Technically Legal

Technology and the law. Done right.

Episode 52: One Year Down

Twitter to Sell Trademarked Ad Terms, Senators Call to End Privacy Of Pre-Paid Phones, Apple v. GPL

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Twitter to Sell Trademarked Ad Terms

Twitter May Allow Competitors to Purchase Trademarks as Keywords for Sponsored Tweets

Senators Call to End Privacy of Pre-Paid Phones

Senators call for end to anonymous, prepaid cell phones

Apple v. GPL

GPL Enforcement in Apple’s App Store
More about the App Store GPL Enforcement

Comments Off Posted in: Podcast on May 31, 2010

FSF Tries to Enfore GPL on Apple’s App Store

This is a bizarre story. The Free Software Foundation (FSF) issued a press release about an unnamed third party developer who released an unnamed third party application via the iTunes App store. This unnamed program uses GPL code, and is itself a port of GNU Go. So the FSF sent a letter to Apple asking Apple to bring the App Store in complaince with the GPL.

The FSF press release also indicates that they’re in talks with the application developer for violating the GPL, but they’re also implying that Apple is somehow at fault. The FSF’s theory is that Apple, by distributing this code in a non-GPL-compliant way, is also violating the GPL.

This would probably fail under a contract theory of the GPL, because there’s no evidence that Apple knew the underlying code was subject to the GPL. However, Apple cannot claim ignorance to insulate themselves from liability for copyright infringement. The safeharbor provisions of the DMCA would provide Apple protection from liability on that front, which explains why they took the application off the store as soon as they had knowledge of the infringing nature of the product.

Update: Another good reason why Apple wouldn’t be liable for breach of contract, is that they were not a party to the contract. Unless the game had the GPL as a license agreement (unlikely), and the iPhone App approval agent clicked “OK,” the FSF would have a tough time proving that Apple was party to the GPL here. Even if all of that were true, it wouldn’t be an open and shut case.

Comments Off Posted in: Commentary on May 26, 2010

Episode 51: Auf Deutsch

Sorry for the repeats and the mistakes with this week’s podcast. This should be all fixed now.

Google WebM v. H.264, Twitter Subpoena, and MySpace Authentication

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Google WebM, Royalty Free, but Patent Suit Free?

Google’s WebM video format might not be so free after all, says MPEG-LA
The first in-depth technical analysis of VP8

PA Atty. Gen. Sends Twitter a Subpoena

Pennsylvania Attorney General Tries to Unmask Twitter Critics
Pennsylvania AG Dropping Twitter Subpoena

MySpace Authentication Evidence

Opinions

Comments Off Posted in: Podcast on May 25, 2010

Twitter May Sell Trademarked Terms to Competitors for Ads

Twitter’s Promoted Tweets program is still in the planning stages, but they haven’t ruled out selling the search term “Nike” to Reebok. Court after court have found that this isn’t trademark infringement, but Google gets sued regularly for selling trademarked terms to competitors. Twitter, if they go down this path, could expect a similar torrent of litigation.

Comments Off Posted in: Links on May 24, 2010

FTC OKs Google’s AdMob Acquisition

The FTC announced today that it had approved Google’s acquisition of AdMob, an advertising service for mobile devices. From the FTC’s press release:

[A]lthough the combination of the two leading mobile advertising networks raised serious antitrust issues, the agency’s concerns ultimately were overshadowed by recent developments in the market, most notably a move by Apple Computer Inc. – the maker of the iPhone – to launch its own, competing mobile ad network. In addition, a number of firms appear to be developing or acquiring smartphone platforms to better compete against Apple’s iPhone and Google’s Android, and these firms would have a strong incentive to facilitate competition among mobile advertising networks.

I can’t recall a time when an announced, but yet unreleased, product or service has stopped the FTC from trying to block an acquisition. But, in reality, by the time this would have been litigated, the market probably would have changed enough to make the antitrust concerns moot.

Comments Off Posted in: Links on May 21, 2010

Massachusetts Supreme Judicial Court: MySpace Messages Not Authenticated

In a case released today, the Massachusetts Supreme Judicical Court, the highest court in the Commonwealth, held that MySpace messages, sent from the account of a criminal defendant’s brother, were not admissible against him because they were not properly authenticated. To view the opinion, click here, then on “Opinions” under the Supreme Judicial Court headline. Finally, click on “Commonwealth v. Williams.” This will be made easier this afternoon.

The defendant’s brother sent a potential witness four messages urging her not to testify against the defendant. The Court said the messages should have been excluded because they were not authenticated, in other words, the jury had no way of knowing who wrote them.

