Monthly Archives: October 2010

Non-Profit, COICA, and Activism

So if you know anything about my background, you know that I’m a big proponent of Non-Profit efforts to assist artists with legal endeavors. When I had the resources, I volunteered with the Volunteer Lawyers for the Arts in Boston, MA (http://www.vlama.org ) – and have been inspired to eventually try an open a Western Mass branch of the project. (You know, when I have the experience and capital to do so.)

So it should come as no big surprise that one of the largest resources that helps me keep my ear to the ground with Intellectual Property concerns is a stellar non-profit that makes it their business to know what is happening to IP on a national scale: the Electronic Frontier Foundation  Their work is important to me for a number of reasons, but the kicker is rooted in one of my fundamental beliefs about IP in the United States:

Current laws regarding intellectual property are typically far behind the current applications or innovations. However, in order to protect a flagging business model, large organizations attempt to try and apply out-dated laws against new technical or social innovations that have the ability to reinvent the marketplace. Not only that, but instead of supporting new innovations, the same organizations have the money and lobbyists required to make both the technology or the new applications illegal under the old laws.

This is why reform is critical to any pursuit of Intellectual Property, especially the kind of reform that takes into account cutting-edge applications or projected applications, and encouraging their growth. (The history and effect of the E-Sign act is an incredible step for progress in this area.) But this is also why keeping your ear to the ground about what the large organizations are doing with private companies that support the infrastructure of technology (ISPs, etc.) or what they are attempting to pass through congress is incredibly important.

So with all of that said – let me introduce to you one of my most trusted sources of information on this front. Here’s a link to their “About” section, because they say it so well: About EFF

Basically, they are as close to my dream job as one could get outside of helping individual artists – fighting to keep innovation alive and personal freedom’s secure. Which is why whenever I receive an email alert from them, I pay attention. Here’s a briefing of the alert regarding a bill which (fortunately) was just shelved in the senate – “The Combating Online Infringement and Counterfeits Act” or COICA. There’s a ton of information on the bill right now, so bare with me as I catch you up. The best summary I’ve been able to find is through the Memo that EFF posted on their COICA site:

EFF’s page on the subjecthttp://www.eff.org/coica

The “Combating Online Infringements and Counterfeits Act” (COICA) is an Internet censorship bill which is rapidly making its way through the Senate. Although it is ostensibly focused on copyright infringement, an enormous amount of noninfringing content, including political and other speech, could disappear off the Web if it passes.

The main mechanism of the bill is to interfere with the Internet’s domain name system (DNS), which translates names like “www.eff.org” or “www.nytimes.com” into the IP addresses that computers use to communicate. The bill creates a blacklist of censored domains; the Attorney General can ask a court to place any website on the blacklist if infringement is “central” to the purpose of the site.

If this bill passes, the list of targets could conceivably include hosting websites such as Dropbox, MediaFire and Rapidshare; MP3 blogs and mashup/remix music sites like SoundCloud, MashupTown and Hype Machine ; and sites that discuss and make the controversial political and intellectual case for piracy, like pirate-party.us, p2pnet, InfoAnarchy, Slyck and ZeroPaid . Indeed, had this bill been passed five or ten years ago, YouTube might not exist today. In other words, the collateral damage from this legislation would be enormous. (Why would all these sites be targets?)

There are already laws and procedures in place for taking down sites that violate the law. This act would allow the Attorney General to censor sites even when no court has found they have infringed copyright or any other law.

Memo via EFF from the Center for Democracy and Technology: Link

Copyright infringement is a serious problem, and CDT harbors no sympathy for websites whose primary purpose is to enable widespread violation of copyright and other intellectual property rights. But methods embraced by S. 3804, the “Combating Online Infringement and Counterfeits Act,” would mark a sea change in U.S. policy towards the Internet. In particular, U.S. government action to seize domain names and to direct Internet Service Providers (ISPs) to block government-blacklisted sites would set dangerous precedents with serious consequences for free expression, global Internet freedom, and the Internetʼs open and global architecture. If enacted, the bill would be a significant step towards the balkanization of the Internet. These consequences are much too significant to address in a rushed fashion in the waning hours of the 111th Congress.

S. 3804 raises major problems in the following areas:

1. Free Speech (Due Process and Prohibitions against Prior Restraint)
2. Global Internet Freedom / International Human Rights
3. Internet Architecture / Role of ISPs
4. Internet Governance / Domain Name System
5. Ineffectiveness and Security Risks from Evasion

And FYI – Another internet resource following this development is Techdirt , which is a highly respected blog that follows, in addition to a number of IP related interests, bills in the senate related to this and other COICA issues.

