New Group Enters Privacy Debate

A new privacy advocacy organization called the Future of Privacy Forum, funded by AT&T, has debuted in Washington. I might have assumed it would be another industry-driven group seeking to prevent serious policy changes, except that I have a lot of personal respect for its leadership. The director, Jules Polonetsky has a long history of working in both government and industry for sensible privacy rules. (And of course, like me, he once worked for then-Rep. Chuck Schumer!) The members of the advisory board include leading scholars and advocates such as Dan Solove, Paul Schwartz, Simon Davies, and Chris Hoofnagle, among others.

And the new group’s policy agenda sounds pretty good, culminating in this rather grand statement:

FPF will advocate for privacy advances that are business practical, but that substantially raise the bar to ensure personal autonomy for all who seek to embrace the benefits of our digital society. We will seek to work with industry, advocates and policymakers to ensure the future of privacy is one where we are not enslaved by our data, but rather where data serves the benefit of humankind.

It will be interesting to see how the FPF pursues its mission and how it fits in with existing industry initiatives as well as established advocacy groups like the Electronic Privacy Information Center and the Center for Democracy and Technology.

Brilliant New York Times Parody: Legal?

There is a terrific parody (or, perhaps, satire) of the New York Times available both in cyberspace and in print (over a million copies were distributed in cities nationwide, mostly New York and LA). (The Times is calling it a “spoof.”) This is detailed, careful artistic work: if you explore the site, you’ll see that the fake content goes several levels deep, and even knocks off the ads one commonly finds in the Times (or on New York subways). Here’s the rub: is it legal?

On copyright grounds, I think the spoof is safe, but it’s a close call. If it’s a parody of the Times, then the fake version is a fair use (after Campbell v. Acuff-Rose, parody is essentially paradigmatic fair use). If it’s satire: well, that’s a different story. The Ninth Circuit didn’t think it was fair use when The Cat NOT in the Hat! made fun of O.J. Simpson using rhyming, Seussian doggerel. Satire, courts seem to think, is gratuitous: it uses someone’s artistic creation (copyrighted) to poke fun at a different target altogether. Since the choice of weapon is nearly arbitrary, the resulting work infringes. Of course, the analysis gets harder when, as here, the accused parody makes fun both of its host and of society at large.

On trademark grounds, it’s less clear. The trademark doctrine of fair use (better called descriptive fair use / nominative use) is far less forgiving of infringement, even for parody, than copyright’s analog. When the parody confuses consumers, there’s essentially a sliding-scale, tradeoff analysis of the public interest in free expression against the public interest in avoiding consumer confusion. The challenge is that a socially critical work like the one here depends on (briefly) confusing consumers. If someone handed you a paper called “The Daily Ridicule,” with the headline “Iraq War Ends,” you’d probably throw it away. But when it’s the Times, with the same headline, you’re briefly thunderstruck, and you read it (and then throw it away). That moment of confusion - of Zen-like unmooring of assumptions - is precisely what makes this piece work and what creates risk under trademark law.

So, I’m waiting to see if a lawsuit comes out of this. This is social criticism at its most biting. IP law shouldn’t prevent it.

[Update - 2:40PM - I shamefully forgot to hat-tip Ken Marx. Also, we could talk about whether the spoof is a "use in commerce," but use is too painful to spend a lot of blog space on. I think it could cut either way, depending on one's sympathy towards parodies and one's views on TM use generally.]

Offer Advice to Obama’s CTO

President-Elect Obama said during the election that he would appoint a chief technology officer to bring 21st century thinking to the White House. (This is not to be confused with the position of “intellectual property czar” recently created by Congress.)

The Obama campaign was more comfortable with new technology than any past presidential candidacy. But there is reason to wonder how that will translate into governance. The transition team’s “Change.gov,” for example, has slicker design than most bureaucracy web sites, but it’s nowhere near as interactive as the campaign’s web site.

One effort to create two-way communication with the incoming administration is a new site called Obama CTO, which uses a Digg-like voting system and discussion board to advance ideas for the as-yet-unnamed CTO. If you are interested in Info/Law issues (and really, why are you on this blog if not?), take a moment to sign in and vote for ideas there.

Like Voldemort, Potter-Lexicon Suit Rises Again

RDR Books, which lost in a copyright lawsuit filed by Warner Bros. and J.K. Rowling against its planned Harry Potter Lexicon book, has filed a notice of appeal to the United States Court of Appeals for the Second Circuit. (Hat tip: Slashdot, Ray Beckerman; coverage: Stanford’s Copyright & Fair Use blog, P2PNet; list of documents in the case from Ray Beckerman) Since both Lord Voldemort and Harry Potter rise from the (nearly) dead, you can read the analogy however you want. I think the appeal is very helpful; while I thought the original verdict was correct in its outcome (including the minimal statutory damages), I found the reasoning confused in a number of key areas. The Second Circuit should, hopefully, affirm, but with a clear opinion setting straight some of the issues related to derivative works and fair use. It’s great to have such capable counsel on both sides, improving our odds of a thoughtful decision.

