A Tale of Connectivity

We live in an incredibly connected age. This was driven home to me during this past week's arocities in Mumbai. As the world learned of much of the early story from Twitter users (see post below), the news media slowly geared up their coverage, much of which amounted to the usual video loops coupled with news anchors mouthing the same script over and over again. This tended to reduce a series of tragic events that effected tens of millions of people in a very deep and intense way to a collection of banal sound bites and video clips.

Occasionally, something new would be added to the mix. A broadcast telephone interview with a foreigner trapped in one of the beseiged hotels piqued my interest, so I "Googled" (I know, it's a trademark not a verb) the man, who happened to be an attorney, and up popped his law firm profile page. I did this partly out of curiousity, but partly because I was thinking of sending him an email.

This was someone I had never met. We shared both a profession and an interest in intellectual property law, but that was about it. Why would I send him an email, and just as important from my perspective, why would he want to receive it?

I tried to put myself in his shoes. If I were barricaded in a hotel room, trapped in a hotel that had been overtaken by terrorists, thousands of miles from home or family, would I appreciate receiving words of encouragement from strangers? That sealed it. I composed a short email introducing myself that I thought conveyed some encouraging wishes, and hit "send."

Ten minutes later, a reply. Short, but polite, thanking me for my note and "kind thoughts." From the Blackberry of a man barricaded in a beseiged hotel in Mumbai, to my laptop in a tourist hotel in Sarasota, Florida, a connection. We exchanged several messages over the next two days, my last to him a note of congratulations on his release and wishes for a safe trip home, and his again-polite response of thanks.

What I found even more heartening was to learn that I was far from the only person who felt compelled to reach out to this man. In a post-release interview, he said that he had received thousands of messages from around the world during the days he was barricaded in his room. The interview gave me the distinct impression that those emails provided him with, if not peace of mind, at least a welcome distraction during his days of captivity.

I often hear people complain that the Internet helps to create islands of individuals who communicate with each other via texts, tweets, emails, and blog posts, and that this is diminishing the capacity for real "human" connection. I agree that it can become easy to use electronic communication as a way of avoiding more personal forms of interaction. On the other hand, it can also provide a new avenue for communicating with people in helpful and meaningful ways. It is our responsibility to be open to those opportunities and make the most of them.

Twitter Comes of Age With Mumbai Attacks

The still-developing terrorist atrocity in Mumbai has seen the communications tool Twitter emerge as means for participants, witnesses, and the rest of the world to report on and react to a breaking news situation in a new and useful way. Reports from the ground in Mumbai via Twitter have been way ahead of both the traditional media -- newspapers and television stations -- as well as even the new media in reporting on what is happening there.

Twitter allows anyone with a cell phone or Internet connection to broadcast news to an audience -- sometimes an audience of dozens, but for some Twitterers an audience of thousands. Each Twitter account member can forward messages, which can multiply in a cascading effect the impact of important messages.

I took note of Twitter some time ago, but dismissed its utility for anybody other than the critically narcissistic. Fortunately, others were more creative, and have managed to develop Twitter as an effective means to network and communicate.

In the last month we've seen debates about how we can use Twitter as a marketing and network-development tool. Last week those of us who follow Twitter were talking about Shaquille O'Neal using Twitter to reach his fan base. Next week we'll be discussing how Twitter can change the way people learn of breaking and changing news stories.

The issues with citizen journalism -- accuracy and credibility -- are magnified when that journalism is filtered through a 140-character-limited Twitter post. It will be interesting to see how mainstream journalism adapts to the Twitter challenge.

For more on Twitter, see here.

Update: 15 minutes after I submitted this post, a number of Twitter feeds reported that Indian government officials have asked that the Twitter page for Mumbai be shut down, and that people stop submitting Twitter feeds about the emerging situation. Is this an attempt to manage the situation, or control the dissemination of information? Or perhaps a bit of both? (Or likely just a rumor, though the BBC picked it up and ran with it for some hours.)

Papermaster Injunction -- Was it Inevitable?

The blogosphere has been predictably atwitter since IBM's now-former Vice-President of Blade Development and member of its Integrated Values and Technical Leadership Teams, Mark Papermaster, was enjoined from continuing in his new position Senior Vice President of Device Hardware Engineering for Apple's iPod/iPhone division.

On Monday, Judge Karas of the Southern District of New York released his opinion granting IBM's motion for an injunction against Apple, preventing Mr. Papermaster from continuing in his new job there. The well-written opinion can be used as a good tutorial on the basics of drafting and enforcing non-compete and non-disclosure agreements.

Mr. Papermaster had executed a non-competition and non-disclosure agreement in 2006 in which he agreed that, for one year following the termination of his employment at IBM, he would not engage in or associate with companies that competed with IBM business units with which Papermaster had worked during the previous two years. The focus of the court's analysis was not so much on the appropriateness of the non-compete agreement -- which the court found to be reasonable in scope -- but on the potential for irreparable harm to IBM if Mr. Papermaster disclosed confidential IBM information and trade secrets in the course of his new employment at Apple. This makes sense because absent a showing of irreparable harm, neither the TRO nor an injunction could issue.

