Should ISPs be Compensated for Responding to RIAA Notices?

Following on my earlier post about the RIAA's apparent decision to move to a "three-strikes" approach to copyright enforcement comes this report of a small ISP that responds to music industry disconnect demands by asking for a billing address. It seems that copyright owners are not terribly interested in paying ISPs for the time and trouble it takes to disable an account.

In the view of this ISP, if the RIAA is going to expect ISPs to act as its enforcement arm, then it's reasonable for ISPs to expect to be compensated in return. At some level, this makes sense; courts impose filing fees on plaintiffs, and given that the RIAA's three-strikes policy will shortcut many of the legal procedures that slow enforcement, perhaps it's time for ISPs and the RIAA to agree on a sensible schedule for dealing with enforcement demands.

On the other hand, resisting enforcement until the bill is paid does not appear to be covered by the DMCA. Under the DMCA's Safe-Harbor provisions for ISPs, an ISP that receives proper notice of an alleged infringement is required to "respond[] expeditiously" to remove or disable access to the offending material. Assuming that the takedown request complies with the level of specificity required by the DMCA, the question is whether an ISP is responding "expeditiously" if it demands compensation before it acts.

Martindale-Hubbell - Big Plans for Lawyer Ratings?

A minor Internet kerfluffle has arisen over the news that Martindale-Hubbell has made redundent, as our friends in the UK say, its staff of "Peer Review Ratings" specialists. The news inspired two branches of discussion: (a) whether M-H was abandoning attorney ratings, and (b) whether M-H remains relevant in the face of recent Internet-based upstarts such as LinkedIn, FindLaw, Avvo, and the like.

M-H has attempted to address both concerns in this blog post, which promises "Big Plans for Martindale-Hubbell Ratings." While admitting, somewhat ambiguously, that its new plans included "a change in the role and responsibilities of the ratings specialists" (which I suppose is one way of describing being laid off -- "I heard you got laid off." "No, my role and responsibilities have changed. I now have no role and no responsibilities.") the post goes on to promise that a changed ratings system is in the works.

I have to join those who have critiqued M-H's post for its unfettered use of marketing jargon-speak to convey little substance about what those changes are and how they will make the M-H service more relevant than other, competing (not to mention free) services. Kevin O'Keefe does a nice job of dissecting the M-H post, and of highlighting its Martin Lukes-like use of marketing-speak to convey more image than substance.

(As an aside, I do miss Martin Lukes terribly. I highly recommend the book he "co-authored" with the Financial Times's Lucy Kellaway, "Who Moved My Blackberry?" for a funny take on slogan-driven management trends.)

That said, while I'm sure that M-H has high hopes for whatever form its ratings system is going to take -- and I wish whoever its new "VP/ Product Champion of Ratings" is all the best -- it will be a serious challenge for M-H to develop a system that is effective, accurate, useful, and worth using.

Patentable? Wolf Poster Used to Herd Sheep

1. A method for herding sheep, the method comprising

a. collecting a plurality of sheep in a defined area;

b. determining a single direction in which to herd said sheep;

c. positioning at a point approximately 180 degrees from said single direction an image of a wolf of sufficient size to be visible to the most distant of said plurality of sheep;

d. moving said image of a wolf in said single direction in which said plurality of sheep are to be herded

This, would satisfy the Bilski "machine-or-transformation" test, of course, because it "transforms" a milling plurality of sheep into a focused, directed herd.

Keeping Social Media Posts Professional

A few weeks ago I responded to a question on LinkedIn concerning the legal issues surrounding the re-use or quoting of posts from Internet bulletin boards and the like. Good thing I was careful about what I wrote, because my entire response was quoted in the Charlotte Web Development blog.

The takeaway here is that when you are using social media for business purposes, don't slack off on the quality of what you contribute.

RIAA Battles Now Shift to ISPs

According to a Wall Street Journal article, the RIAA is set to move away from its strategy of suing individuals for allegedly downloading copyrighted music without permission. After more than 35,000 lawsuits and lots of negative press, the association apparently has decided that legal due process has its downsides.

It is this "no more RIAA lawsuits!" shoe that has been making most of the headlines today. The other shoe, however, remains to be dropped, and we're not talking any little old Muntader al Zeidi size 9 shoe here -- this other shoe could be one of those monster Shaquille O'Neil size 23s.

According to the WSJ, the RIAA is negotiating agreements with Internet service providers to implement some form of a "three strikes" policy. As described in the article, the three strikes policy would work something like this:

The RIAA "will send an email to the provider when it finds a provider's customers making music available online for others to take.

"Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether."

The three strikes enforcement policy avoids all of that expense, delay, and publicity of a court battle. Oh, and due process. That's out too. With copyright law being as nuanced as it is, and far from clear on so many issues, this three strikes policy is more likely to tread on more listeners' legal rights than is the present policy of individual lawsuits. Are ISPs now going to become the arbiters of fair use? Can we really expect them to devote the time and money to decide competently whether an individual listener's downloads were legal or not?