Rant: It’s a little frustrating to read the comments on the Slashdot post about the case. There’s just so much FUD out there about fair use. Even reading the relevant statute - 17 U.S.C. 107 - isn’t all that helpful, not just because its test is a non-exclusive four-factor totality of the circumstances test, but also because the 1976 Copyright Act was intended to codify, not supplant, the well-developed common law regarding fair use. When I teach Copyright, I tell the students that I think making predictions about what is or is not fair use (when you’re representing someone as counsel) is just about malpractice. It’s very hard for experienced attorneys to assess fair use (as the debate over the Lexicon case proves). For those in the Slashdot crowd who think it’s straightforward, or formulaic, I hope you don’t rely on those perceptions in making actual decisions about copyright. OK, Rant off.

Spam in a Can? Direct Mail as Information Problem

The NYT interviews Michael Critelli, head of Pitney Bowes, who disputes claims that direct (snail) mail harms the environment, annoys consumers, kills kittens, and is otherwise bad. There’s a mix of ham and spam in his claims. For example, it’s not shocking that the direct marketing industry has long been a fan of “informed consumer choice.” That’s why the federal anti-spam act is opt-out: you have to notify senders that you don’t want to receive unsolicited messages (potentially at the cost of notifying spammers that they’ve found a live address). It’s always helpful to be a skeptic when an industry’s view of the public good magically coincides with its profit motive. Note, also, the description of the Direct Marketing Association’s registry: it’s for mail preferences and lets folks avoid “a lot of the mail they don’t want to receive.” That’s a pretty lawyerly statement, no? “Choice” here means “choosing to let us know what junk mail you don’t want.” Until then, they’ll helpfully assume you’re interested in everything.

Second, the claim that shifting to e-mail marketing would harm the environment - you know, all those servers and data centers - is laughable. First, snail mail and e-mail marketing increasingly target separate market niches - the former is particularly important for folks who don’t go on-line or have slow-speed connections. Second, while spam overall constitutes a large share of e-mail traffic, the marginal increase from this shift would not significantly affect costs. (Legitimate mail gets stored more often, as long as spam filters are well-working, but spam transport requests swamp legit messages.) And the cost of spam filters is pretty low: there are free software programs, and free Webmail services such as Gmail and Hotmail do a good job. If spam constitutes 90% of e-mail traffic (put aside the software industry self-interest in that stat), then doubling legitimate e-mail would only increase traffic about 10%. Hardly burdensome.

But I do agree with Critelli about how consumers actually behave. Let’s be plain: I am the problem here. When I first moved to Michigan in 2006, I had no idea how to find a dentist. Most of the recommendations I got were in Ann Arbor, and I lived a half-hour away from there. So how did I pick someone to make me feel guilty about not flossing? I got a solicitation in the mail. The dentist was covered by my dental plan; his dental assistants were very nice; and he was up-to-date on the newest tech and research. In my case, though, direct mail spam worked. And I think my experience is typical. I may not request the catalog, but I will still order from it. Unsolicited information can be valuable to consumers, and unsolicited advertising can be effective. I’ve long argued this is the real challenge of spam: not its cost structure, not defining consent or opt-in / opt-out, but the fact that it works often enough to make spamming viable financially.

So, I’ll still recycle most of the flyers and catalogs that I get here in Brooklyn, but if someone wants to send me stuff on the latest and greatest computer parts or SCUBA gear - even unasked-for - it’s possible I’ll give it a read.

PRO IP and Silence of the Profs?

The House and Senate easily passed, and President Bush signed, the PRO IP Act. Some commentators have been critical of the Act (Public Knowledge, TechCrunch, Declan McCullagh) - but to no avail. However, IP profs (at least, those who blog) have been pretty quiet about the Act. I can conceive of at least three possible reasons for this:

  1. Public choice problem - IP profs know they just aren’t that influential with Congress, compared to industries (such as movies and music) with a significant economic stake. Tilting at windmills isn’t a good use of time.
  2. No big deal - the Act doesn’t make enough substantive changes to IP law (focusing mostly on counterfeit trademarks and setting up a new IP bureaucracy in the federal government) to rally profs to the barricades. It’s not much of a windmill, anyway.
  3. Advancing the ball - the Act is actually a good idea. Windmills can be useful things.

I’d be interested to know what you think.

Update (Oct. 15, 1:30PM): Susan Scafidi has an insightful post at Concurring Opinions. My only quibble: do we want an IP czar generally? Larry Lessig would be terrific, but administrations come and go; the structure remains. (Particularly given the bipartisan consensus on this bill.)

