Technically Legal

This afternoon Planet Money, a killer NPR podcast, posted this plea on its twitter account:

We’re looking for a photo of the “Hotel California” album that we can legally use on the blog. Anyone have a copy they could photo for us?

They were rightly concerned that they couldn’t use someone else’s photo without their permission. What they missed is that it still would have been infringement t o use a licensed photo of the cover of Hotel California. They wouldn’t be infringing the photographers rights. However, the Eagles, their label, or an artist somewhere, owns the copyright in the cover of the Hotel California record. Just taking a photograph of something doesn’t get rid of the copyright in the original work, as the US Postal Service learned earlier this month.

We don’t want to claim any responsibility for this, but they did not end up using the cover of Hotel California for the final post.

Comments Off Posted in: Analysis on March 15, 2010

Recently Mac developer and Somerville native Daniel Jalkut had his iPhone stolen from a locker room. Daniel used MobileMe, an Apple service, to locate his phone in order to get it back. Then, he called an MIT police officer to report the crime, and presumably the street address of the alleged thieves.

This got me thinking, it’s perfectly legal for Daniel to hand all this information over to the police. But what if he were to hand over the password to his MobileMe Account, so the police could track the phone in real time, right down to the house where the thieves were keeping it? Would the police be able to do that? What if the police, with Daniel right next to them, asked him to open up MobileMe and find the phone.

Oddly, under current Supreme Court law, I think this would be an illegal search under the Fourth Amendment.

The case is United States v. Karo. Briefly, the case involved a defendant ordering 50 gallons of ether, used to extract cocaine from clothing in which it was smuggled. The DEA caught wind of this of put a tracking device in the ether barrel. They then used the tracking device to pinpoint the exact house where the ether was being kept. Using that information, they obtained a warrant, searched the house, and bused the drug dealers.

The problem the Supreme Court had with this (in a starkly divided opinion), was that the DEA was using this electronic device to do a search that they never would have been able to do without a warrant. They could have easily followed the car from where they picked up the ether to the house, but the police would have risked detection. Instead, they used this device to essentially search the house from the outside.

You run into a similar problem with the iPhone. Daniel could print out the information from MobileMe, give it to the police with a statement about how he got it, and they could get a warrant from that, and that would probably be A-OK (assuming you could explain this all to the judge who was reviewing the motion to suppress). However, as soon as the police take over the MobileMe account, or even direct Daniel to check it, you run the risk of violating the thieves’ right to be free of unreasonable searches or seizures.

You don’t run in to this problem with LoJack or OnStar, because those cars are on the road, and you don’t have a reasonable expectation of privacy in the location of a car if it’s on the street. But here, without a search warrant the police wouldn’t be able to tell if the iPhone was in your house, and there is a strong argument that the police using the Find My Phone feature would violate the Constitution.

1 Comment Posted in: Analysis on February 9, 2010

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

Today on TechDirt, Mike Masnick wrote a post titled: Supreme Court Considers Case Over Using Copyright Law To Block Import Of Gray Market Goods. Mike is usally pretty good about getting the law right, but we thought this could use a little clarification.

The case (PDF of the opinion) was decided by the 9th Circuit in September 2008. In involves whether Omega, the watch company, can use US Copyright Law to stop the importing of grey market goods – products that are made by Omega, but not imported using a certified Omega importer.

After the 9th Circuit decision, Costco peititioned the Supreme Court to hear the case. Right now the Supreme Court hasn’t decided to hear the case. What they have done is ask the US Government (through the Solicitor General) to weigh in on whether they should hear the case. The case docket doesn’t indicate that the Solicitor General has submitted a brief yet.

So, currently it’s up in the air as to whether or not the Supreme Court will hear the case.

Comments Off Posted in: Analysis, Links on January 7, 2010

A 22 year-old Chicago woman was arrested and charged with a felony after she recorded bits of a birthday party in a theater playing “New Moon.”

The woman was recording parts of her sister’s surprise party using the video recording function on her digital camera. She also recorded approximately four minutes of the movie before she was spotted by a theater employee and arrested by police.

The woman was charged with “Criminal use of a motion picture exhibition facility,” a Class 4 felony that carries up to three years in prison. The statute reads:

“Any person, where a motion picture is being exhibited, who knowingly operates an audiovisual recording function of a device without the consent of the owner or lessee of that exhibition facility and of the licensor of the motion picture being exhibited is guilty of criminal use of a motion picture exhibition facility.”

What’s shocking about this is that by one reading, there is nothing in the statute even requires you to have filmed any part of the movie. It’s totally feasible to commit a felony by recording only seconds of seats you’re about to sit in. On the other hand, you could (and in my view should) construe “where a motion picture is being exhibited” to mean that the recording has to be contemporaneous with the movie being shown. However, even that doesn’t require that you actually film any of the movie to be guilty.

The statute also allows the movie theater to detain anyone they “in good faith believe[] to have violated this Section while awaiting the arrival of law enforcement authorities.” The detainee can only recover damages if they show “by clear and convincing evidence that such measures were manifestly unreasonable or the period of detention was unreasonably long.”