“Alright, Nicole,” you’re saying to yourself right now. “So what’s going on right now that we need to be aware of?”

Fine, fine. I’ll get to the point. The bill was intended to get passed under-the-radar and without review from congress people or with open discussion. It was postponed because of “An Open Letter From Internet Engineers to the Senate Judiciary Committee”  and because of the actions of individuals who actually wrote to their senators, letting them know what was happening, something you can do through the EFF Action Center .

What’s of concern right now is that the same companies are attempting to get the ISPs that would be impacted to voluntarily create this blacklist, the implications of which would be even harder to combat as an affront to both Net Neutrality, censorship, or constitutional protections. It really makes my skin crawl.

I’ll be looking more into what the word is for the voluntarily black list, but readers-be warned, this bill is set to be reintroduced and fast-tracked after the mid-term elections.

Here’s to keeping ahead of their game.

 

(c) Nicole L. M. Jurkowski 2010

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Privacy in Social Networking

So I ran across this article a week ago, and I’ve been stewing on what it means, both as an attorney and as a facebook user…. and it leaves me asking the question:

What do you think your rights are when it comes to “private” facebook posts? “Private” meaning that you have them selected as “friends only”.

So here’s the story…

Judge Grants Discovery of Postings on Social MediaLink

Plaintiff must give defendant access to private postings from Facebook and MySpace that could contradict personal injury action claims

Acting Justice Jeffrey Arlen Spinner (See Profile) of New York’s Suffolk County Supreme Court held that precluding defendant Steelcase Inc. from accessing Kathleen Romano’s private postings on Facebook and MySpace “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

The judge continued, “In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

In 2003, Romano fell off an allegedly defective desk chair while working at Stony Brook University. Claiming she sustained “serious permanent personal injuries” and had to undergo multiple surgeries, she sued Steelcase Inc., the manufacturer of the chair, and the chair’s alleged distributor, Educational & Institutional Cooperative Services Inc.

Among other things, she maintained that she had herniated discs, restricted motion in her neck and back, and “pain and progressive deterioration with consequential loss of enjoyment of life.”

However, Steelcase said in court papers that Romano’s claims were belied by public portions of her Facebook and MySpace profiles, which “reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.”

For example, Steelcase said Romano’s public profile on Facebook depicted her “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”

Steelcase subsequently served Romano with a notice for discovery requesting “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”

After she refused to provide this information, Steelcase moved by order to show cause to obtain access to Romano’s accounts.

(There’s more to the article, so feel free to follow the link to read it all.)

And here’s what I’ve been thinking:

The plaintiff in this case is attempting to keep secret from the defense some amount of information that they posted on Facebook. The argument is that the postings were made with an expectation of privacy; the settings of the plaintiff’s Facebook only allow a restricted number of people to view the information. (Later in the article, she is also arguing trying to protect her information because getting access to *all* of the information would necessarily include irrelevant information, and having such information revealed would be “harassing and intimidating”. Both good points – but no one likes having their information rummaged through to find the truth you’re attempting to hide, or to find evidence against the case your trying to build, so that’s another story entirely.)

However, because the information is relevant to the case, and because the New York laws on discovery of information are “liberal” – the defense has argued that they have a right to see the information. What this means is that they will have evidence from the plaintiff’s own “mouth” regarding some aspect of the case.

So with that in mind, let’s take a moment to understand privacy for the courts. Privacy, in it’s most sacred sense for the court, is that between two groups: 1) married couples (in order to maintain the stability of a marriage, which is good for society) and 2) professionals and their clients. In this case, between lawyers and their clients when speaking about the case. The idea is that in order of the lawyer to do their job properly, they must be able to maintain the utmost confidence that words spoken by their client are heard by no one other than the attorney (and relevant aides). One of the first things to destroy this confidentiality is to have “someone else” in the room. That someone else could be a spouse, a parent, or a friend and witness to the events. (My favorite example is that when a parent is bringing a suit on behalf of their child, the child and the attorney must talk in private, and the parent cannot be in the room – or the confidentiality is broken).

That being said, when you look at what the Plaintiff wants to protect – statements related to the case that he made under “self-regulated privacy” on a social media network – the shield of privacy is rather flimsy. Not only are you broadcasting information to your friends, but the legal expectation of the privacy of that information is zero to none. If you wouldn’t post pictures of yourself drinking because you know that potential employers will search the site, why would you post arguably damning information about a law suit you’re current involved in?

