Technically Legal

This has been a hell of a week for the iPhone “4G”.   Unless you’re still living in a cave, not following our blog, or (when it posts later tonight) our podcast, you’ve probably heard that Jason Chen, one of Gizmodo’s editors, had some computers seized after his personal residence was searched by California authorities yesterday.  Some interesting questions remain about the validity of the search warrant which was used.  Sam Bayard, a CMLP colleague of mine and fellow at Berkman, wrote an excellent post that covers some of the questionable aspects of the warrant.  Check it out.

Sam also helpfully included some of the California penal code statutes which relate to finders of lost property and criminal liability for  receipt of stolen property.  In particular, his post points to the following language in the penal code:

§ 485:

[o]ne who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, is guilty of theft.

and, § 496(a):

Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a state prison, or in a county jail for not more than one year.

During our podcast, which we recorded on Sunday, we didn’t fully analyze the criminal aspects of Gizmodo’s purchase of the phone in light of the California penal code–mostly because none of us are California attorneys.  In any event, after reading Sam’s post, it’s clear that are some real questions concerning Gizmodo’s actions.  Although I have not analyzed any case law on the issue, Gizmodo’s culpability might depend on whether the original finder of the iPhone took “reasonable and just efforts” to return the phone to the true owner and what Gizmodo knew prior to the purchase.

Another point which is not clear to me is if dismantling the iPhone, by either the finder or the Gizmodo staff, might rise to a level of theft by “appropriation” as contemplated by the statute.  E.g., if you’re taking apart an item, that clearly does not belong you, in a way that might cause damage to the item, it’s somewhat analogous to saying “It’s mine!  I can do what I want with it!”  Even if that argument doesn’t hold, it still might constitute trespass or conversion to chattel in a civil court, should Apple choose to pursue a lawsuit.   It’s an issue that I have not seen addressed by commentators in the blogosphere, and one that may be debunked in case law.  However, until I see a definitive opinion, I still consider it an open issue.  But, as Sam points out, Gizmodo (and Jason Chen) can argue something akin to plausible deniability– they didn’t know the iPhone was actually the property of Apple until they sent notice claiming the device.  Perhaps this mitigates the culpability some.

As of this post, no criminal charges have been filed against Gizmodo, Jason Chen, or the finder.  That decision rests with the California authorities, who might not pursue the charges after the investigation.

We’re definitely keeping our eyes on this one!

Comments Off Posted in: Links on April 27, 2010

The FCC lacks authority to regulate Comcast’s network management practices, the U.S. Court of Appeals for the District of Columbia ruled today. The case came before the court because Comcast appealed from the FCC’s 2008 order stopping it from interfering with peer-to-peer traffic on its network.

For more:

• Today’s Ruling by the U.S. Court of Appeals for the District of Columbia.
• The FCC’s 2008 Order stopping Comcast from targeting BitTorrent traffic.
• A 2007 story about Comcast’s targeting of BitTorrent traffic.

Comments Off Posted in: Links on April 6, 2010

After just discussing the Google/China spat on our last podcast, this story emerged today.

According to several media stories, Google search results were unavailable on their Chinese website as of today.  Apparently, users could access the Google search page, but were unable to yield results when attempting to search.  This news comes just a week after Google began redirecting their http://google.cn site to their Hong Kong servers at http://google.hk where censorship restrictions are more lax.

Some reports were that China had begun blocking the GOOG through the Great Firewall.  However, it now appears that an internalized error was the cause of the problem.  Somehow an errant text string was inserting itself into the URL of search result pages and caused the search engine to display an error.

For the most current info on the effects of the larger dispute between Google and China dispute, Google has a website which is tracking the status of their online services in mainland China: http://www.google.com/prc/report.html

Comments Off Posted in: Links on March 30, 2010

After nearly three years of litigation in ACLU v. Myriad Genetics, the Southern District of New York issued a landmark ruling today in favor of the ACLU and declared several human gene patents to be invalid.

The patents claimed ownership to methods and materials related to the isolation of BRCA1 and BRCA2, which are part of the tumor suppressor gene family in humans.  The patents further claim ownership over methods of comparing these genes to healthy genes for the purposes of detecting abnormalities or genetic mutations in DNA sequences .  A skilled clinician can then determine the presence of breast and ovarian cancer, or if a person has a strong likelihood of developing those cancers in their lifetime (somewhere around 70%, if memory serves).

Collectively, Myriad owns or has the exclusive rights to seven patents which deal with the DNA sequencing of BRCA1 and BRCA2 genes.  The effect from this ownership, the ACLU argues, is that Myriad Genetics owns a legal monopoly on all diagnostic processes, which hurts women’s public health at large and restricts cancer research and development.

We’ve yet to read the lengthy 152-page court ruling (read it here at the New York Times), but we’ll get through it over the next several days.   In the meantime, you can also find multiple articles on the ruling circulating in the media, including:  TechDirt, LATimes, Newsweek, Wired

Make no mistake, this is a huge case and a highly significant ruling.  Stayed tuned. We’ll cover it on our next podcast with detailed analysis.