So, without dragging this into too much narrative, here are some bullet points that illustrate the uphill battle that Apple faced in trying to free its new employee from the restrictions of his IBM non-compete agreement:

-- The one-year term of the employment restriction was not deemed to be too onerous, and Mr. Papermaster agreed that that and the other geographic and temporal restrictions were reasonable;

-- Mr. Papermaster acknowledged in the agreement that his position provided him with access to IBM confidential information and trade secrets;

-- He agreed that his services for IBM were "extraordinary, special, and unique;" -- He acknowledged that IBM would suffer irreparable harm if he failed to comply with the noncompetition agreement;

-- The court did not accept Apple's argument that it was not a competitor of IBM's, particularly given industry analyst reports to the contrary and Apple's recent purchase of P.A. Semi, a microchip design company that competes with IBM;

-- Probably to IBM's credit, it had offered Mr. Papermaster a "substantial increase" in compensation to stay at IBM or, alternatively, one year's salary if he would agree not to work at Apple for a year;

-- The court found that there was a "substantial risk" that Mr. Papermaster would invevitably disclose IBM trade secrets if he were to continue in his new position at Apple;

Here it is useful to pause to review the elements that the court applied to the inevitable disclosure analysis:

"(1) the extent to which the new employer is a direct competitor of the former employer; (2) whether the employee's new position is nearly identical to his old one, such that he could not reasonably be expected to fulfill his new job responsibilities without utilizing the trade secrets of his former employer; (3) the extent to which the trade secrets at issue would be valuable to the new employer; and (4) the nature of the industry and its trade secrets."

The court found that Mr. Papermaster had acknowledged possessing IBM trade secrets, and in fact had "worked for years with some of the crown jewels of IBM's technology" and had "been exposed to other sensitive and confidential information" through being a member of the I&VT and TLT groups. Given all of the above, it was "no great leap for the Court to find that Plaintiff has met its burden of showing a likelihood of irreparable harm."

The court did take pains to point out that there was no suggestion that Mr. Papermaster "has intentionally acted dishonorably," and that the harm to IBM was "more likely to derive from inadvertent disclosure of the IBM trade secrets that have defined Mr. Papermaster's long career." It also noted IBM's efforts to retain Mr. Papermaster by increasing his compensation, as well as its offer to pay him during the year he was restricted from working for a competitor.

The court acknowledged Mr. Papermaster's argument that "his offer from Apple represented a once-in-a-lifetime opportunity," but pointed out that he "also must accept the obligation he undertook when he became a top executive at IBM."

Takeaway:

1. It pays employers to be realistic when drafting non-compete agreements for key employees. Tailor the agreements to the position.

2. It pays employers to be fair, particularly when faced with an enforcement situation. IBM was not obliged either to offer Mr. Papermaster a raise or to offer to pay him for the one-year period of his non-compete. That it did so carried some weight with the court, and makes this look less like a case of a Corporate Titan trying to push around Just An Employee.

3. Long-term employees are handicapped more by non-competes than are employees who have job-hopped in the past. The court took note that Mr. Papermaster had been employed at IBM for 26 years, meaning that most of what he was bringing to the Apple table was what he had learned while at IBM. Had he worked for several companies during his career, and had his tenure at IBM been substantially shorter, his argument that he would not be disclosing IBM trade secrets would probably have been stronger. Long-term employees who are presented with non-compete agreements should consider this before signing, and may want to try to negotiate their position accordingly.

That said, Cnet has an interesting piece challenging the finding that IBM and Apple compete in the chip market such that it was fair to enjoin Mr. Papermaster from taking on his new position at Apple.

New Fed Circuit Internal Operating Procedures

Dennis Crouch has an excellent post on the Federal Circuit's newly-revised internal operating procedures, including a link to the court's revised IOPs. Well worth a look if you find yourself in that forum.

FBI's Useful Tips for Combatting Espionage (works for trade secrets, too!)

From The Trade Secrets Blog comes this report of how the FBI is investigating economic espionage here in the U.S., in this case arresting a furniture salesman who allegedly was working for China and befriended a military contractor in an attempt to extract defense secrets. The underlying news report notes, however, that foreign intelligence-gatherers are "after anything that could give their country an edge or hurt the U.S."

While reading this, I began to wax a bit nostalgic for our bygone "red menace" era. With that out of my system, I hopped on over to the FBI website, where I found some succinct and helpful advice for companies interested in protecting their trade secrets. While designed to combat industrial espionage, these suggestions are helpful even if your business isn't particularly strategical. (I know. Strategic.)

