Saturday, November 14, 2015

Using Public WiFi? Use a VPN - or Else

We all use public WiFi. Coffee shops, hotels, public spaces, even the New York subway system offer easy and free WiFi connections that allow us to stay connected to the Internet while away from the office. The vast majority of these public WiFi networks are insecure, however, meaning that an unknown third party using easily-available tools can snoop on our conversations with relative ease. And while many email providers and some websites will secure (that is, encrypt) your communications for you (look for the "https" at the top of your browser), that doesn't cover everything you're typically doing on the Internet.

Enter the Virtual Private Network, or VPN.

A VPN is a secure, encrypted connection between your computer and the VPN provider's server, which can be located anywhere but most certainly is not located on the laptop of that sketchy-looking guy camped out two tables over.  It protects all of your communications with the Internet, making it much more difficult for nefarious snoopers like Mr. Sketchy to see what you're up to while, for example, you're searching for prior art or doing legal research at your local Peets (alright, it's probably a Starbucks but I've always liked Peet's).

Using a VPN requires subscribing to a VPN service.  I use VPNLand, because the BoingBoing store offered a good deal ($24.99) on a lifetime subscription and it seemed to have good reviews.  There are many, many other providers, so do your homework and look for one with favorable reviews.  Once you sign up, you'll download a VPN app that you access after you've made your insecure WiFi connection. VPN apps are also available for smartphones, but I do most of my heavy lifting on my laptop, so that was not important to me.  

With my VPNLand app installed, I connect to the Internet, open it up, select my encryption level, and then select my server location. For most work, any encryption level will do and server location isn't all that important; I typically select a server located in New Jersey, simply because of a probably-naive belief that a shorter connection might mean marginally faster service. I click connect, and in a matter of less than a minute my Internet connection is securely routed through a VPNLand server in the Garden State.

Of course, you can geek out with a VPN - select an encryption protocol that is more secure than another, pick a server located in another country - but for the vast majority of us, any type of encryption and any server location is going to be good enough.  There are many benefits of a VPN that go beyond the scope of this post.  Three worth briefly noting here: (1) If you're traveling in a country that restricts Internet access, you can select a server located in a more open jurisdiction; (2) many countries block Skype, and a VPN will help you get around that, and (3) If you are outside of the US and can't access a particular site (Netflix, for example) because you are not in the US, you can use a US-based server to connect. Finally, for the small subset of us who have clients with particularly good reasons for secure communications (international human rights, for example), a VPN connection might be something you want to use even when working from a more secure office setting.  

For lawyers working on client matters, there is no excuse for not using a VPN.  For anyone else interested in keeping their communications secure, it's a must.


Saturday, October 24, 2015

Fairly Unsurprising - the Google Books Decision

With its recent Google Books decision, the Second Circuit hasn’t necessarily broken new ground so much as – doing what courts from time immemorial have always done – applied existing law to a new situation.  The result, within this very discrete set of facts, can be summarized thus: 

- Full-text imaging and OCR-ing of books is okay if you do it for someone who owns a copy of that book and won’t use the scanned version to infringe the author’s rights.  Permitting the public to search the full text of the book falls within the fair use doctrine, provided the search results you provide are of only small portions of the book, do not substantially harm the market for the book (such as when an entire recipe is revealed from a cookbook), and you don't make money from the process.  

This all seems quite reasonable, and may provide some new guidance for fair use advocates.  Its very reasonableness, however, makes it a wee bit suspect, since much of the existing law of copyright has very little to do with reasonableness and very much to do with what major content owners think it should be.  

If the Supreme Court considers and upholds the Second Circuit decision, look for content owners to lobby Congress for a legislative “fix” that will close what I’m sure many will consider to be an undesirable result.  

In the meantime, my personal takeaway from the Google Books decision is the existence of the Google Ngram viewer, which charts the frequency of word use over time among the many books that Google has scanned.  In the interest of scholarship, I offer the results of my own thoughtful exploration of this feature below.  

Sunday, October 11, 2015

And to Your Right - the TTIP

With all the news about the Trans-Pacific Partnership (TTP) and debate about its effects on intellectual property and Internet user rights, we should also keep in mind another huge trade deal that is in mid-negotiation: the Transatlantic Trade and Investment Partnership, or TTIP, between the US and the EU.  The TTIP is not nearly as far along as the TPP, but because of its similar potential to have a huge impact the US it also bears watching.

The TTIP has inspired huge protests in the EU, with hundreds of thousands of people gathering to protest it this past week in Berlin and other cities in Europe, and more than 3.2 million people signing an anti-TTIP petition that was delivered last week to the European Commission.  Many of the protestors' concerns relate to the TTIP's potential effect on European food safety and environmental laws, which are generally viewed to be tougher than those imposed in the US.

The TTIP isn't all about GMO and fracking, however.  It is intended to include provisions relating to intellectual property, and while they haven't been solidified yet, the Electronic Frontier Foundation nonetheless prepared a piece back in January of 2015 that nicely highlights some areas of potential concern.  

In any event, when that many people claim to oppose a trade deal that directly involves the US, it bears keeping an eye on what's going on.  The US media has been relatively quiet about the TTIP, so if you want to follow along you'll be best served to see what the international press has to say about it.


Good Points on the TPP from the EFF

The Electronic Frontier Foundation has penned an excellent analysis of the IP provisions of the Trans-Pacific Partnership text that you can read in full here.