1 Comment Posted in: Commentary, Links on March 29, 2010

As of today, summary judgment filings in the Viacom v. YouTube/Google case have been made public. Both Google and Viacom have cross filed for summary judgment–meaning both the defendant and the plaintiff believe the law should be interpreted in their favor.

These motions have been highly anticipated since the litigation began nearly three years ago. Google disputed the time frame of making these documents public, claiming it would have been a logistical nightmare in terms of making the necessary redactions for confidential information and trade secret information. Judge Stanton disagreed with Google, and ordered the filings to be made public this week.

TechCrunch has the filings on their site. After I get a chance to comb through them, more thoughts on the arguments of each side will be posted. Stay tuned.

Thanks to Ben Sheffner and TechCrunch for helpful posts.

Comments Off Posted in: Links on March 18, 2010

This week, court documents were posted online indicating that Jammie Thomas-Rasset’s third trial is set for next October. Hat tip to Ben Sheffner for reporting this on Monday on his Copyrights & Campaigns blog.

A few weeks back on our Podcast and blog (see here, here, and here), we covered the first part of this story when Judge Davis granted a remittitur reducing the damages in the case from $1.92M ($80,000 per song infringed) to $54,000 ($2,250 per song infringed). As we noted, once a remittitur has been granted, the opposing party has the option to either accept the reduction in damages or have a new trial. They opted for the new trial, which will only concern the issue of damages.

A bigger question, as we (and Sheffner), have noted is whether the ultimate amount of damages will be capped in the new trial at $54,000 (based on the remittitur) or whether the plaintiffs will be able to cover any amount within the spectrum of statutory damages under the copyright act.

Comments Off Posted in: Commentary, Links on March 3, 2010

Ben and I appeared as guest panelists yesterday, February 12, 2010, on This Week in Law, which is part of the TWiT network with fellow attorneys Ernie Svenson and Denise Howell.  We had a lot of fun doing it and hit some great topics.  Be sure to check it out.  The audio podcast should be available early next week and the (unedited) video broadcast is available on twil.blip.tv (and below).

Comments Off Posted in: Links on February 13, 2010

This afternoon I came across Martin Goetz’s guest article on the patent law blog Patently-O.  As a long-time software developer and recipient of the first software patent issued, Goetz provides an interesting perspective on the ongoing software patent issue presently before the Supreme Court.

As lawyers, we’ve been trained to think from the legal perspective.  This sometimes contrasts sharply with the laymen understanding of why particular laws exist and why they function as they do.  In the last couple years, I can recount multiple watercooler conversations with non-lawyers, including software engineers and corporate executives,  who have difficulty understanding the unique problem of patenting software inventions under the current standard imposed by the Federal Circuit (the “machine or transformation test“) and the close relationship to non-patentable abstract ideas.

Often, their frustrations can be simplified to: “it’s mine, I developed it with my own ingenuity and the sweat of my own brow, no one else has done it, therefore I merit a patent and the exclusive rights afforded under the law like other inventions.”  While each of these factors are among the recognized reasons in favor of issuing patents, they fail to address the precise problem found in the boundaries of non-patentable inventions and patentable subject matter when applied to software inventions.

Of course, not every layman’s justification I’ve heard falls short of addressing the problem.  In fact,  Goetz’s article confronts several core issues in the debate with a perspective based on development experience.  Though his article does not describe the legal problems, it attacks the notion that software is an abstract principle or idea through a variety of analogies and thoughtful descriptions of enterprise software development.  He notes that the similarities of software development to hardware development process and other physical items of manufacture which are clearly within the realm of patentable inventions.  Interestingly, Goetz also describes software as being closer to a machine than a mere abstract principle when one considers the amount of R&D, workmanship, problem solving, and necessary infrastructure required to achieve a functional high-technology product.

Overall, I appreciated the perspective from a seasoned practitioner in the trenches and recommend the read, especially if you already have a good grasp of the legal principles before the Supreme Court.   Though many of his arguments are compelling on certain points, the Supreme Court will likely focus on many of the nuanced patent principles in addition to other counterbalancing factors in their final decision.

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

Today, the Supreme Court hears arguments on the Bilski case.

While you can’t (yet) listen to a live stream of the arguments, the transcript is here.

In the meanwhile, here’s a smattering of news and analysis, courtesy of Google News. If you’re in the mood for something more incisive, take a look at Gene Quinn’s analysis of Bilski.

UPDATE 3:00 PM: SCOTUS Blog has the first post about the Bilski argument. In short, no one on the Court supported Bilski’s patent, but whether the Court will address software patents is up in the air.

UPDATE 6:40 PM: The post now has links to the transcript above, and here.

Comments Off Posted in: Links on November 9, 2009

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