright questions or the constitutional copyright questions, beyond originality. He has been good on originality, and in general he appears to be careful and thoughtful about copyright. So far, I’ve found:

Four opinions signed or written by Alito relate to originality: Alito wrote one opinion (Southco) and signed two (Southco en banc and R&B v. Needa (unpublished)) finding that part numbers lack sufficient originality for copyright protection. Alito also signed the troll doll opinion (Dam Things) which basically said that a derivative work needed to be carefully parsed for originality.

Two opinions on copyright registration technicalities. Alito signed a per curiam in Gallup v. Kenexa, and dissented in Raquel; the Raquel majority opinion was specifically criticized by the Copyright Office and then reversed by Supreme Court. In both instances Alito was critical of technical readings of registration requirements that stripped registrants of their copyright protections.

Two opinions on copyright preemption in Orson v. Miramax: Alito dissented in Orson I, and then signed the 3rd Cir en banc opinion, reversing Orson I, and holding that the a Pennsylvania film distribution statute was preempted by the Copyright Act.

Alito signed an unpublished copyright licensing opinion in Operating Systems Support v. Wang. I’ll have to read it very closely, but at a quick glance, it looks like a business-to-business software licensing agreement. Looks mostly like a close contractual reading of the terms of the various licensing agreements, without much analysis of the Copyright Act. As Seth Finkelstein pointed out on copyfight, business-to-business licensing cases don’t give a good sense of a judge’s opinion of consumer issues in contracting. But, Ideoblog looked at Alito’s contract cases, and said that

Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs.

That could bode ill for any shrinkwrap cases that make it to the Supreme Court, including anti-reverse engineering clauses, anti-resale/First Sale clauses, or other consumer-unfriendly clauses.

copyright cases with brief cites & descriptions:

  • Alito wrote the first 3d Circuit opinion in Southco v. Kanebridge, 258 F.3d 148 (3rd Cir. 2001) holding that part numbers are not copyrightable. He also signed the en banc opinion that also held part numbers are not copyrightable. [I discussed Southco; William Patry did a detailed analysis; and madisonian.net promises analysis later today]

  • Gallup v. Kenexa Corp, 2005 WL 2271271 (3rd Cir. 2005) – A very recent per curiam opinion from Sept. 19, 2005. Reversing summary judgment to defendant Kenexa on a copyright infringement claim, because the District Court erred in declaring Gallup’s copyright registration invalid on a technical reading of the registration requirements.

  • Orson v. Miramax, 189 F.3d 377 (3rd Cir. 1999) – Alito joined the majority en banc holding that a Pennsylvania statute was preempted by Copyright Act. The statute (Pennsylvania Feature Motion Picture Fair Business Practices Law) restricted movie distributors use of exclusive first run licensing contracts. Alito dissented in the reversed 3rd Cir. ruling, 174 F.3d 377 (3rd Cir. 1999), which held that the Pennsylvania statute was not preempted.

  • Raquel v. Education Management Corp., 196 F.3d 171 (3rd Cir. 1999). Alito dissented in another copyright registration case. Taken with Gallup, Alito really doesn’t like technicalities getting in the way of copyrights (at 182):

    I believe that the majority’s decision elevates form over substance and works a forfeiture of a valid copyright because of a misstatement that the trial court had already labeled inadvertent.

    This is another instance in which Alito has a good record with the Supremes: Cert. was granted & judgment was vacated by 531 US 952 (2000) which simply said:

    Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States, as amicus curiae, filed September 20, 2000, and the Copyright Office’s July 5, 2000, Statement of Policy, 65 Fed.Reg. 41,508.

    Basically the Copyright Office wrote that the 3rd Cir had gotten it wrong (65 FR 41508-01):

    [T]he court appears to have misunderstood the Copyright Office’s longstanding published practices relating to the “nature-of-work” space.