Here it is, from the FBI website, in a nutshell:

How to Protect Your Business from Espionage: 6 steps

1. Recognize there is a real threat.
2. Identify and valuate trade secrets.
3. Implement a definable plan for safeguarding trade secrets.
4. Secure physical trade secrets and limit access to trade secrets.
5. Confine intellectual knowledge.
6. Provide ongoing security training to employees.

This is good advice, espionage threat or no. Though I would not have used "valuate."

Jones Day Winning and Losing in Trademark Dust-up

There has been so much written about the Jones Day trademark infringement lawsuit against BlockShopper that for me to add to the commentary would simply be piling on. According to the lawsuit, Blockshopper.com is in the business of "gathering and publishing details of private residential real estate transactions." (Presumably, what this really meant is transactions between individuals, since virtually all real estate transactions, even residential ones, are matters of public record.)

BlockShopper apparently included among its transaction listings purchases made by two Jones Day attorneys, and in those two listings linked back to the Jones Day website and included photo images of the two attorneys that the complaint says "are identical to the photographs which appear on the Jones Day web site." BlockShopper's use of the Jones Day marks in its posts, the links back to the Jones Day website, and the use of the two attorney photographs are alleged to "create the false impression that Jones Day is affiliated with and/or approves, sponsors or endorses" BlockShopper's business.

The blogosphere is predictably apoplectic over what is widely viewed as an ill-reasoned, over-aggressive attack by the large law firm against a relatively defenseless adversary. I have not seen any descriptions of the suit that take the position that it was a good idea; you can decide for yourself. Read the amended complaint; and see what SEOmozBlog, CL&P Blog, the Cleveland Plain Dealer, the Citizen Media Law Project, and TechDirt have to say.

[Update: Here's another good discussion from the Technology and Marketing Law Blog.]

Say what you will about the merits. If the case stands for anything, it serves as a reminder that when Big sues Little, Big should be prepared to fight both in and out of court. While Jones Day may have prevailed to date in Federal court, it's clearly taking a beating in the court of public opinion.

Verizon Employees Peek at Obama Phone Records

Some overly-curious Verizon employees took a peek at President-elect Obama's phone records and have been disciplined by the company as a result. This is yet another example of why it pays to be sceptical when a trusted party promises to keep personal information secure. There is always a way for that information to end up in front of someone who has no reason to see it, and more often than not the guilty party is someone on the inside. The same thing happened with passport records some months back.

EU Reports on Real Crimes in Virtual Worlds

ENISA, the European Network and Information Security Agency, has just issued a Position Paper following a study of criminal activity involving on-line "virtual worlds" (MMOGs). Criminals have quickly realized that there is real-world value to virtual-world assets, and have employed various ways of extracting that value from unsuspecting gamers.

The paper notes that "criminals are increasingly exploiting cross-over points between virtual and real-world economies. It is the failure to recognise the importance of protecting the real-world value locked up i this grey-zone of the economy which is leading to the 'year of online world fraud.'" The paper divides the criminal exploits into three categories: (1) identity theft; (2) taking advantage of flaws in the virtual-world economies ("illegally" duplicating or creating virtual-world objects or wealth); and (3) in-game theft (stealing virtual assets from in-game characters).

The paper makes a number of recommendations, of course, many of which boil down to shining a light on the criminal activity and educating the public about the risks associated with participating in virtual worlds.

As for what it calls "Corporate Virtual Worlds," however, the paper notes that there is very little research on the security of those worlds. It recommends that "enterprise-critical data should not be processed within a virtual world that is not entirely under the company's control and that no client or server beyond a protected local area network, administered by trusted parties, should be used." That's a caution worth considering if your company is considering setting up shop in Second Life or a similar public on-line world.

Here is the press release summarizing the paper. Thanks to The Register for the post on this one.

Could Baiting Infringers Create an Implied License?

TechDirt reports (via TorrentFreak) about a situation in the UK involving copyright owners that may have licensed content to a company with the understanding that the licensee would upload that content to various bit-torrent distribution networks. The licensee would then reportedly hire a law firm to send threatening letters to those who took the bait and downloaded the very torrent files that the licensee had uploaded.

If we take the report as true, then I'm wondering whether those who downloaded the files could argue that, by uploading the files to a public file distribution network, the licensee was impliedly consenting to the downloads that are the focus of the law firm's demand letters.

Seems to me this is kind of like letting your horse out of the barn and then calling the sheriff when you see a stranger in the saddle.

Thanks to Michael Scott for the tweet.

NYU's ITP Winter Show Dec. 17-18

Put this in your calendar; the NYU Interactive Telecommunications Program Winter Show is scheduled for December 17 and 18, 5:00 p.m. to 9:00 p.m. at 721 Broadway, 4th Floor, South Elevators, here in NYC. I try to make ITP's winter and spring shows, and love seeing all the intelligent, creative projects brought to life. More info.

Thar's Gold in That Thar Prior Art!