Flaws in Palin Hacker’s Indictment?

A grand jury has handed down this indictment against David Kernell, the son of a Democratic state legislator in Tennessee, for allegedly hacking into Governor Sarah Palin’s e-mail account. (News story here.) Professors Orin Kerr and Paul Ohm, probably the two most knowledgeable scholars in the country on the subject of computer crime, are both dubious about the way the indictment achieves felony charges. (In short, the unauthorized intrusion into Palin’s e-mail needs to have been in furtherance of some other crime or tort; in typical cases that would be fraud or identity theft, but here it isn’t clear what that other crime or tort might be.)

This sounds like DOJ might be engaging in some of the same questionable tactics as in the Lori Drew case, which I’ve discussed before. Here, like there, the [alleged] underlying behavior was wrong and should be criminal. But it matters how you achieve that result, and loosening the law just to get the bad guys gives too much discretion to prosecutors.

Question of the day: will a failed prosecution here (or in the Drew case) lead to reform of the antiquated computer hacking/trespass/fraud statutes?

Red Sox, Scandal, and Trademarks

No, Alex Rodriguez isn’t involved. But with the Red Sox meeting the Tampa Bay Rays in the American League Championship Series on Friday, this seemed like a fun bridge between IP and MLB. (Game 1 is at 8PM EST, or at least 2 hours past the bedtime for most Tampa residents.) Brad Sherman sought to register (App. No. 78673909) the mark “SEX ROD” with the PTO in 2005 for use on clothing; the mark is in the Red Sox’ distinctive font. The Sox unsurprisingly filed an opposition in 2006 (I assume they’re using a trademark watch service), challenging the application as likely to cause confusion under Section 2(d) of the Lanham Act, and also as immoral / scandalous, disparaging, and falsely suggesting a connection with the Sox (all under Section 2(a)). The Sox also alleged that Sherman lacked the requisite bona fide intent to use the mark. (Sherman filed an Intent to Use (ITU) application, not one based on actual use.) The Trademark Trial and Appeal Board (TTAB), ever speedy, mailed its decision on September 9. The outcome: shockingly, Sherman loses. Read more…

Political Speech on Public Campuses

This Chicago Tribune article discusses a controversy at the University of Illinois, which:

has sparked outrage by telling faculty, staff and graduate students that a 5-year-old state law designed to prevent state workers from campaigning for candidates on state time or with state resources meant they could not express support for candidates or parties through pins, T-shirts or bumper stickers while on campus. Nor could they attend any political rally or event on campus, the administration said.

The governor’s Office of Executive Inspector General, which investigates ethical violations, has gone one step further, saying state law meant that university students, not just employees, were prohibited from participating in political rallies on campus–an assertion at odds with the university’s interpretation.

On Friday, the state attorney general’s office said the ethics law did not apply to students. The office did not answer whether the law prohibited university employees from wearing political buttons while at work, attending political rallies on campus on non-work time or some of the other specific interpretations made by the university.

Two thoughts. Read more…

Skype, Filtering, and Privacy

[Update Oct. 3 5:45PM - Skype's president responds, and says Skype was unaware of TOM's monitoring. But this is why tech firms partner with domestic Chinese firms: to handle uncomfortable requests such as filtering and surveillance... (via Wired)]

The New York Times reports on some terrific research done by my former ONI colleague Nart Villeneuve - he found that the TOM-Skype text messaging service in China not only scans messages for sensitive keywords, it also stores copies of offending messages along with information identifying the sender and receiver. This raises a host of scary issues. First, these messages are clearly stored for a purpose. It might be to help TOM-Skype kick people who send sensitive messages off the service; more sinister (and more likely) is that it might help the Chinese government keep tabs on those users (and, probably, analyze traffic data for trends in what’s discussed or to detect new keywords to block). Second, the surveillance is insecure: Nart’s hax0r skills are rare, but there are other skilled folks out there, too, who might find (or have found) uses for this information. Third, Skype has consistently denied doing this sort of thing. Oops. Finally, eBay (which has thus far eluded the scrutiny that Microsoft, Google, and others have faced over operations in China) has responded by saying they’ll have TOM-Skype fix the “security breach.” No, not the one that stores all these messages - the one that let Nart access them. This is like spotting a sewage leak like by the flies above it, and vowing to do something about those flies.

This research also elucidates the link between censorship and surveillance: the former can enable the latter to be better-targeted. Indeed, Nart’s work suggests that TOM-Skype messages were stored not simply because of content, but because the service identified certain users as more likely to send texts with sensitive keywords. That’s scary. And it moves (or should move) the debate about corporate complicity with authoritarian states’ actions up a notch: this is more like Yahoo! selling out Shi Tao than Google censoring search results. We’ll see what, if anything, eBay does in response.

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