  • Alito was on a (the?) troll doll court! Dam Things from Denmark a/k/a Troll Company ApSm v. Russ Berrie & Company, Inc., 290 F.3d 548 (3rd Cir. 2002). The troll dolls from the 60s fad had copyright restored by 104A. The court held that the copyright qualified for restoration and was not abandoned, but that the District court had not properly considered the 104A safe harbor for derivative works, or properly done the infringement analysis. After spanking the District Court for its “somewhat conclusory treatment of the issues” and for not carefully distinguishing which troll was which, the 3rd Cir. remanded “for further consideration in light of this opinion.” (at 552) The 3rd Cir. went on to strongly suggest there was infringement, then said that the District Court needed to closely evaluate each work for infringement AND for originality to see if the minor differences noted between the various trolls constituted sufficient originality to qualify for the derivative works exception to 104A.

  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

  • R&B, Inc. v. Needa Parts Mfg., Inc., 50 Fed.Appx. 519 (3rd Cir. 2002) (not published). Per curiam. Another parts number copyright case affirming District Court finding that part numbers not copyrightable and plaintiffs not likely to succeed on trademark infringement claim.

consumer rights & public interest in telecomm, shrinkwrap, etc.

The picture that emerges from looking broadly at consumer rights and interests is not a good one. Alito appears to be quite concerned with enforcing the letter of contracts and working through the nuances of textual interpretation. However, consumer interests are protected in contract law through broad policies that inform the interpretation of clauses and doctrines. If Alito is, as he appears to be, very concerned with the trees, he may miss the forests. [The NYT 11/5 had a good review of his business opinions, including antitrust law; also covering arbitration decisions, employee discrimination, environmental law and investor claims.]

  • Ooh, TCPA. ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (1998). Alito dissented from a holding that the TCPA (Telephone Consumer Protection Act) did not create right to bring action in federal court. A close reading of a negative implication case.

  • Ethical Esquire pulls together some of the antitrust commentary & suggests that Alito is not a fan of private enforcement of antitrust.
  • Operating System Support, Inc. v. Wang Laboratories, Inc., 52 Fed.Appx. 160 (3rd Cir. 2002) (not published). Analysis copied from above: Alito joined an unpublished copyright license opinion. At a quick glance, it looks like a business-to-business software licensing agreement, with some close contractual reading of the terms of the various licensing agreements, and little analysis of the Copyright Act. Business-to-business is not very informative for consumer rights by itself, but see above, where I mentioned Ideoblog’s analysis of Alito’s contract cases that do implicate consumer rights. (Thanks to Seth Finkelstein’s comment on copyfight for making it clear that I needed to be a bit more descriptive about why I was distinguishing the case as a business-to-business contracts.)

first amendment (speech clause)

Alito seems to be involved in a lot of First Amendment caselaw, both speech and establishment/free exercise. I imagine this will be reviewed closely elsewhere but I started going through some of decisions. [New World Man looked at Alito's First Amendment speech clause jurisprudence, as did the First Amendment Center. The FAC says

A preliminary examination of his First Amendment opinions suggests that Alito is: (1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression.

which seems about right to me. Prisoners' 1A rights are not significantly protected; that fits in with a general conservative law-and-order perspective.

  • Saxe v. State College Area School District, 240 F.3d 200 (3rd Cir. 2001). First Amendment; struck down school anti-harassment policy.

  • Tucker v. Fischbein, 237 F.3d 275 (3rd Cir. 2001) - a defamation case. Alito wrote opinion that "held that: (1) statements were capable of a defamatory meaning under Pennsylvania law; (2) fact issue existed as to whether attorney acted with actual malice with respect to statements made after he was served with amended complaint naming him as party in prior action; and (3) fact issue existed as to whether statements made by attorney to reporters, and published in articles, were false; but (4) magazines and reporters did not act with actual malice sufficient to support recovery."

  • Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004) - First Amendment

  • White v. Communication Workers of America, AFL-CIO Local 1300, 370 F.3d 346 (3rd Cir. 2004) - labor / First Amendment

  • Edwards v. California Univ of Pennsylvania, 156 F.3d 488 (3rd Cir. 1998) - Alito wrote court's opinion in an academic freedom case. Professor challenged public university's restrictions on curriculum & teaching material. This one should make the "academic bill of rights" people happy: the professor was teaching instructional methods and included as examples information about religion, censorship, etc. The university restricted his teaching methods, and he claimed retaliation; Alito held that the university "the University can make content-based decisions when shaping its curriculum" (at 492). This is interesting (at 493):

    In sum, we conclude: (1) that Professor Edwards does not have a First Amendment right to choose classroom materials and subjects in contravention of the University's dictates; (2) that Edwards failed to state a procedural due process liberty claim because he did not allege a deprivation of employment; and (3) that the district court properly dismissed Edwards's equal protection claim after Edwards's own counsel conceded that the complaint failed to adequately state such a claim. We find Edwards's remaining arguments on appeal to be without merit. Accordingly, we affirm. We emphasize that we only pass on the narrow legal issues presented to us. Nothing in our opinion should be read to mean that we condone all of the conduct of the University officials that was revealed at trial.

privacy, 4th amendment

Robert Gordon wrote a good piece for Slate laying out Alito's conservative jurisprudence with respect to Fourth Amendment search and seizure cases, and individual liberties cases generally. He found:

At least in my research, Lexis/Nexis revealed exactly one case in which Alito protected individual rights more vigorously than colleagues. That wasn't really an individual-rights case at all; it was the states' rights case in which Alito would have vacated the conviction for owning a machine gun. So, for example, Alito sat on a dozen panels in which judges disagreed regarding a citizen's Fourth Amendment rights. ... In each of those cases, Alito adopted the view most supportive of the government's position. Of course, caveats apply. All of the cases are more complicated than short summaries can capture. In any given case, Alito's position often seems reasonable; it is the accumulation of consistent results that surprises.

Alito prepared a report on privacy for a 1972 conference. [posted by EPIC; link from MT Law Blog 11/3]

  • US v. Williams, 124 F.3d 411 (3rd Cir. 1997) – Federal Wiretapping Statute, video surveillance

  • The corker is the Doe v. Groody case in which Alito thought it okay for a 10-year-old and her mother to be strip-searched. That will be well covered elsewhere, I suspect.

Other CyberLaw

CyberJurisdiction

  • Toys’R’Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3rd Cir. 2003). Alito signed opinion reversing District Court’s refusal to grant limited jurisdictional discovery and granting dismissal for lack of personal jurisdiction. Question was whether Step Two’s websites were cybersquatting, trademark infringement, unfair competition, etc. Step Two is a Spanish company with web presence in the US. the court looked to Zippo‘s purposeful availment test; also cited ALS Scan (4th Cir) and Cybersell (9th Cir). The court noted that the evidence thus far didn’t look like it met the Zippo purposeful availment test but said the District Court had erred in not granting jurisdictional discovery, by focusing solely on the website and ignoring other Internet and non-Internet contacts. The court dismissed the contention that Step Two met New Jersey’s ‘express aiming’ test.

other IP & cyberlaw issues: trademark & unfair competition

  • Marshak v. Treadwell, 240 F.3d 184 (3rd Cir. 2001). Alito wrote opinion. Trademark & common law mark case.

  • Times Mirror v. Las Vegas Sports News, 212 F.3d 157 (3rd Cir. 2000)

  • A&H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197 (3rd Cir. 1999) – en banc trademark.

  • Iberia Foods Corp. v. Romeo, 150 F.3d 298 (3rd Cir. 1998) – trademark

other links & areas of interest

The individual liberties versus institutional rights (business, government) framework, laid out by Robert Gordon in Slate, appears to be a helpful one in examining Alito’s jurisprudence.

Ideoblog looks at Alito’s contract cases; New World Man provides an Alito primer which sums up and links to a variety of other analyses. New World Man also looked at First Amendment speech clause and religion. ThinkProgress does a press-release style rundown of some of Alito’s hot-button civil liberty cases.