From Slashdot comes this report of Article One Partners, a website that aims to encourage de-tech-tives (yes, I'm proud of that one) to locate and submit patent-invalidating prior art. $50,000 could be your reward, says the site, for doing so.

It's an interesting approach, but not a new one; BountyQuest did something similar (link is to Internet Archive cache) back in the 2000-2003 timeframe with a reward-driven effort to invalidate, among others, the Amazon one-click patent. BountyQuest didn't revolutionize prior art disclosure, and I'm not going to hold my breath on this one.

Update: Ars Technica is all over this one -- it appears Article One's founder has applied for a patent on some of the techniques used on the site. Now there's some good de-tech-tive work!

Tough Massachusetts Data Regs Delayed

Massachusetts has elected to delay implementation of its tough new data breach regulations from January 1 to May 1, 2009.

The regulations, among the most stringent in the nation, would require any entity holding personal information on Massachusetts residents -- whether located within our outside of Massachusetts -- to, among other things, encrypt records and files containing personal information that will be transmitted over a public network or wirelessly; introduce secure user authentication protocols and other security measures; put in place an information security program, including firewall protection; monitor unauthorized use of their systems; and create an inventory of their systems that maintain defined personal information on Massachusetts residents.

While it is hard to argue with the goals of the regulations, they are an example of the difficulties faced by small and large businesses alike when trying to deal with sometimes conflicting local attempts to legislate computer security.

Patent Lawyers Pony Up to PTO

The US Patent and Trademark Office is going to start charging patent practitioners $118 per year for the privilege of continuing to be registered to practice before the office.

It will be interesting to see how the ranks of registered patent attorneys dwindle as a result. Also, I wonder how many won't receive the notice because of a failure to keep current contact information on file with the PTO.

Thanks to Dennis Crouch and The Invent Blog for this.

Credit Crunch-Opportunities for IP Counsel to Add Value

IP Finance has a list of five ways that the credit crunch may affect IP-related development and transactions. All of them have implications for IP counsel; ways that attorneys can help clients get their IP houses in order, so to speak.

The one that caught my eye is the first on the list: companies may turn to open source or outsourcing to help reduce software development costs.

Both routes are not without risk, of course. If the developers (whether in-house or outsourced) are using open source tools or code to create new software, the company needs to know how that choice could affect the marketability of the resulting product. Outsourcing the development requires careful planning and a strong agreement so that the client can keep control over development costs and timing. Two opportunities for IP counsel to help in ways that truly add value.

Double-Dipping Counterfeit "Blu-Rays" from China

From either the "Adding Insult to Injury" or "You Get What You Deserve" departments comes this report that Chinese counterfeiters have been copying movies from Blu-Ray discs, burning them on to discs in a DVD format, then passing off the fakes as Blu-Rays.

Proving that you just can't trust anybody these days. Thanks to Engadget for this one!

More Consideration of the Long Tail Theory

I had posted some days ago about a research study that questioned the Long Tail theory. Here is more thought on that from Chris Anderson in Wired, who concludes that "It's hard to make money in the Tail. . . . [I]t's also hard to make money if you don't have a Tail (to satisfy minority taste, which improves the consumer experience), but the revenues are disproportionately in the Head."

Thanks to Kevin O'Keefe for the heads up, via Twitter.

A Place for Wikipedia and On-line Tools in Court?

There have been several recent blog posts about how judges are being instructed not to use Wikipedia as an authoritative source for important information to be used in their decisions.

To which I can only respond, "Well, duh."

Wikipedia and other unverified sources of information do have their places in court. When used for background information, or where the exigencies of the situation do not allow for a more refined exposition of the facts, Wikipedia can be helpful to the court and useful to the outcome. But when you get to the final stages of a lawsuit or a criminal case, where a judge or jury is going to render an ultimate (pending appeal) decision on the merits, then it's time to migrate to traditional, or at least verifiable, sources of information.

I recently defended against a motion for a temporary restraining order in Federal Court where one of the key facts in my favor required me to translate a foreign-language document that I had received only hours before the hearing. Unfortunately, time did not permit me to locate and retain a professional translator who could generate a certified translation of the document. That would have been my preferred method if there had been time. Instead, I used the Google Translate tool, entering the text of the original document and using the tool to generate an English translation.

I was not about to represent to the Court that this document was a definitive, authorized translation, however. So in my declaration I laid out in careful, step-by-step detail exactly how I had produced the translation, so that both my opponent and the Court could reproduce my steps.

The Court accepted my translation for purposes of the motion. Opposing counsel, on the other hand, criticized me severely for using what he considered to be an inaccurate translation of the foreign document. I was comfortable with my position, nevertheless -- I had made no ultimate representation to the Court that the Google translation was the final word, so to speak, on the matter, and because the ruling (which generally favored my clients) was preliminary, the Court had not closed the door on the issue.

The takeaway point is that there is a place for web-based information sources to be used in court disputes. But they need to be used intelligently, and beware the attorney who believes what is on the computer monitor simply because it is on the monitor.

