Technically Legal

Technology and the law. Done right.

Technically Legal Podcast: Episode 18

Net Neutrality, ASCAP and BMI want money for iTunes 30-Second Previews, Google Demands Android Modder Take Down Software.

You can download the podcast here. If you have comments, questions, or requests, e-mail us, at

Net Neutrality

FCC chairman formally proposes net neutrality rules
All Circuits Aren’t Busy

ASCAP and BMI Want Fees

ASCAP, BMI Demanding Payment For 30 Second Previews At Web Stores
Music publishers: iTunes not paying fair share

Google Halts Andriod Developer

Google Files Cease and Desist Over Android “Hacks”
Google responds to CyanogenMod controversy

2 Comments Posted in: Podcast on September 29, 2009

David Lu!! Joins Technically Legal

We would like to welcome David Lu!!, a Ph.D. Candidate in Computer Science from Washington University, St. Louis, to the Technically Legal team!  Although David has not attended law school, he brings some excellent technical acumen to the table in additional to his strong laymen’s interest in technology related legal and policy concepts.   David will be a regular member of our weekly podcasts as well as a contributing author to the site.

In case you are wondering, the exclamation points following his surname are not entirely grammatically incorrect, but actually part his of legal name.  I’m sure there is a curious story behind the matter, but we have yet to get to the bottom of it.   He will have a heck of a time explaining this to a U.S. Senate committee someday.

Comments Off on David Lu!! Joins Technically Legal Posted in: Commentary on September 27, 2009

Is Scribd’s Filter Fair Use

As we’ve mentioned before, Scribd is being sued for copyright infringement.

In addition to the traditional claims that they don’t qualify for protection from these kinds of suits under the DMCA, the plaintiff is claiming that Scribd’s filtering technology violates copyright.

Briefly, the filter works by making a copy of every file for which they receive a takedown notice. They then compare newly uploaded files with the database in their filter. If there is a match (presumably even a substantial, but not complete match) they won’t post the file.

But in April, this kind of use was endorsed by the 4th Circuit as Fair Use. In that case, students who submitted papers to TurnItIn had their papers copied and added to a plagiarism database. The court held that TurnItIn’s use was Fair Use under the copyright act because they transformed the paper from informative to useful in detecting plagiarism. This was despite the fact that the use was commercial, and used the entire original work. Another important factor was that there is not much of a market for licensing student papers for plagiarism databases.

Similarly, Scribd’s use was transformative, and there is currently no market for licensing copyrighted works for use in copyright infringement prevention databases.

For the record, Scribd denies copying the relevant files.

1 Comment Posted in: Commentary on September 25, 2009

Technically Legal Podcast: Episode 17

Safe-harbors under the DMCA, limits on the Computer Fraud and Abuse Act, Outing Anonymous Posters in California, Google’s FCC Filing-Unredacted.

You can download the poadcast here. Please e-mail us with comments, questions, or requests.

Safe-Harbors under the DMCA

Veoh Gets Yet Another Terrific 512 Defense Win–UMG v. Veoh
UMG v. Veoh: Big Win for Online Video
Judge: Safe Harbor applies to Veoh; UMG lawsuit eviscerated
The Opinion

Limits on the Computer Fraud and Abuse Act

Ninth Circuit Holds Disloyal Computer Use Is Not A Crime
The Opinion

Outing Anonymous Posters in California

Splitting the Digital Baby: California Court Creates New Procedure for Uncovering Anonymous Commenters
The Opinion

Google’s FCC Filing-Unredacted

Google Releases Complete Google Voice App FCC Response

Comments Off on Technically Legal Podcast: Episode 17 Posted in: Podcast on September 21, 2009

Scribd Sued For Copyright Infringement

The online document sharing service is being sued for copyright infringement by none other than Kiwi Camara, the lawyer who stepped in to defend Jammie Thomas at the last minute before her recent trial.

Mr. Camara makes several claims (that we will hope to go into at some later date), but the most interesting is that by trying to prevent copyright infringement, Scibd is violating copyright.

When Scribd gets a takedown notice, they add the allegedly infringing work to a database they keep. They check newly uploaded works against the database, and reject any documents that have previously reported to be infringing.

Veoh got around that problem by creating a hash of the video file, as opposed to making a copy of it.

If one thing is becoming clear, it is that the DMCA, or copyright in general may be in need of an overhaul to catch up to technology and social norms.

1 Comment Posted in: Links on September 21, 2009

De-FUD: MA GPS Tracking Case

Not to bite the hand that feeds us, but a recent post on Slashdot about a Massachusetts GPS Tracking case got it really wrong.

