Technically Legal

Technology and the law. Done right.

RIAA Offers Thomas-Rasset Settlement, T-R Rejects

The RIAA offered to settle Jammie Thomas-Rasset’s case for $25,000 this afternoon. An offer which Thomas-Rasset quickly rejected. From her lawyers:

[A]s our response makes clear, Jammie is standing on principle here, and will not accede to payment demands that the RIAA is making thru an unconstitutional statutory scheme (that they lobbied for the creation of) and we will ride this train to it’s appellate end no matter how many future remittiturs are rejected.

At this point, any amount that the RIAA is likely to collect, through the actual amount imposed, or through bankruptcy proceedings of Thomas-Rasset (at the end of all the litigation and appeals), is going to be far less than they’ve paid their lawyers for the endless motions and two trials. There’s no question in my mind that this litigation was a money loser for the RIAA. Removing DRM from MP3s probably converted more people to music buyers than the threat of litigation.

Comments Off Posted in: Commentary on January 27, 2010

Podcast 34: Some Relation

FBI Spying, Jammie Thomas gets a Break, and Joel Tenenbaum Tries to Reduce his Verdict.

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

FBI Takes Phone Records

FBI broke law for years in phone record searches
The statute

Jammie Thomas-Rasset Gets a Break

The opinion

Joel Tenenbaum Asks for a Break

Department of Justice defends constitutionality of $675,000 award against Tenenbaum; p2p user caused ‘great public harm’

UPDATE: We’ve switched to a new recording system that results in a better quality, but for some reason, lower volume podcast. We’re aware of this, and looking in to it. In the meantime, if you have iTunes, turn the volume adjust on the mp3 to 100%, or download it directly from the website. Either of these seem to help solve the problem.

Comments Off Posted in: Podcast on January 25, 2010

We didn’t consider that

In Podcast 34 (to be released later tonight), we talked about the order lowering damages in the Jammie Thomas-Rasset case. As you will hear, we discussed whether the RIAA would challenge the order. What we failed to talk about is whether Jammie Thomas-Rasset would challenge the order. The judge’s ruling, which reduced the amount Jammie Thomas-Rasset owed to 1/36th the original verdict is still too high in the view of her lawyer. The main issue seems to be that the judge didn’t squarely decide whether or not statutory damages here are unconstitutional. A topic we address on this week’s podcast.

Comments Off Posted in: Commentary on January 25, 2010

Damages Reduced for Jammie Thomas-Rasset

The judge in the Jammie Thomas-Rasset case just reduced the damages owed from $1.92 million to $54,000. The RIAA can now choose to accept the lower damages, or schedule a new trial on the issue of damages.

We will certainly discuss this more, either in a post or podcast, but we wanted to get this up now.

1 Comment Posted in: Links on January 22, 2010

The 4th Amendment, Privacy, and it’s Application to Technology

Attorney, blogger and law professor, Eric Goldman, posted an excellent writeup today on several recent cases concerning the 4th Amendment “right to privacy” in state supreme court cases.

While some laws have been easily applied our new technology-laden world, others either provide complications or simply have not yet been applied–making the legal significance of a piece technology unknown.  In his post, Goldman points out several recent decisions concerning the application (or potential application) of 4th Amendment privacy rights to technology in both civil and criminal litigation, including:  cell phone and text message privacy; expectations of privacy in documents or data held by a third party; and GPS tracking devices and a right to privacy.  Read his post for the full recap.

You might not think the particularities of search and seizure law matter much to you (I don’t commit crimes anyways! Why should I care what the police can search?!).  However, you may find the fundamental concepts which support these laws today might influence future policies that affects our electronic data and online activity privacy rights–especially when it comes to how online service providers can handle our private information, whether it’s demographics, physical mailing address, phone numbers, e-mail, social security numbers, and the list goes on.   It’s very much a subject worth following as it develops.

Basic Background of the 4th Amendment “Right to Privacy”

If you are not already a lawyer, law student, or US constitutional aficionado, you probably recall the 4th Amendment from your high school (or college) civics classes.  Embodied as part of the Bill of Rights, the 4thAmendment affords a right to the “people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.”  Additionally, the text provides a method for authorities to conduct what would be otherwise “unreasonable searches and seizures” if they obtain a warrant, “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ”   Side note: the 4th Amendment applies to the States through the 14th Amendment, hence why we see _state_ courts grappling with the application of the U.S. Constitution to local matters.  (See Mapp v. Ohio, 367 U.S. 643 (1960)).