Two Sides to Black Friday Scoop Disputes

Thanksgiving is approaching, where we all take a day out of our busy lives to pause, thank the Deity who occupies that space in our lives that we reserve for such a Being for all of the blessings that we have been given, and then gorge ourselves silly. With that out of the way, we turn immediately to "Black Friday," where hundreds of thousands of us arise from our tryptophanically-aided slumbers at obscenely-early hours to stand in long, winding, dark, cold lines in front of one of our nation's Massive Retail Giants so that we can be assured of acquiring even more of said blessings.

Sociological commentary aside, what makes Black Friday interesting from a legal perspective is the annual dust-ups between a growing collection of Scrappy Websites on the one side, and Massive Retail Giants on the other, over the unauthorized disclosure of what the Massive Retail Giants are going to selling at Ridiculously Low Prices that Friday morning. Some examples of what's out there are here, here, and here.

The Scrappy Website TechCrunch has posted a fairly typical cease-and-desist letter, this one from a law firm representing Wal-Mart, demanding that TechCrunch take down what is claimed to be a preview of a Sam's Club Black Friday ad that appears on its CrunchGear site.

(The posting of the letter, by the way, is a fairly typical tactic -- the lesson being that if you're going to write a cease-and-desist letter to a Scrappy Website, there's a better than 50-50 chance it's going to end up being posted for all to see. So triple-proofread that letter and try to make sure it doesn't sound too snarky. And you might want to leave off your direct email address and contact numbers.)

The letter presents a good opportunity to review the usual bases of Massive Retail Giant claims against Scrappy Websites that post these scoops. These claims can be summarized as follows:

1. Unauthorized disclosure of trade secrets (i.e., information about what is going to be on sale and what the sale prices will be);

2. Copyright infringement (where the Scrappy Website has posted images of the Black Friday circular)

And just in case the offending Scrappy Website can be considered a "service provider" under the Digital Millennium Copyright Act, the letter includes a DMCA takedown notice that is designed to drain the Scrappy Website's safe harbor. Very thorough.

Of course many of the Scrappy Websites that receive these notices routinely pooh-pooh the Massive Retail Giants' threats, post the cease-and-desist letters, and brazenly continue to display the offending ads. The fans of the Scrappy Websites then fill the sites with nasty commentary poking fun at the Massive Retail Giants for trying to push the Scrappy Websites around. "This information is going to be public anyway," they snort, "so why try to stop it now?"

That's an easy gut-reaction position to take. But there are two sides to any argument, and I can see a couple of legitimate reasons why the Massive Retail Giants are concerned about these early disclosures.

First, some of these early leaks are just wrong. The TechCrunch post is one example. It originally claimed that Wal-Mart was going to be selling a Nintendo Wii package at an extraordinarily attractive price, and it posted a copy of an ad that appeared to back that up. Some days later, however, it issued a correction to the price; the package price may actually be considerably higher (almost double, as a matter of fact). Wal-Mart has a legitimate concern that its customers will see the first (low) price on the TechCrunch website but not the second (high) one, show up on Black Friday expecting to pay the cheaper price, and be disappointed. No retailer likes its customers to be disappointed.

Second, there is no doubt some competitive maneuvering going on here. Each Massive Retail Giant wants to lure as many customers as it can to its stores on Black Friday, and is tailoring its ads as best as it can to accomplish that goal. Leaked ads give the competition both the information and the time to react and devise offers that may be more attractive to consumers. Each consumer can only wait in a single long, winding, dark, cold line, and each Massive Retail Giant wants the longest, windiest, darkest, coldest lines to be the ones in front of its stores.

On the other hand, to protect information as a trade secret it must be treated as a trade secret. If any of these spats ever made their way to court, the Massive Retail Giants would need to show that the information they were claiming to protect had been treated internally and externally as trade secrets, guarded by non-disclosure agreements, locked rooms, and password-protected computer files.

As for the copyright infringement claim, it is frankly hard to argue against that at least from a technical perspective. That said, I wonder whether the Massive Retail Giants have registered any of those advertising fliers with the Copyright Office. Given that they make no money off of the sale of the advertising circulars, statutory damages and the potential for attorneys' fees would probably be the best they could hope for.

Woman Hires (Virtual) Private Eye in Second Life

Following on a recent post about a Japanese woman who was arrested for allegedly "killing" her ex-boyfriend's avatar in a "Second Life"-type game comes this just-as-odd report from the UK.

A woman has filed for a divorce from her husband after she caught her husband's avatar chatting affectionately with a female avatar in Second Life. The couple had an interesting Second Life history; before they were married in real life, each played the role-playing game, and their avatars (hers was "DJ Laura Skye," his was "Dave Barmy") became partners in the game. That was, until the woman caught the David Barmy having in-game sex with a prostitute avatar. DJ Laura Skye immediately broke up with Dave Barmy, even as the couple stayed together in real life.