The Electronic Frontier Foundation has a good post discussing these issues in more detail.

3 Geeks "Must Read" Blog Posts

Thanks to the "3 Geeks and a Law Blog" blog for including an "Infringing Actions" post among its exclusive list of 173 "must read" blog posts of the past year (or so -- some dip back in to 2007).

Personal pride aside, this is a really good way to sample some blogs that you may not be following.

New Supplementary Search Feature for PCT Patent Applications

From IPKat comes this update that may be of interest to those filing foreign patent applications via the Patent Cooperation Treaty. As of January 1, 2009, WIPO will implement a new "supplementary international search" (or "SIS") service to all applicants. The point of the SIS is to offer a second layer of search above and beyond that provided by the applicant's usual searching authority. See the WIPO announcement here.

Practically speaking, the SIS will probably be commissioned by applicants to be run in a language different than that of the initial search. Initially, only three searching authorities will offer the SIS: Russia, Sweden, and Norway, but WIPO anticipate adding "at least three more" in 2009 and 2010.

While this may seem like a really bad time to be adding an additional expense to foreign patent filings, if used properly the SIS could end up saving applicants money by unearthing prior art for key applications while there is still time to deal with it during prosecution.

Report from NYU's ITP Winter Show

I paid a visit to NYU's Interactive Telecommunications Program's Winter show last night, and as usual was blown away by the hard work and creativity of many of the projects. The level of sophistication seems to increase from show to show. The folks at ITP provided a handy map to the show that categorized the projects into 11 different general subject areas (sustainable, assistive technology, games, etc.). Very helpful. I took a few short videos of some of the projects. For more, go to the Make Blog's more comprehensive post.

This project is called "Magic Table," by Seung Jun Lee. The screen interacts visually and musically to objects that are passed or placed in front of a sensor. I think this would also make a great video wall installation in some public place.



TwiTerra, by Steven Lehrburger, tracks "re-tweets" -- re-transmissions of Twitter messages -- by projecting the approximate location of messages as they are forwarded from one person to another around the world.



Matt Parker's "Face of the Nation" did a nice job of morphing all of the US presidents and the current president-elect into a looped video that's fun to watch.



"Ballet Dancer," by Ramona Pringle and Xue Hou, projects moving images of a ballet dancer against floating layers of gauze and tulle. It reminded me a bit of something a Disney Imagineer would do.



There were two projects that were similar in that they used a library of captured images to create a moving image, kind of like what Chuck Close is known for doing in some of his portraits. One of these is called "membrain," by Yasser Ansari, Peter Horvath, and Bruno Kruse. A video of membrain appears below. The other is "Video Mosaic" by Meredith Hasson. Here is a short video of membrain:



The show runs again tonight, December 18, from 5 to 9 p.m. There will be another one in the spring.

UK Surveys IP in the Workplace

The UK Intellectual Property Office's IP Crimes Group has released research results that appear to show a complacency towards IP infringement issues in the workplace. The study focused on IP infringement in the workplace, with information gathered by way of interviews of a random sample of managers.

Some of the findings include:

-- 75% of companies allow employees to advertise items for sale to their colleagues; DVDs and CDs are the most commonly-sold items.

-- Almost 20% of the managers were aware of counterfeit DVD sales being made at work, with lower-level managers being more aware of such sales than were upper-level managers.

-- Few of the surveyed managers say that their organizations train employees not to download copyrighted material without the copyright owner's permission; 28% report that there is no such training, and 45% say that "employment contracts forbid illegal activity," which is not the same as training.

-- As for business software, roughly half of the managers said that they either did not know how often their organization checked to make sure that all business software was properly licensed, or that such audits occurred "less than once a year."

-- While 99% of managers would turn to the Internet and their human resources departments to educate themselves on their company's rights and responsibilities with regard to copyright and trademark issues, about 40% would ask their lawyers.

-- Nearly three-quarters of those surveyed would find it useful to receive some sort of information about IP issues in the workplace.

For those of us whose careers are deeply intertwined with IP law, these findings can serve as a bit of a wake-up call. Not everybody in business is as sensitized to identifying and managing IP issues as we are. There is still plenty of work to be done . . .

List of Law and Tech Lists

For you "top 10" junkies, here is a nice compendium of links to law- and technology-related "top" lists, care of the 3 Geeks and a Law Blog.

Twitter Tips for Lawyers

Wondering what the value could be to joining Twitter? Try thinking of it as micro-blogging. If you enjoy the challenge of a 20-page limit on briefs, you may love how Twitter dials that way down, to 140 characters per transmission, or "tweet."

If you're thinking of adding Twitter to your personal or firm marketing mix, this concise article provide 16 ways lawyers can use the service to their benefit. Hats off to Robert Ambrogi for the good work.

A Brief Guide to Obama's Change.gov Site

The incoming Obama administration's Change.gov website is taking advantage of a number of standard Internet tools, using them for the first time in such a high-profile way to give citizens a sense that they are participating in the structure of the new administration. I say "give citizens a sense" because it remains to be seen how the citizen feedback will be used and what impact us "ordinary folks" will have on the new administration's policies and procedures.