Something that I did not appreciate when I read the leaked language of the IP section was how the restrictions applied to users tend to be mandatory, while the rights given to them tend to be discretionary.  Which of course makes sense if you accept the contention that major content providers significantly influenced the (secret) negotiations the led to the TPP.  

Frankly, much of the IP language of the TPP tends to impose the regimes currently in place in the US, which is why it may be harder for me to be shocked to see them in this document.  At any rate, the EFF's analysis offers a fresh perspective on what the appropriate limits should be on both content owner rights and user rights.  Good reading.

Saturday, October 10, 2015

Let's Take Our Time Before We Freak Out About the TPP

While I am not a big fan of the way the Trans-Pacific Partnership Agreement was negotiated or has been ballyhooed by the Obama administration, the fact remains that it is the text of the TPP that needs to be the focus of our attention going forward.
Wikileaks has just released a the IP Rights Chapter of the TPP, or at least the version that existed as of October 5, 2015. 
Based on the version released by Wikileaks, The Guardian article linked here says that the TPP will "give signatories the ability to curtail legal proceedings if the theft of information is 'detrimental to a party’s economic interests, international relations, or national defense or national security' – in other words, presumably, if a trial would cause the information to spread."
I'm not sure I agree. The text in question (Article Q.Q.H.8.3) says that "a Party (any of the countries who sign on to the TPP) may, where appropriate, limit the availability of such criminal procedures [to prosecute trade secret theft], or limit the level of penalties available, TO one or more of the following cases: . . . . (e) the acts are detrimental to a Party's economic interest, international relations, or national defense or national security."
Note the "TO," which I highlighted. This suggests that a country may limit its criminal prosecution of trade secret theft TO situations where the theft is detrimental to the country's economic interest.
The Guardian's interpretation effectively replaces the word "TO" with the word "IN." Doing so substantially changes the meaning of this section. If a country can "limit the availability of such criminal procedures . . . IN . . . one or more of the following cases," then the country can restrict application of existing laws in situations where "the acts are detrimental to a Party's economic interest" etc.
But I don't think that's what the provision is trying to say.
Certainly this is one area that could use some clarification before it's up for ratification.

Tuesday, April 09, 2013

Selling a Jayne Cobb hat? Keep selling!

The short-lived Fox series "Firefly" has developed a cult following that has given life to any number of t-shirts, character statues, and other fan tributes.  Among them are a certain silly knit cap worn by the character Jayne Cobb (supposedly knit for him by his mother).  Fans have been able to buy "Jayne Cobb" hats from Etsy sellers and others for years.

(This is an official "Jayne Cobb" hat, available via ThinkGeek.  Attractive, no?) 

Until now. Apparently, Fox has been threatening these independent producers of lookalike hats with all manner of perdition.  But here's the problem - unless the sellers are calling them "Jayne Cobb" or "Firefly" or "Serenity" (the name of the ship and a follow-on feature film) hats, Fox really has little legal basis to stop third parties from making and selling these hats.

That's because hats are "useful articles" under US Copyright Law - and so can't be protected by copyright.  This peculiarity of copyright law has bedeviled fashion designers for years, and while there has been some chipping away of the concept (costumes, for example, can be protected), in general an article of clothing can't be.

So if you've received a cease-and-desist letter because you are selling "Jayne Cobb" hats, give me a call.  I'm a big "Firefly" fan and will be happy to review your situation and give you some idea of where you stand.   Browncoats do need to stick together, after all.  Especially when the Alliance comes a calling.  

(Update: The folks at ThinkGeek have decided to donate profits from the sales of officially-licensed Jayne Cobb hats to the Firefly-inspired "Can't Stop the Serenity" charity.  Well-played, Geeks, well-played!)

Monday, April 08, 2013

Bittorrent Subpoena Notice? Check the Case Status!

These pesky bittorrent lawsuits continue to propagate themselves throughout the court system.  Content owners -- which frankly may have a legitimate beef with having their films distributed for free -- persist in using them as tools to issue subpoenas seeking the identity of alleged file sharers.  If you receive a notice from your ISP that it has received a subpoena and that your personal information will be disclosed to the plaintiff unless you take steps to stop that from happening, don't despair.

One of the first things you should do is check the status of the lawsuit.  Many of these cases are getting dismissed by judges who are increasingly skeptical of both the methods used by the plaintiffs, and the quality of the rights they claim to hold.  If your case has recently been dismissed, then you may have a great argument that the subpoena is no longer valid.  Even the most compliant of ISPs will be nervous about disclosing customer information in response to a subpoena that has no legal force.

Those of us who handle these cases can quickly let you know what the status of the underlying lawsuit is.  Make sure you double check that before deciding how to respond to the ISP notice.


Saturday, October 06, 2012

NBC, Get with the Program

NBC has recently asked the Obama campaign to stop using footage of one of its talking heads reporting on what a think tank thinks of Romney's tax plan.  And yes, perhaps NBC has something of a copyright claim, and yes, perhaps NBC wants to avoid the impression that it is taking sides in the election.

But if you are a broadcast network built on the backs of licenses granted by the Federal Government allowing exclusive use of defined portions of the broadcast frequency spectrum in return for providing a minuscule bit of public service programming, then you need to expect that a political campaign for president is going to use footage of one of your reporters reporting on an issue of interest.  And then just shut up about it.