Evidently hoping for the best, the woman decided to test the fidelity of her boyfriend's avatar. She retained a virtual private eye named Marke Macdonald to set up a "honeytrap" designed to provide the David Barmy avatar an opportunity to stray again. However, Barmy passed the test with flying colors, speaking warmly of only of DJ Laura Skye all night. As a result, the virtual couple reunited in Second Life, and, incidently, their "meatspace" counterparts married in Cornwall.

A happy ending? Sadly, no; the woman then found the David Barmy character sweet-talking another female character in the Second Life game, and filed for a divorce -- in real life.

Yet another example of virtual world events having real world consequences. I find the use of the virtual P.I. to be particularly interesting.

Thanks to Michael Geist's BNA Internet Law and News feed for the heads-up on this one.

(What's So Funny 'Bout) Peace, Love, and Understanding?

The Charter for Compassion may seem a little off-topic for this blog, but we all could use a little bit of love these days. It's a project that is attempting to build bridges among religions and cultures based on a common foundation: the Golden Rule, variants of which exist in all religions as well as in almost every nook and cranny of human society.

Conceived by Karen Armstrong, an authority on comparative religions, the idea won the TEDPrize, awarded by TED Conferences. The TEDblog has several posts on the project, including one that embeds a video that is being translated and captioned by volunteers using the dotSUB platform.

TED is a wonderful source for short (generally under 20 minute) videos featuring interesting talks by fascinating speakers that I download to my Blackberry for train viewing. And I've done some work with the folks at dotSUB; they have developed a great tool for translating and captioning video content over the Internet.

Classmates.com Class Action Lawsuit

I receive several emails each month from Classmates.com, advising me that someone has visited my profile, signed my guestbook, or even was just thinking of me (which somehow is the most poignant of all). The first time this happened, I was instantly time-warped back to my high school years, and eagerly clicked on the proffered link, breathless to learn whether Somebody Really Liked Me.

But what's this? When I clicked the link I learned that I have to pay to upgrade my account to find out who from my past has been passing me these digital notes. This of course drags me instantly back to the present, where my need for an upgraded Classmates.com account that I have to pay for ranks right up there with my need to buy an electric zither.

Well, my fellow Classmates.com user Anthony Wallace didn't share my fiscal sensibilities -- nothing wrong with that, of course -- but now he alleges that, after he'd paid for his upgraded account in response to one of those enticing emails, NOBODY HAD SIGNED HIS GUESTBOOK! This could mean one of two things: either Mr. Wallace was the hapless victim of the cruel continuation of a high school-era prank, or Classmates.com had unfairly enticed him in to parting with his hard-earned cash for an account upgrade.

Mr. Wallace, as a representative of a putative class of similarly-afflicted potential plaintiffs, has sued Classmates.com and related entities for misrepresentation and other torts.

More here from Wired; a copy of the complaint can be found here.

Leggo My Lego -- Gimme a Mega!

The European Court of Justice has ruled that the familiar shape of the Lego brand plastic building block cannot be protected under European trademark law.



In a decision that competitor Mega Brands, Inc. said was "not only a victory for us, but . . . a victory for all the consumers around the world that have made the Mega Bloks brand the No. 1 pre-school building block," the court noted that "'signs which consist exclusively of … the shape of goods which is necessary to obtain a technical result … shall not be registered." This "precludes registration of any shape consisting exclusively, in its essential characteristics, of the shape of the goods which is technically causal of, and sufficient to obtain, the intended technical result, even if that result can be achieved by other shapes using the same or another technical solution."

Nigerian Scammers Discover Facebook

HELLO MY FACEBOOK FRIEND. MAY THIS COMMUNICATION FIND YOU ROTFL WITH HEALTH AND BEST OF CHEER. I AM YOUR LONG-TIME BFF FRIEND FROM YOUR FACEBOOK PAGE ON THE INTERNETS, AND OMG I AM CURRENTLY FINDING MYSELF IN A SITUATION OF MOST CONSIDERABLE DISTRESS THAT REQUIRES THE IMMEDIATE RECEIPT OF FUDNING FROM YOUR MOST GENEROUS AND KIND SELF IN THE AMOUNT OF WTF US$524 (FIVE HUNDRED AND TWENTY-FOUR UNITED STATES DOLLARS). PLEASE CONTACT MYSELF YOUR FACEBOOK FRIEND AT YOUR EARLY CONVENIENCE TO ASSIST ME IN RESLOVING SAID DIFFICULTY IN MY PERSONAL LIFE. KTHXBAI.

If you have a Facebook page, beware of odd requests from "friends" that ask you to wire them money. Nigerian scammers are apparently using Trojan-type exploits to steal Facebook passwords and then pose as a friend in need to ask for money.