You’ll notice there is no mention of the word “privacy” within this Amendment, but we’ve all come to know this section of the Constitution to afford a general right to privacy.  In fact, the modern notion of a “right to privacy” was articulated  into both criminal and civil law through judicial decisions interpreting the meaning of the textual language of the 4th Amendment.

The 4th Amendment is commonly invoked in criminal matters.  Even if you’re not especially familiar with criminal law, you probably know that a police office can’t just walk into your home and seize a piece of evidence.  Absent certain exigent circumstances, an officer would need to have a warrant to conduct such a search for contraband or evidence.  Similarly, if you are stopped on the street by an officer, absent probable cause, if that you have not committed a crime witnessed by the officer, you cannot be arrested nor have your purse or backpack searched without a warrant.  Note here that the concept of “seizure” also extends to a person– if you are arrested, you are effectively seized–in addition to search of belongings.   In the law, this prohibition on search and seizure was articulated into a test which is still applied today in Katz v. United States, 389 U.S. 347 (1967).  The right extends to tangible and intangible property where a person has an ” reasonable expectation of privacy”– the expectation must be one that is generally accepted by society, not subjectively by an individual.  E.g.,  just because I consider the open trunk area of my SUV which is visible to to the public to be a private area, doesn’t automatically deem it so.

The effect of the 4th Amendment is profound in criminal proceedings.  Importantly, a rule known as the “exclusionary rule” prohibits the introduction of unconstitutionally obtained evidence into the record on trial (a jury should never see it).  Thus if that “expectation of privacy” was violated when an officer searched an individual, in most circumstances it will not be permitted into evidence at trial.  Of course, like with almost everything in the law, there are a number of exceptions and the law is incredibly nuanced.

Beyond criminal proceedings, the notion of an “right to privacy”  is a subject in civil law too.  A number of torts recognized in the U.S. legal system which have evolved from the “expectation of privacy” concept.  In other words, should a person find themselves the victim of a civil privacy injury,  they can sue another person (or legal entity) for damages and sometimes equitable relief (e.g., an injunction).   The most universally recognized throughout the 50 states are:  “intrusion on solitude” (e.g., physical intrusions on private areas); “false light” (e.g., wrongly portraying someone in a news report on purpose, or defaming someone); “public disclosure of private facts” (e.g., publishing or disseminating certain private facts about a person); and, “misappropriate on likeness” (e.g., using a person’s picture in a commercial advertisement without permission).   A number of other laws governing privacy rights have also been legislated, including the handling of electronic data (see Electronic Communications Privacy Act and the Stored Communications Act) and certain protections on sensitive health care information (HIPAA).

Both from the Constitutional and civil standpoints, these laws regulate the everyday privacy we enjoy and sometimes take for granted.  As societal norms evolve, it’s important to ensure the law properly reflects what we think of as privacy.

Comments Off Posted in: Commentary on January 19, 2010

Podcast 33: Bounty Hunters

RIAA antitrust suit revived, Valleywag puts bounty on iSlate Rumors, Apple Patent and prior art.

You can download the podcast, or subscribe to the feed. Feel free to e-mail us with suggestions, question, or comments.

2nd Circuit Revives Antitrust Suit

U.S. court revives antitrust suit on music downloads
The Opinion

Valleyway’s Bounty on iSlate Rumors

Valleywag’s $100,000 Bounty For Apple Tablet Leaks May Face Legal Repercussions
Apple C&Ds Gawker over bounty on tablet info

Apple Patent and Priority

Apple tries for ‘adding a contact to a home screen’ patent, but Android beat them to the punch
ADDING A CONTACT TO A HOME SCREEN (The patent)

Comments Off Posted in: Podcast on January 18, 2010

Illegal Wiretapping on Boston’s Streets

Boing Boing reported about an epidemic of wiretapping on the streets of Boston.

Simon Glik, a lawyer, was walking down Tremont Street in Boston when he saw three police officers struggling to extract a plastic bag from a teenager’s mouth. Thinking their force seemed excessive for a drug arrest, Glik pulled out his cellphone and began recording.
Within minutes, Glik said, he was in handcuffs.

The police arrested Glik for violating G. L. c. 272, s. 99, the Massachusetts wiretap act. It’s not the first arrest of its kind.

The act generally prohibits secret interception of oral communication by means of an electronic device. In plain english, you can’t record a conversation without the other party knowing that you’re recording. You don’t need their explicit permission, but they can also choose to stop talking to you once you tell them you’re recording. The act has a lot of exceptions, but there is no exception for recording police officers.