The case held that GPS tracking of a car requires a warrant, which the post seems to think is an invasion of privacy. True. It is. But Massachusetts is one of only a handful of states that says you even need a warrant to slap a GPS tracker on a car. Most states, and most Federal Courts, say that it’s fine to do so without a warrant as long as the GPS device isn’t inside the car. So, Massachusetts is more protective of rights than most of the rest of the country on this issue.

Second, the post says that Justice Gants dissented. He did not. He agreed with the court, but on different grounds. The majority of the court said that putting the GPS device on a car constituted a seizure of the car under the Fourth Amendment. That because the Police were using the car for their own purposes, they needed a warrant.

Justice Gants, and two other justices, said that this constitued a search under the Fourth Amendment. In other words, that people have a reasonable expectation of privacy that their car will not be followed 24/7 by police officers. He’s also wrong.

First, the reasonable expectation of privacy isn’t from just police intervention, it’s a general reasonable expectation of privacy. Second, police *can* follow your car 24/7 without a warrant. Yes, it is more difficult than using a GPS device, but ease of the investigation doesn’t bear on whether you have a reasonable expectation of privacy there.

I’d like to be clear. I agree that putting devices on the car is a seizure under the Fourth Amendment, and should require a warrant. So I don’t disagree with the result, just the reasoning of the concurrence.

One last note: While I’m talking about this in Fourth Amendment terms, and the case technically rested on the Massachusetts Declaration of Rights, the relevants standards are unchanged (see the concurrence at page 3).

Comments Off on De-FUD: MA GPS Tracking Case Posted in: Commentary on September 18, 2009

Academics Respond to Computer Search Case

As always, the good folks at the Volokh Conspiracy, come through with the latest analysis.

Comments Off on Academics Respond to Computer Search Case Posted in: Links on September 16, 2009

Technically Legal Podcast: Episode 16

Twitter Changes their Terms of Service, a new challenge to statutory damages, Glen Beck and online defamation.

You can download the podcast here. Please e-mail us with comments, suggestions, or requests at

Twitter Changes their Terms of Service

The New TOS
The Older TOS
Twitter Says Your Tweets Belong To You

Challenge to Statutory Damages

Court rejects due process challenge to statutory damages award
The opinion

Glen Beck and Online Defamation

Can a mere domain name be defamation? Glenn Beck says yes
The allegedly defamatory website.

1 Comment Posted in: Podcast on September 14, 2009

Copyright Infringement In Action

About 9 PM EDT on Sunday the 13th, Wil Shipley, developer of Delicious Library, tweeted that an application on the iTunes App store had stolen his copyrighted images.

Wil was talking about the woodgrain background that is a prominent feature of Delicious Library. As the story progressed he found yet another application that had just taken his copyrighted .png files from his desktop app and reused them in iPhone apps.

What followed was a rather extended discussion with his fans about what he could actually do. In cases like this, cost of litigation is always weighed against potential returns.

Wil tweeted:

And at best I’d maybe get an injunction, not damages. And, really, they’re not making enough money for me to regain my losses.

He makes a good point. Even if he had registered a copyright on the images (the only way to get statutory damages, as opposed to actual damages), the company that was using his images probably did not have enough assets for him to recover whatever judgment he could win. And even if the company had money, that would all be sunk into lawyers before Wil saw a dime.

So, what’s an independent developer to do?

So I’m going to call them thieves publicly and embarrass them. Skip the lawyers, let’s go back to shaming people!

The strategy was effective. Eight hours after that last tweet, Wil posted this update:

Stolen images update: Tom from Netwalk apologized, said he didn’t know it was my texture, promised a resubmitted “MyMovies” update tonight!

There are really two important take-away messages from this story.

  1. Copying an image from someone computer’s program and using it in your own can constitute copyright infringement. If the owner of the image has registered that copyright, it can open you up to RIAA v. The People sized damages: thousands to tens of thousands of dollars per infringement. If you are selling the images, it could expose you up to jail time.
  2. There are ways other than the courts to resolve copyright disputes that leave both parties happy. Here, Wil was happy that people stopped using his intellectual property, and the people who took his images were no doubt happy that he won’t be filing suit, as he very well could do.

And, yes, these tweets were reproduced with permission.

32 Comments Posted in: Analysis on September 14, 2009

Open House at Harvard Law’s Berkman Center for Internet & Society

The Berkman Center is hosting an open house, tonight 7pm in Cambridge, MA.  Details here.  I will be attending, if you are in the area be sure to stop by!  Hope to see you there.

1 Comment Posted in: Links on September 8, 2009

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