Here are the tools that strike me as particularly worth talking about:

1. Most of the site ("except where otherwise noted") is published under a Creative Commons Attribution 3.0 License, which permits users to share and adapt the material provided they attribute it to Change.gov. This is probably the highest-profile use of a Creative Commons license to date.

2. A periodically-active "Open for Questions" tool allows individuals to post questions that they would like the transition team to answer. Users can vote on submitted questions, in a Digg-like fashion, a feature that racked up more than 600,000 votes in OfQs first round. The team has promised to respond to some of the "most popular" questions.

The OfQ tool also allows users to "Flag as inappropriate" any question, presumably relying on people's common sense to flag profane or off-topic issues. It appears, however, that the tool was also used to bury questions that were merely "uncomfortable," in particular those that included the name "Blagojevich." It will be interesting to see whether the next iteration of OfQ modifies the "flag" feature.

3. "Your Seat at the Table" promises to publish all materials submitted to the transition team by interested third parties (read "special-interest groups"), which in addition to opening up the lobbying process a bit has probably resulted in a drastic reduction in the volume of written material submitted to this transition team versus what was submitted to previous transition teams. Meetings between interest groups and the transition team are also noted. At the time of this blog entry, the list of submissions runs 22 screen-pages.

Users can both comment on submissions and submit their own documents to be considered in connection with each submission. The entries are searchable, which is helpful given that they appear to be organized chronologically.

4. "Join the Discussion" periodically posts short videos that describe issues, then encourages users to comment. A recent discussion topic was "How is the current economic crisis affecting you?" After comments are received (3,572 in this case) the topic is closed, and the transition team responds.

5. Health care has been identified as an issue of particular concern, because Change.gov gives individuals an opportunity to sign up to host local discussions on health care issues between December 15 and 30. The selected moderators will receive a "a special moderator kit that will give you everything you need to get the discussion going. And Senator Tom Daschle, the leader of the Transition's Health Policy Team, will even choose some discussions to attend in person."

The site also has the usual sort of pages: a blog, a pressroom, an agenda page, a page that encourages people to share their stories and hopes, and a lot more.

The Internet makes this the easiest time in history for individuals to connect with their leaders. It's great to see the new leadership team taking advantage of these tools. The risk, of course, is that peoples' already-high expectations will be heightened even further by this process, and there will be an unpleasant backlash when compromises have to be made for the sake of politics.

New Proposed Patent Jury Instructions -- comments wanted

From Patently-O comes this note that a committee formed at the request of Federal Circuit Chief Judge Paul. R. Michel has released a set of Model Patent Jury Instructions for public review and comment. I/P Updates reports that comments are due by February 1, 2009.

This appears to be a project that is spearheaded by the Intellectual Property Owners Association. While not an "official" committee in the sense that it is endorsed by a particular court, the resulting instructions are comprehensive and well-thought-out. While any set of jury instructions will ideally be closely tailored to the facts and issues of the case at hand, the draft model set provides a useful review of patent law concepts expressed in a way that is designed to be understood by lay jurors. You can access the proposed instructions here.

Linux Defenders Battles Crappy Patents

I like the thought behind the new Linux Defenders service, which was launched this week by the Open Invention Network, Software Freedom Law Center, and Linux Foundation. It combines on one site the Peer-to-Patent and Post-Issue Peer-to-Patent projects, and will add to the mix a listing of "Defensive Publications," which presumably will describe individual inventions with some rigor and in a manner that permits patent examiners and others to rely on both the descriptions and dates of the inventions. The resulting database will be available to the public.

If this gathers some steam, it could become a valuable resource for patent professionals. Though titled "Linux Defenders," it doesn't appear to be limited to Linux-based inventions, or even open source ideas. And while it is not paying bounties, like Article One Partners, it is tapping in to the open-source ethos that may prove to be a stronger motivator for contributors than will the uncertain prospect of a future monetary reward.

The examples of Defensive Publications on the website could use some improvement. While they appear to describe how the inventions work, they lack date references, as well as links that would allow a searcher to dig deeper for original source material.

A spin-off service, called "Linux Defenders 911," offers help "[i]f your company is being victimized by any entity seeking to assert its patent portfolio against Linux." If so, you're asked to "please contact us so that we can aid you in your battle with these dark forces."

Drew "MySpace" Ruling Makes Bad Law

The Lori Drew "MySpace" suicide case is a perfect example of a hard case making bad law. There are no winners in this sad, sad situation. That said, the tragedy that befell the young suicide Megan Meier, which some believe to have been caused at least indirectly by Drew & company's machinations, and our desire to extract retribution, does not justify interpreting federal law in a way that would make criminals of the millions of people who have entered false information as part of a website registration.

It would not surprise me to see this verdict overturned, if not by the trial judge, then by the 9th Circuit on appeal.

For an excellent discussion of this case, the court's ruling, and its implications, see this Groklaw entry and the Electronic Frontier Foundation amicus brief cited therein.