Technically Legal

Technology and the law. Done right.

Episode 115: Podcast Revived

It’s great to be back!  In this episode, we return with a new co-host, Andy Sellars, who will be joining us on future episodes.  The three of us discuss (1) the Stop Online Privacy Act (SOPA), civil forfeiture law, similar legislative developments, and (2) the systematic international dismantling of Megaupload and it’s top executives.

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

The Stop Online Privacy Act

Megaupload Takedown

Posted in: Podcast by David O'Brien.
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Podcast Revival

Last month, I mentioned that we will be bringing back the podcast.  I’m excited to announce that, in the next two weeks, we hope to publish our first show since going on hiatus.   Dominik and I will be joined by Andy Sellars, a close colleague and a fellow at the Berkman Center.  We hope Andy will continue to join us on episodes as we move forward.

A few notes about the new show format we’ll be using.  Rather than publishing podcasts weekly, we are going to move to a less-frequent, less-structured schedule.  Frequency will somewhat depend on the news cycle, but I would expect 1-2 episodes per month, at least.  Additionally, instead of covering 2-3 stories, we will likely discuss 1-2 stories per episode but keep the show length around 30-45 minutes.  The idea here is to elicit deeper conversations on interesting topics while avoiding fluffy coverage.

As always, we welcome your comments and suggestions about the show and the new format: e-mail us at podcast[--at--]


Posted in: Uncategorized by David O'Brien.

Things to come…

You’ve probably noticed that earlier this fall we took an abrupt hiatus that coincided with some changes on our website.  Unfortunately, one of our co-bloggers accepted a new position at a firm which, as a condition to his acceptance, politely asked him to remove public commentary on legal issues.  This isn’t an uncommon request for law firms or employers to make, as it’s important for lawyers to observe the rules of professional conduct and for law firms to maintain strong relationships with their clients.  Together we decided it best to comply with the request, rethink the basic structure of our site, and bid our co-founder good luck on his next adventure.  For the last two and a half years this site has been (and continues to be) a hobby that stands apart from our professional careers — it was an easy, but sad, decision to make.

This event also coincided with a sudden uptick of work in my own professional life, including the Digital Public Library of America (DPLA) launch in October and a myriad of other interesting research projects (some of which I hope to share in the coming months).  The workload made it difficult to think about, let alone attempt, a format transition on the blog or podcast; and so, the site has been fairly dormant for the last several months.

There is, however,  some good news to share.  Since going on hiatus I’ve received a number of emails from friends and colleagues, including a handful of fellows from the Berkman Center, who want to see and participate on some new episodes of the podcast.  While there are still a number of details to hammer out, like scope and frequency among other things, I’m hopeful that we’ll bring back the show in some form in early 2012, shortly after the holidays.

Thanks for tuning in!

Posted in: Podcast by David O'Brien.
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Re: Deletion of Older Posts


Over the next few days you’ll notice that a large amount of old content will be taken down. We apologize for the inconvenience. It is, however, necessary. The site will continue on, albeit in a modified fashion. Podcasts will be less frequent, but there will hopefully be more substantive posts.
Thank you for your understanding.

Posted in: Uncategorized by TechnicallyLegal.
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Episode 109: It’s not exactly generic

ISPs sign agreement with content owners, Apple loses first round of App Store fight

Please download the podcast or subscribe to the feed.  Feel free to e-mail us with comments and suggestions.

ISPs agree to police their subscribers use of copyrighted content (sort of)

Ars Technica Coverage

The Official Agreement (PDF)

Apple loses motion for preliminary injunction over “App Store” mark

The Opinion (via Scrib’d)

Eric Goldman’s thoughts


Posted in: Podcast by David O'Brien.
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Weekly Links: June 12-18, 2011

Sorry for the lapse in “weekly links” posting, it’s busy time of the year (with vacations, among other things)!  A few interesting legal developments last week in the technology world.  Here’s what we have been thinking about:

Two 3d circuit decisions on school punishment cases involving MySpace. [Layshock v. Hermitage School (2011)] [JS v. Blue Mountain School District (2011)]

1st circuit hears a case on the right to record in public (and a MA law). [via ACLU]

A DHS-seized domain name owner fights back.  [via EFF]

NYT and OpinionLab seek declaratory judgment in Lodsys patent dispute. [via Engadget]

EFF and Fenwick win dismissal in Righthaven v. Democratic underground, for lack of standing, judge orders Righthaven to explain why they shouldn’t be sanctioned.  (ouch) [via EFF]

Is Sears offering a Android-based iPhone clone?  Or just interested in a lawsuit? [via CrunchGear]

Lawsuit filed against Apple over “iBooks” trademark by New York publisher.  [via Bloomberg]

Posted in: Weekly Links by David O'Brien.
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Second circuit reverses hot news misappropriation case

The second circuit issued an opinion in Barclays v. today, reversing the district court’s previous ruling in favor of the plaintiffs.  The case has been closely watched by content-owners and copyright attorneys since 2010, after the district court enjoined the defendants from publishing the plaintiffs’ financial recommendations to clients until 30 minutes after the securities market opened.