SCotUS blog links to a lot of other blog commentary and also to the wikipedia entry which is unsurprisingly very current & detailed.

SCOTUSblog has some other notable cases, including a dissent on the abortion husband-consent statute from Casey. We’ll all be verrrry familiar with that one before long. The quick read I gave it said that Pennsylvania legislators could have reasonably thought that forcing a woman to discuss her medical options with her spouse was permissible because she might be mistaken about whether they could afford the baby or not … Paraphrased for heightened sarcasm.

news.com reviews some of the tech decisions & has some commentary from attorneys on copyright and electronic surveillance. On the electronic surveillance, the only discussion seems to support the notion that Alito is a law-and-order kind of guy; no surprise there. My take is that he is law & order, and will support police technologies generally. Purely private surveillance will be more interesting. On employment, I would bet he finds employer surveillance of employees permissible.

IPTA Blog Blawg Review nicely wraps up a lot of coverage of Alito.

Kurt Opsahl @ EFF Deep Links summarizes the cyberlaw / 1st Amendment / 4th Amendment privacy caselaw, and links to other coverage.

religion:

  • Child Evangelism Fellowship of NJ v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004) – an establishment clause case.
  • Blackhawk v. Pennsylvania, 381 F.3d 202 (3rd Cir. 2004) – a free exercise clause
  • ACLU-NJ v. Township of Wall, 246 F.3d 258 (3rd Cir. 2001) – establishment (public display) case
  • ACLU-NJ ex rel. Lander v. Schundler, 168 F.3d 92 (3rd Cir. 1999) – establishment (public display) case
  • FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir 1999) – Alito wrote court’s opinion holding that refusal to grant religious exception to no-beard policy violated Sunni Muslim employees’ free exercise rights.

prisoners’ rights:

  • Reynolds v. Wagner, 128 F.3d 166 (3rd Cir. 1997) – charging inmates for medical care does not violate the 8th Amendment; failure to translate it into Spanish does not violate Spanish-speaking inmates’ rights
morning tea round-up
  • Yahoo!’s historically less-than-stellar track record of protecting user privacy is made much, much worse by this news: Yahoo! turned over a user’s identity information to the Chinese government, and now journalist Shi Tao has been sentenced to ten years for “e-mailing a government’s plan to restrict media coverage around the 15th anniversary of the Tiananmen Square massacre”. [SJ Merc 10/2 editorial; see also Xeni Jardin in the LAT 10/9; and Open Letter to Jerry Yang, Yahoo!, from Liu Xiaobo, 2005 Oct. 7. ] The Merc thinks it’s “hard to blame Yahoo!” for this but wants them to more aggressively lobby on behalf of human rights. Me, I don’t find it hard to “blame” Yahoo! for what they did. The individuals at Yahoo! who made the decision to hand over accurate information made a choice: company profits and business model over the freedom of a journalist. I guess they were just doing what they were told. [link from ping]

  • The Bush Admin. has never really had a sense of humor about parodies. The latest brouhaha is about The Onion’s use of the presidential seal. [cnn 10/26] White House spokesperson Trent Duffy:

    “When any official sign or seal is being used inappropriately the party is notified. … You cannot pick and choose where to enforce that rule. It’s important that the seal or any White House insignia not be used inappropriately.”

    The Onion editor-in-chief, Scott Dikkers:

    “I’ve been seeing the presidential seal used in comedy programs most of my life and to my knowledge none of them have been asked not to use it by the White House. … I would advise them to look for that other guy Osama … rather than comedians. I don’t think we pose much of a threat.”

  • George Takei - Live Queer and Prosper

    George Takei (“Mr.
    Sulu”) vamps it up.

    Mr. Sulu George Takei is gay! His new role in “Equus” apparently “inspire[d] him” to come out. I have to say, I am deeply gratified to finally have some queer representation on Star Trek. Although looking at this picture, it seems like the official coming out was, well, redundant. [Jason Schultz has a nice photo for Sulu fans, and SFGate 11/10 has a lot more details.]