And, yes this statute also prohibits recording people in a BestBuy, unless you are only operating the recording function to “demonstrate the use of that device for sales or display purposes.” Again, there is no exception for not actually recording the movie.

3 Comments Posted in: Analysis on December 3, 2009

Following up on our discussion about bringing patent suits in the Eastern District (E.D.) of Texas on Podcast 27, the Federal Circuit (the Federal Appeals court that hears all patent cases) issued a ruling today ordering the E.D. Texas to move a case filed there to the Eastern District of North Carolina.

The court’s reasoning was that there was virtually no connection between the suit and the E.D. Texas, and that the E.D. of North Carolina was “clearly more convenient.” This is in line with a growing number of cases that are not looking favorably on the practice of what’s called forum shopping, or bringing your law suit in the place that’s most favorable to your side, but not best for getting witnesses, or administering justice. It’s also another example of the courts stepping in to fix a problem where Congress has failed to act (with regard to the patent reform act, we mentioned in the podcast).

Comments Off Posted in: Analysis, Links on December 2, 2009

Recently, Nokia filed a patent infringement suit against Apple, alleging that the iPhone infringes on Nokia patents.

In a recent SEC filing, Apple summarized the lawsuit, and promised that, “The Company intends to defend the case vigorously.”

What does that really mean? Sadly, little. It’s a public filing, and, as such, the company pretty much has to say that they will put on a vigorous defense. That being said, unless the case is a slam dunk against Apple, and that the patents are clearly valid, I think we can expect Apple to not given in easily.

Comments Off Posted in: Analysis, Links on October 30, 2009

The EFF is reporting that a court has ruled that neither cellphone users, nor the carriers, are liable for copyright infringement when the phone rings in public.

ASCAP argued that playing the ringtone in public constituted a “public performance” under the copyright act. The judge found that the performance was exempt from having to pay royalties because the “performance” wasn’t for commercial gain.

In an interesting twist for the ASCAP/BMI v. Apple dispute, the judge in this case also found that transmitting the ringtone to one person does not constitute a public performance. It still would constitute a reproduction, though. Because the 30 second song clips on iTunes are only transmitted to one person at a time, they would also not count as public performances under this interpretation.

Comments Off Posted in: Analysis, Links on October 15, 2009

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

This week Twitter was sued for patent infringement. The gist of the law suit is that the plaintiff, TechRadium Inc. owns three patents on a system to have a message from one author be sent to many people, in different forms (including e-mail, SMS, and in plain text).

The Complaint

You can read the complaint here. The first thing I noticed is that there is arguably a claim to have the lawsuit dismissed. Under two recent precedents, Iqbal and Twombly, the Supreme Court has heightened the requirement for properly bringing a lawsuit. It used to be sufficient for the plaintiff to state that it owned the patents, and that the defendant infringed the patents. Under the recent cases, the plaintiff may have to be more specific about what activities are infringing the patent and how, when, and by whom they are being infringed.

Now, some very high profile lawyers (including Judge Posner, whom we’ve mentioned before) question the reach of these decisions, so it’s by no means open and shut. Also, the Federal Circuit, the court that hears all patent appeals, said that Twombly doesn’t apply to patent cases. But the validity of that ruling is in questions after the Supreme Court extended the Twombly standard to other cases in Iqbal.

The First Patent

TechRadium sued for infringement of three patents.

The first patent, number 7,130,389 (The ’389 Patent) claims “[a] digital notification and response system.” This system has two parts: (1) “an administrator interface for preparing and transmitting a message to at least one user contact device” and (2) “a dynamic information database for storing the message.”

Where this claim will succeed or fail is in the dynamic information database. The patent defines that database as comprising of: (1) user contact data, with contact device information and priority order for contacting them, (2) user selected grouping information, with at least one group associated with each user contact device, and a priority order for contact each user contact device within a group, and (3) response data that indicates the individual user has gotten the message, and whether there was insufficient contact data to reach the consumer.

On the face of it, it seems like this patent applies to Twitter. However, without knowing how Twitter’s e-mail and SMS notifications are performed, it’s hard to know for sure. There is the additional problem that Twitter doesn’t quite seem like what they patented. This patent is for a one to many system, not a many to many system. That may not have much bearing in the end.

There are also a series of claims that are dependent on the claim above. However, for the sake of brevity we won’t go into them.

The Second Patent

The last patent (7,519,165, or the ’165 Patent) covers sending messages simultaneously to several user groups. Otherwise it is very similar to the previous patents. As such it doesn’t require much more analysis.

This patent also has the “response” limitation, where the reponse indicates that the device got the message. To the best of my knowledge twitter doesn’t implement this feature, and may not infringe.

Conclusions

It’s hard to come to any firm conclusion one way or the other. But on their face, the patents are neither slam dunks, nor clearly inapplicable. In addition to the fact that there are strong arguments that the patents don’t cover Twitter, there are a host of other defenses: patent invalidity, and inequitable conduct (lying or concealing information from the Patent Office) being two of the most common.

We will be watching this story closely.

2 Comments Posted in: Analysis on August 10, 2009