I’ve only had a chance to skim the opinion, but it appears that the court found that the misappropriation claim was federally preempted by the Copyright Act (see 17 USC § 301).  It’s worth noting that while this case is important, the facts seem to play a decisive role and the court (unsurprisingly) didn’t opine on the first amendment issues.

For background:  The claim in the lawsuit was that had misappropriated “hot news”– which may be (loosely) described as free-riding off news that was “gathered at the cost of enterprise, organization, skill, labor, and money” of another.  The hot news doctrine has a long history that dates back to the early 20th Century as a state common law distinct from copyright infringement.  This is important to most content owners because:  (1) copyright law protects expression, and generally affords little, if any, protection to factual information (though it still protects the expression of factual information), (2) even when expression is unlawfully reproduced,  the fair use doctrine may protect certain uses of the expression.  In other words: where copyright law doesn’t provide a legal relief, a state-recognized exclusive property right to news might.  The right to hot news was widely recognized until the enactment of the “Copyright Act of 1976″ (the last major overhaul of the Act) in which Congress added an express preemption provision (under 17 USC § 301) that severely limits the ability of state law to mimic rights granted by the Copyright Act.  It’s still recognized, but under limited circumstances.


Posted in: Commentary by David O'Brien.
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Apple files motion to intervene in Lodsys patent suits against iOS developers

Today, Apple filed a motion to intervene under FRCP 24 in the Lodsys patent suits which have been threaten/filed against seven iOS developers who refused to pay licensing fees for Lodsys’ patent no.’s 7,222,078 and 7,620,565.

Over the  past several weeks, Lodsys has been criticized in the tech media for claiming that the developers are required to obtain licenses from Lodsys for utilizing in-app purchasing technologies.  This claim was widely covered by the tech media because the seven developers at issue were, for the most part, very small players in the appdev world, and because Apple already licenses this technology for iOS.  Lodsys, on the other hand, believes that licenses must be obtained from both Apple and the developers.  On June 1, Lodsys sued the developers after Apple sent a letter to Lodsys asking them to play nice.

[Apple's motion to intervene]

Posted in: Links by David O'Brien.
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Supreme Court rejects Microsoft’s arguments in i4i case

In case you haven’t already heard…

Yesterday, the Supreme Court issued an opinion in the Microsoft v. i4i case which has been one of the most closely watched cases on the Supreme Court’s docket during this term.  The result was a unanimous 8-0 victory (Justice Roberts recused himself, because he owns Microsoft stock) for i4i.  This means that the burden a challenger must meet to successfully defend an allegation of patent infringement under § 282 (on grounds that the patent is invalid) will remain the same: the Court affirmed the “clear and convincing evidence” standard, which the Federal Circuit has used since 1982, rather than the lower  “preponderance of the evidence”  (in plain English: “more likely invalid than not”) standard Microsoft argued for  — and Microsoft will still be on the hook for that ~$300M verdict they owe.

Patently-O has an excellent post describing the ruling.  There is also a strong likelihood we will talk about the opinion during this week’s podcast as well.

Posted in: Links by David O'Brien.
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Weekly Links: May 15-21, 2011

Last week more stories hit the wire on another proposed legislation on digital privacy and security — which seems like the “hot button” issue of the year for legislators, so far.  Also some interesting news last week from the company who has been accused of being a patent troll for warning iOS developers that they need licenses for “in-app purchasing.”  Here are links to the stories that have been on our radar over the last seven days.  Feel free to add more that we might have missed in the comments.

Lodsys says Apple (and others) have already obtained licenses for in-app purchasing, suggests developers should also.  [via the Lodsys blog]

Proposed California bill might give parents access to their children’s Facebook pages. [via TechCrunch]

Proposed federal bill (S.978) seeks to penalize illicit television streaming as a felony offense. [via Ars Technica]

Chris Soghoian explains mismatch between DropBox’s crypto marketing and deduplication practices.  Also files a consumer compliant with the FTC. [via Slight Paranoia (Soghoian's blog)] [FTC complaint (via Scrib'd)]

Winklevosses appealing decision regarding their settlement award to the Supreme Court. [via CNET]

Verizon sues the FCC, for changing “roaming data fees” rules. [via Ars Technica]

The EFF *actually* likes a proposed e-privacy bill for once(!). [via EFF Deeplinks]

Remember Terry Childs? The “rogue” sysadmin in San Fran? A judge has ordered Childs to pay $15M in restitution. [via Slashdot]

17-year-old Creator of OMGfacts twitter stream files lawsuit over trademark and contract issues. [via Technology and Marketing Law Blog]

Posted in: Weekly Links by David O'Brien.
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