At this point, if you haven’t realized that anything you post on the internet, “private” or not, isn’t open to public consumption – then you have other problems.

But this one is certain: The warning from the courts (like the one in this article) is clear. Lawyers, especially young attorneys like myself, are savvy to the internet – and if you post information related to something “private”, then it’s only reasonable that we search for that information in fulfillment of our client advocacy. Now, while it remains unethical to be-friend you under false pretenses in order to gain the information* Link , it is certainly possible to get the information through discovery under a common-sense argument: If it was really that private, then they wouldn’t have posted it on Facebook.

Pax,
Just Saying, Esq.

And just as an afterthought, since I was trying to focus on an expectation of privacy, Facebook was also claiming that they couldn’t provide the information, because:

Producing Romano’s profile without her consent violates the federal Stored Communications Act, which bars Facebook from “producing a non-consenting subscriber’s communications even when those communications are sought pursuant to a court order or subpoena,” Facebook argued in court papers.

This I would be interested in, because gaining access to information stored online is a serious issue to pay attention to. We all have an expectation that in order to violate our privacy, anyone coming after it will have to go through getting a subpoena/etc. to access it. In fact, the opposite is becoming more true as some copyright-infringement bullies are making deals with or convincing ISPs that such information is best turned over voluntarily.

This is one of the goals of the proponents of a bill being shelved, momentarily, in our governmental process. It’s called “The Combating Online Infringement and Counterfeits Act (COICA)”. While being shelved, they are asking those who would be effected to voluntarily block websites “known” for “copyright infringement” – and completely bypassing due process and blindsiding net-neutrality.

For more information, check out the link: https://www.eff.org/coica . I should be posting more about this bill, and it’s potential effects, soon.

 

(c) Nicole L. M. Jurkowski 2010

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Banned Technology

I saw an article very close to my heart on Tech-Dirt, and I had to share.

A Look At The Technologies & Industries Senators Leahy & Hatch Would Have Banned In The Past

http://www.techdirt.com/articles/20100925/12401911168/a-look-at-the-technologies-industries-senators-leahy-hatch-would-have-banned-in-the-past.shtml

Pax,
Ancient History, Esq.

 

(c) Nicole L. M. Jurkowski 2010

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[Latin] Prima Finally

PRIMA FACIE

Academic Latin Pronunciation: Pree-mah fa-key-eh

Legal Latin Pronunciation: Pry-mah fey-sha

(And yes, I took a linguistics class, but it’s much easier to get my point across with more literal “sounding” letters.)

The New College Latin and English Dictionary says….

  • prima, -orum: npl first part, beginning; first principles or elements
  • faci-es, -ei: f face; look, facial expression; appearance; make, form, shape, outline; nature, character; pretense, pretext;

 

Ergo…

 

Prima facie can mean a number of things, but at the heart of it, it’s pretty simple. Even wikipedia denotes prima facie as meaning “at first sight”. That’s arguably how the term was used, but more as a colloquialism than a literal translation. Literally, you could use the term when speaking about the first half of a double take, but that’s not what we’re going for.

 

So at the heart of the language, there are two very distinct concepts being combined to make the legal term of art. Legal, as opposed to the “we want to use latin and sound smart” use. (You know, ’cause Omnis sanus melior in latina.)

 

In the case of legal latin – “Prima” refers to the primary or first elements presented in a case. “Facies” is better understood as “outline” “nature” or “character” of the case itself. So the term of art, therefore, is used to denote the first elements which outline the nature of the case. And if that is all that you need for an explanation of the case itself, then the case is made. Having “prima facie” evidence (adjective form) means that you have all of the elements needed to present a case.

 

In sum: A copyright registration is prima facie evidence for a dispute over ownership of a copyright – the fact that you have a registration means that you provided all evidence to the appropriate authority to claim the piece as yours, so you are presumed to have all evidence necessary to win your dispute. Therefore, rebutting this kind of evidence is very hard to do, and requires much more work and can be more expensive. (Read: If someone else steals and improperly registers your material, there’s going to be a law suit involved to get it corrected. And they’re going to have better evidence than you. So register early and often, folks!)

 

Dicta: This phrase “prima facie” is, of course, distinguished from the concept of “Res Ipsa Loquitor” which relates to a similar concept for the evidence of negligence, but that’s a whole other post.)

 

Now was that so hard, class?

Any questions?

Okay, homework is reading chapters 1-3 of Cicero’s De Legibus  for next time.

 

Pax,

Vestra Magistra, Esq.

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