    Between Mr. Sulu Takei and WNBA triple-MVP winner Sheryl Swoopes, National Coming Out Day came out a little late, but strong. [Women's Hoops blog links to lots of Swoopes coverage.]

  • Research about five years ago showed that even as women athletes were setting records and breaking into new fields, sports photographers were increasingly minimizing and downplaying women’s athleticism. (Also at Women’s eNews. See also Womens Sports Foundation. That was in 2000, and a flurry of scholarship around that time evaluated that phenomena. A year or so later, the Smithsonian launched a traveling tour of sports photography of female athletes, Game Face (which I caught in DC at the time). Women’s ascendance in sports in the last five years has continued apace, and I wonder if there have been follow-up studies….

  • Chinese women bloggers are doing the sex blog thing. (This is at least the second or third such similar article on Asian women bloggers and sexuality that I’ve seen in the last year or so. News coverage about the Chinese government frowning or cracking down on this or that is fairly routine, I know. But I can’t help but wonder how much of the coverage is due to the starting! shocking! news that Asian women bloggers are blogging about sex, and how much of it is because white Western journalists are surprised to see such goings-on. Hey, I’m told that even in Boston, beans do it.)

  • Speaking of blogging, the NYT is trying to get “hip” to this newfangled “blogging” thing, and you can really see the results. In one article recently, the Times “jazzed up” their content with “hyperlinks”: the article included one link on the name of a state to NYT coverage about that state. And yesterday & today the coverage of the Scooter Libby resignation made me snigger with this bullet point: “Reactions: Bush. Cheney. Bloggers.” But I shouldn’t make fun, because the NYT also gave me a happy moment with its briefly-posted blurb for the Scooter Libby thing, which went something like this: “Scooter Libby indicted; steps down; Bush-Cheney no comment; Karl Rove not indicted.” The mere fact that Karl Rove’s non-indictment is news sends a warm glow all the way down to my toes, and I thank the NYT for that little moment of joy.

  • National science standards groups are registering their disapproval of Kansas’ new “science plus! religion” standards. Unfortunately, they’re using copyright to do so. [nyt 10/28]

  • The Washington Post trashes the E-Rate, the telecomm. tax-funded grant to schools & libraries for Internet access. [WPost 10/27]

owning photographs

In the fourth & final entry in Salon.com’s series on ‘ex-gay’ therapy ministries ['True confessions'], the writer describes how one ex-ex-gay’s attempt to control photographs of him is thwarted by copyright:

On the front page of the Exodus International Web site is a photograph of several dozen men and women. The allegedly changed homosexuals, or newly minted ex-gays, are beaming at the camera, apparently celebrating their newfound freedom from homosexuality. Standing in the center of the photograph is 29-year-old Shawn O’Donnell, who was enrolled in Exodus programs on and off for 10 years.

Exodus is the umbrella organization, information clearinghouse and referral service for “ex-gay ministries.”

The only problem with the Exodus photo is that O’Donnell is still gay.

Recently, O’Donnell asked Exodus president Alan Chambers to take his photo off the Exodus Web site. But Chambers, O’Donnell says, told him that Exodus owns the picture and it still signifies that people can change. “I said, ‘How can you say that is true when I know there are at least three people in that picture who have not changed?’” Exodus did not return my calls seeking comment about the photo.

This is a common misconception: people think they ‘own’ the photographs taken of them. In fact, no, they may own the prints of the photographs. But the photographer holds (‘owns’) the copyright, as the ‘author’ of the work. This FAQ written for photographers gives an idea of how photographers interpret copyright:

Even if one were to purchase an original portrait that was specially commissioned, the purchaser would only be able to frame and display the work. Unless the parties otherwise agree, the artist owns the copyright and the work cannot be copied or reproduced. Thus, without permission, the subject of the portrait cannot even make a holiday card from the painting.