My two haikus based on other Nigerian "419" schemes follow, with a link to many more (my second one, I'm proud to say, earned a runner-up prize that I never received from The Register. The recognition, of course, is reward enough):

mysterious mail
distinguished salutation -
send account number

generous kind sir
of sterling reputation -
help with stranded funds?

No Expectation of Privacy on Work Computer

A recent New Jersey case makes the point that you need to assume that everything you store on your work computer is accessible to your employer. It also highlights the need for even small companies to employ some reasonable level of system security.

The facts read like something that could make its way in to the next season of "The Office." Employer hires ex-con employee out on probation to be a part-time bookkeeper, apparently looking past his conviction on 14 counts of forgery for stealing over $220,000 from an earlier employer. Employee is told that the computers are company property when he starts work, and soon becomes a trusted employee, rising to the level of full-time bookkeeper with broad, finance-related job duties that touch on a wide range of Employer's operations.

Employee also owns his own company, selling used computers and related items. Employer expands employee's duties further to include computers. Employer upgrades computer system and installs a network. Employees log in to the system by entering a common password -- cleverly set to be "password" -- and then their name.

Employer begins purchasing computers from employee, starting with a $1500 tower and then employee's used laptop. The laptop sale was a double score for employee, since he had used his boss's credit card to purchase the laptop originally and then paid the bill with a check that he had employer's system issue. Employee was not entirely self-centered; he did list the laptop as a company asset on the employer's depreciation schedules.

Employee next calls employer's payroll company and gives himself a raise, from about $40,000 per year to $125,000 per year. This, finally, is discovered and employee is sent packing. He leaves the computers behind, which are searched when the police are alerted to employee's creative asset enhancement program.

Employee -- now, again, a defendant -- moves to suppress the evidence of the computer search, claiming that the laptop -- the one he had purchased for himself with company money and then sold back to the company -- belonged to him. He also claims that the $1500 tower computer was his as well.

The bottom line: the employee had "no reasonable expectation of privacy in the personal information stored in his workplace computer." Employer owned the computers, they were kept in the company's offices, the employee was so advised when he started work, the tower was connected to the company network, the laptop contained business software, and other employees had equal access to the computers.

Employees: Know your rights . . . or lack thereof, where personal information and company computers are concerned.

Employers: Secure your systems and be wary of hiring serial fraudsters.

I wrote on this workplace privacy issue some months ago.

Thanks to the e-discovery law blog for this one.

"Long Tail" Debunked?

The Register today reports on a new analysis of the popular "Long Tail" theory ("The future of entertainment is in the millions of niche markets at the shallow end of the bitstream." See here also.) suggests that it may be a lot of, well, hooey.

The new study, conducted by Will Page of the MCPS-PRS Alliance and others, argues that "instead of following a Pareto or 'power law' curve," as the Long Tail theory would suggest, "digital song sales follow a classic Log Normal distribution. 80 per cent of the digital inventory sold no copies at all - and the 'head' was far more concentrated than the economists expected."

The analysis of tens of millions of on-line music transactions revealed that 80 percent of the revenues were generated by roughly 52,000 songs, which, as The Register points out, is about the number of songs included in the "typical inventory of a conventional high street record store."

Clients who are building businesses -- or investing in businesses -- that depend on Long Tail assumptions being correct would do well to consider this alternative view.

Bletchley Park Receives Preservation Funds

From the "Worth Saving" department comes word that Bletchley Park, the center of England's WW II code-breaking (and making) center, has received a much-needed £300,000 preservation grant from English Heritage. The site also houses the National Museum of Computing. The Register is selling an account of the role of cryptography in WWII, as well as a pretty cool-looking t-shirt that features the Enigma machine, used by Germany to encode its communications during the war. Profits from the sale of the shirts go to Bletchley Park and the National Museum of Computing.

Here's a short account of one visitor's trip to Bletchley.

In related news, 26 vintage Enigma machines were found last month in an old army office in Madrid.

A very clever flash-based Enigma simulator lets you code your own secret messages.

Bletchley Park is featured prominently in Neil Stephenson's Cryptonomicon.

The contribution of Bletchley Park extended beyond its role in shortening the war; it is really the birthplace of modern computing. The first programmable, digital, electronic computers -- the Colossus Mark I and II -- were implemented there and used to help decode encrypted German transmissions. Learn more here.

Japan's Super! Accelerated! Examination! System

On October 1, the Japan Patent Office instituted its "Super Accelerated Examination System" -- sort of a bullet train for patent prosecution. (Note that I have used italics to lend a sense of speed to the term "bullet train." They don't teach you that in law school.) Seventeen days later, the JPO granted its first patent under the program (for an application originally filed in 2007). The program is scheduled to operate on a test basis for six months.

Applicants must have filed both in Japan and abroad, and must be able to demonstrate concrete plans to use the invention commercially. There are several other requirements and exclusions. The goal of the process is to further reduce (from the existing Accelerated Examination System) the time that it takes an applicant to receive a first and (if necessary) second examination result. More here.