The Court analogized it to authenticating a phone call. It is not enough to merely state that the witness recieved a phone call from a person. The witness must testify that they were familiar with the person’s voice, and that the voice on the other end of the line was consistent with the person’s voice.

Here, neither the witness, nor anyone else, testified to how secure MySpace is, and whether someone else could have sent the messages.

Ultimately, the Court held that the error of allowing the messages into evidence did not require a reversal of convictions.

Comments Off Posted in: Analysis on May 21, 2010

Psystar Files Appeal to Ninth Circuit

According to Groklaw, Psystar has filed their appeal to the Ninth Circuit via mail under seal.

I have to admit, I’m starting to feel a bit lethargic when it comes to the progression of the Apple v. Psystar case(s).   If you’re lost, check out the full docket at Groklaw.  This all relates back to the Psystar’s 2008 sale of non-Apple-labeled computers, fully loaded with Apple’s OS X.  This was brazenly done in (apparent) violation of Apple’s End-User License Agreement (“EULA”) which prohibits third-party installations to non-Apple hardware.  Apple wasn’t as excited as the rest of the technology blogosphere and filed suit in the Northern District of California.

Psystar brought up a number of interesting legal arguments about the enforceability of EULAs, in spite of well established case law contrary to their theories, and took some heavy damage in the District Court.  The result was a partial settlement (for $2.7M), a permanent injunction, and a summary judgment granted in favor of Apple.

Now enters the appeal.  Since the opening brief is filed under seal, we don’t know what they are planning on arguing, and we won’t have any idea if the Ninth Circuit will even hear the case for some period of time.

Hat tips (and belated birthday wishes) go to Groklaw for their extensive coverage on all things Psystar.

Comments Off Posted in: Links on May 18, 2010

Episode 50: Make Lime-aid out of LimeWire

The iPhone Search Warrant, Google Goofs with WiFi Data, and LimeWire held liable for Copyright infringement.

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iPhone Search Warrant

iPhone Investigation Documents Ordered Unsealed (Update1)
Roommate’s Tip Led Cops to iPhone Finder
The Warrant Application

Google Goofs with WiFi Data Privacy

Google Says It Collected Private Data by Mistake
WiFi data collection: An update

LimeWire held liable for Copyright Infringement

LimeWire Likely To Shut Down Soon
CopyWrong! Kimba Wood Squeezes the Juice Out of Limewire
The Opinion

Comments Off Posted in: Podcast on May 17, 2010

No Bilski Decision from SCOTUS Yet

At Technically Legal we’re all waiting with bated breath for the Supreme Court’s ruling on In re Bilski.  The SCOTUS Blog is covering the release of opinions from the Court on their website, but today wasn’t the day for Bilski. <insert anxious IP lawyer faces here>

The ruling may entirely change the doctrinal scope of  “patentable methods or processes”.  Although the Bilski case deals with controversial business method patents, the doctrines at issues will affect a wide range of other patents, including the ability to patent computer software.   If you haven’t been following the case, the issues stem from the Federal Circuit’s recent adoption of the “machine or transformation test” which was developed in the Bilski case in 2008.

We are now in the pipeline for Supreme Court decisions.   The Supreme Court is in session from early October until the end of June, across a calendar year (i.e., October 2009 – June 2010).  Oral arguments for Bilski were heard before the Supreme Court last November and a decision is expected any week now.  According to the SCOTUS Blog’s calendar for May and June, which tracks events at the D.C.-based Court, rulings are expected to be released on the following Mondays:

May 17 & 24th

June 7, 14, 21, & 28th

Assuming this time line is correct, we are anticipating the Bilski ruling on one of those days.  Of course,  we’ll provide links, coverage and analysis on our blog and podcast as soon as the ruling is released.  Stay tuned until then.

Comments Off Posted in: Commentary on May 17, 2010

New Reports on Jason Chen/Gizmodo/iPhone Investigation

Reports are floating around today on Mercury News.com, CNET, and other sites that Judge Cretan, from the San Mateo County Superior court, has unsealed affidavits related to the issuance of the search warrant executed on Gizmodo Journalist, Jason Chen, in late April.   According to CNET’s read on the affidavits, Apple CEO, Steve Jobs, was (apparently) personally involved in efforts to the return of the (alleged) iPhone 4G.  Other interesting tidbits were also revealed through the newly released documents (check out the above-linked articles).

Questions still remain about the validity of the search warrant execution on Chen’s personal residence.  As of this post, no charges have been filed against Chen in relation to the investigation.

Comments Off Posted in: Links on May 14, 2010

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