Thus, some photofinishing labs (like Wal-Mart) have taken to refusing to duplicate photos that look ‘professional’ unless the holder has permission from the photographer. [See 5/30 story in sandiego.com; related commentary & links Ex Cathedra 6/8; Derivative Work 6/17]

hear, hear

siva calls out the folks who keep on talking to men in the public interest tech community & ignoring the women who’ve laid the groundwork: SIVACRACY.NET: Siva Vaidhyanathan’s Weblog: Y (Chromosome) the Same Old Faces? [thanks to copyfight]

and an nyu student demonstrates to j. antonin scalia understand that the private sex practices of consenting adults ought to be, well, private. (at a Q&A at nyu, the student asked j. scalia about his position regarding Lawrence, and dissatisfied with his response, followed up with the question: “Do you sodomize your wife?”) [page 6 in the nypost and Eric Berndt, the student questioner, explaining why he did it] [thanks to copyfight AGAIN] i wonder if j. scalia got the point? or did he merely console & distract himself by feeling outraged that someone would be so rude & inappropriate? ‘you can disagree with someone’s politics, but that doesn’t give them the right to verbally assault you in public!’ does he think it would be more appropriate & less embarrassing if asked by a prosecutor or judge in a courtroom with the coercive threat of prison and/or punitive fines and/or registration on ‘sex offender’ databases behind the question? [rewritten 5/5]

5/5: oh yeah. and did i mention how curious i found the blog commentary on this incident? on so-called liberal / progressive blogs, commentary seemed largely critical. ‘He did our cause a great disservice; how dare he be so rude & uppity’ with only a small minority defending the kid. [See, e.g., daily kos 4/12] And on the right-wing blogs I read that day I saw more commentary & debate between people who thought it was rude & people who got the point about individual rights & privacy! [I will try to remember which blogs those were - maybe volokh conspiracy.]

info cases

privacy:

copyright:

  • Compaq v. Ergonome, 5th Cir., 10/5. The 5th Circuit affirmed a $2.7 million award of attorney’s fees to the alleged infringer.

    On July 11, 2001, after a seven-day trial, the jury concluded that any copying by Compaq was de minimis and constituted fair use according to 17 U.S.C. &sec; 107. The district court subsequently held that the doctrines of laches and equitable estoppel also barred Ergonome’s claim. Based on these findings, the district court awarded Compaq its attorneys’ fees of $2.7 million.

    The 5th Circuit reviewed only the fair use finding, which it affirmed. In combination with Diebold‘s DMCA 512(f) slap at silly claims, the backlash against copyright misusers’ seems to be going full speed ahead.

privacy spam

“warrenjones” [hi, warren!] sent me this fascinating anti-spy-cam spam:

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‘true name’ bill signed

Sigh. Now i know why i was feeling kinda blue today: On Wed, 9/22, Schwarzenegger signed SB1506, the so-called ‘true-name’ bill, which requires anyone putting copyrighted content on a p2p system to include their name and contact information. [Sacramento: Governor signs Internet piracy bill: E-mail address required to share movies, music online by Mark Martin & Lynda Gledhill — sfgate 9/22]. Certainly it wasn’t a surprise — this bill has been steamrollering through since early this year. But it doesn’t make my day any better.

Highlights: this line from the article:

Last week [Gov. Schwarzenegger] signed an executive order prohibiting state employees from using software designed for file sharing.

Ummm … like TCP/IP? AppleShare? The web? Might make it hard to do business …

And in related news: Donna Wentworth pointed to another recent state-law copyright case [U.S. v. Jean Martignon, 03cr1287 (SDNY 2004)]: The court struck down an anti-bootleg law because it didn’t recognize copyright terms. (Attn, Gov. Schwarzenegger: Is that the drumbeat of p-r-e-e-m-p-t-i-o-n sounding in the distance … ?)

The bill, SB1506/AB (pdf as chaptered), reads:

(more…)