The USPTO has an Accelerated Examination system; about 40% of the petitions requesting accelerated treatment are granted, but at least early on there were reports that few of the granted petitions resulted in issued patents. There are a number of strings attached to taking advantage of this process. I wrote about this back in 2006. The procedure has not really taken off in the US, so it will be interesting to see how the enhanced Japanese version plays out.

Open-Source Hardware Licenses?

Open source concepts are not only for software. Hardware designers are allowing users free rein to build and tinker with product designs, with interesting results.

From the Make Blog, via Slashdot, comes the story of Mitch Altman, inventor of one of the most useful devices known to man: the "TV-B-Gone," which is a portable device that will turn off dozens of brands of television sets from many feet away. Great if you are the type of person who likes to anonymously enrage a crowded sports bar just as that overtime field goal kick is midway to the uprights.

Altman patented his idea, but decided to make a kit available to the public and is happy to hear from those who improve his design or modify it in interesting ways.

I discussed something similar recently, in my post about Dr. Johnny Chung Lee and his Nintendo Wii controller ideas. What I haven't considered is what kind of a license would cover the intended grant of rights.

The difference between open-source software and open-source hardware lies in the nature of the rights involved. Open source software (which includes firmware) is grounded in copyright. The copyright -- and the rights associated with the copyright -- arise and exist as of the moment the software is created and fixed in some tangible medium of expression.

Rights to a device, on the other hand, are grounded in patent. The patent is a discretionary award from the sovereign, not a right that exists ab initio. While the inventor can certainly create a document that is called a "license" to a pending patent application, until that patent issues the agreement is really just a contract, enforceable only by its terms (as opposed to being enforceable by way of patent law). Once the patent issues, the license would have both contractual and patent law on its side.

Such a license could make enforcing typical open-source conditions interesting -- what is the tangible analog of freely distributing modified code? Making the modified product design freely available, while still allowing the licensee the right to make and sell the modified product at a profit? And what of the modifications made to the original product? Would the license permit the licensee to patent the improvement, but require it to license the improvement on the same terms as the original?

I'm aware that there have been a few stabs taken at creating open-source hardware licenses, but the ones that I've seen seem to be grounded in copyright -- in particular, focusing on the specifications that are being licensed as opposed to the product itself. And I'm of course aware that many physical products contain a lot of software, without which the products would not operate. So for some products, the software/firmware license may suffice. But I'd love to hear if something that considers the patent issues discussed above has been proposed.

Auditude Moves to MySpace; Monetizing Pirated Uploads

From the "if you can't beat 'em, then at least make some money off of 'em" department comes the report that Auditude and MySpace have signed a deal that will layer the Auditude platform over video content on MySpace. Auditude creates tags for its clients' video content, then uses those tags to identify that content on the Internet and deliver targeted advertising when that content is viewed. In other words, Auditude clients can make money by selling ads that the Auditude system will deliver -- even to videos that are uploaded without the client's permission.

This is a great example of reactive technology. Efforts to stop the spread of proprietary video content over the Internet have had limited success, to put it mildly. Technology such as Auditude's begins with the premise that the content will be distributed, and turns that distribution into a business opportunity.

Vote -- Even if They Say You Can't

Wired has a useful how-to on casting a provisional ballot, which is what you should do if you (a) are registered to vote, (b) are in the correct polling place, and (c) are told that you are not on the registered voters' list.

So go vote, already!

Domain Name Tasting Down, ICANN Reports

According to a report from Marty Schwimmer at The Trademark Blog, an ICANN-related email has announced that domain tasting was down 84% in July.

July was the first month in which new ICANN rules went into effect charging domain name owners 20 cents per domain name purchased, whether or not the owners decide to keep the name. Up until July, the charge was refunded for domain names that were "returned" within five days of purchase, which led to the practice known as "tasting" -- buying up a bunch of domain names, testing them for Internet traffic, keeping the ones that were likely to result in ad revenue, and returning the rest.

Tasting is frustrating for those who have a genuine interest in actually using a tasted domain name; if the name is constantly being tasted, it becomes difficult to purchase.

I discussed this in more detail back in February in an article that was published in the New York Law Journal and a few other places, and noted that when a similar charge was levied by the Public Interest Registry, which manages domain names for the .org domain, tasting declined by something on the order of 90%.

In short, ICANN put a serious dent in the problem by adding a small but significant cost component to an activity that was formerly free.

Lawyers Doing Interesting Non-law Things

From Wired comes a story about a Merrillville, Indiana attorney named James Hough who built his own old-style motorized bicycle from scratch. He cleverly dubbed it the "Houghmade Cycle Works 71," and it is a gorgeous piece of work.



A few weeks ago, the Lexington (KY) Herald-Leader featured a story about Charlie Kratzer, an associate general counsel at Lexmark, who had decorated the walls of his basement rec room using Sharpies. The results are nothing short of amazing. (Go to the story for a panorama view.)