There is a silver lining here, in order to violate the law, the recording has to be secret. There is nothing secret about filming a police officer with a camcorder. And based on this case, the officer had a pretty good idea that the cellphone was recording both video and sound. The police officer saw Attorney Glik recording, clearing understood that he was capturing the incident on his phone, and asked if the phone could record sound. It’s a tough argument to make that this record was in any way secret. So, in the end, it boils down to police trying to stop people from filming alleged police misconduct through bullying.

Comments Off Posted in: Analysis on January 16, 2010

Psystar Appeals

Psystar has appealed the summary judgment for Apple and permanent injunction. It will be a while before we have briefs, and the case won’t be heard, until much later in the year. We’ll follow it, as we have since the beginning.

Comments Off Posted in: Links on January 15, 2010

Death to MS Word?: Microsoft Loses i4i Appeal in Patent Infringement Case

On December 22, 2009, the Federal Circuit ruled all issues on appeal in favor of i4i.  The Federal Circuit reestablished the effective date of the injunction to January 11, 2010.  Microsoft is left with few avenues in terms of the litigation.  They can appeal to the Federal Circuit (again) and ask for a rehearing en banc.  Another viable option maybe to appeal the Circuit court’s ruling to the Supreme Court.  Finally, they can always wait and see what happens will the Bilski case, which was argued before SCOTUS earlier this fall, and hope the ruling affects the underlying validity of i4i’s patent (not an attractive option).

We covered the first part of this saga on our podcast back in August.  In short, i4i Limited Partnership sued the 800 lb gorilla, Microsoft, for patent infringement based on its Patent # 5,787,449.  The patent claims “a system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations.”   The target of i4i’s litigation was Microsoft’s XML document editing software which is integrated into Microsoft Word (primarily affecting Word 2003 and 2007).   More specifically, i4i claimed Microsoft willfully infringed the ‘449 patent.  After a jury found Microsoft guilty of infringement, the district court awarded i4i $200M for the infringement, an additional $40M because the infringement was willful, and pre- and post-judgment interest.  Ouch.

Here’s the kicker though.  In August, i4i filed a post-judgment motion seeking to permanently enjoin Microsoft from supporting, using, or selling editions of MS Word that contained the infringing technology.  The motion was granted; and, Microsoft was dealt a serious blow to the gut.  This sparked a fury of speculation in the blogopshere and media as everyone tried to figure out the fate of MS Word.  As you might imagine, Microsoft did not lay down in defeat– instead they filed an emergency motion to stay the injunction.  The stay was granted and Microsoft filed an appeal before the Federal Circuit challenging the ruling, arguing the District Judge erroneously construed a claim– in  lay-speak, Microsoft argued that the Judge incorrectly applied meaning to a portion of the invention which made the patent broader than what was actually claimed.  Additionally, Microsoft argued that the patent should be invalidated and injunction lifted through other precedent (KSR and EBAY) and pandered about with some other evidentiary arguments that occurred during the trial.

Most importantly, the injunction became effective this week, and Microsoft was forced to comply with it. Since the appellate decision, sources are reporting that Microsoft has indeed made changes to the software to comply with the ruling.  The changes will apparently allow Microsoft to continue selling versions of Word without violating the injunction.  Fear not!  Word is here to stay– in some form.  No word yet if it is technically feasible for Microsoft to redevelop the XML editor in a way which prevents them from violating the ‘449 patent.  However, I suspect Microsoft will do something to reincorporate the lost XML functionality back into future versions of Word.

Something that I have not seen covered on other blogs is how this injunction is affecting Microsoft’s corporate clients.  I’ve already received  a handful of phone calls from friends and even a family member asking about the Federal Circuit’s ruling.  Each of these people are employed at the executive or senior executive levels of Fortune 500 companies and all expressed concern about how the ruling was going to affect their company’s future revenue streams.  Undoubtedly, a large number of companies who develop products that depend on certain functionality (like XML manipulation) or proprietary file formats (DOCX and DOCM come to mind) might have just been hurt in a previously unanticipated way.  Depending on what Microsoft changes, this might end up being the focus of more lawsuits from large corporate licensees.  On a brighter note, maybe the litigation will turn around the economy? <kidding>

Stay tuned for more updates.  I’m sure they are coming.

Comments Off Posted in: Commentary on January 14, 2010

SCOTUS Kills Prop. 8 Trial Broadcast

In a 5-4 decision the Supreme Court said that the Prop 8 trial could not be broadcast. The gist of the opinion is that there are proper ways to make new rules for the court that would allow broadcast, and those rules weren’t followed here. Much more at the link above.

Comments Off Posted in: Links on January 14, 2010

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