Calif. High Court Cold to Liability in Online Speech
Mike McKee The Recorder 09-06-2006
Oakland, Calif., attorney Christopher Grell's belief that certain Internet speech shouldn't be immune from liability was bombing Tuesday during oral arguments in the state Supreme Court.
But the coup de grace came when Justice Ming Chin followed up Grell's presentation by immediately telling one of the opposing lawyers how surprised he was by Grell's "startling lack of legal authority." [Not a good sign Bob]
That statement apparently summed all seven justices' thoughts about Grell's argument, and effectively signaled that the court doesn’t intend to make untold numbers of Internet users liable for every allegedly defamatory posting on the Web.
Chin even pointed out that Grell's opponents -- Oakland attorney Mark Goldowitz and Ann Brick, of the American Civil Liberties Union of Northern California -- had "plenty" of legal authority on their side.
Goldowitz represents Ilena Rosenthal, a women's health advocate accused of posting an allegedly defamatory opinion piece with two online newsgroups in August 2000. The editorial by co-defendant Tim Bolen attacked retired Pennsylvania psychiatrist Stephen Barrett and Canadian doctor Terry Polevoy for their stance against alternative medicines.
The article accused the two men of using false information and intimidating tactics, and said Barrett had stalked a woman who hosted a Canadian television show about untraditional therapies.
Alameda County Superior Court Judge James Richman threw the two men's libel suit out in 2001, but San Francisco's 1st District Court of Appeal reinstated Polevoy's claims in 2004. The appeal court held that §230 of the federal Communications Decency Act didn't immunize Rosenthal.
An e-mail from Barrett threatening to sue Rosenthal, the 1st District ruled, put her on notice that she could be held liable for republishing Bolen's letter.
Dozens of amici curiae -- most of them online companies such as Amazon.com and Earthlink Inc. -- joined Rosenthal in arguing that the appeal court's ruling could chill free speech.
"If, simply by receiving 'notice,' service providers were potentially liable for the unimaginable volume of third-party content that constantly flows through their services," the companies' lawyer, Samir Jain, wrote, "they would have little choice but to automatically and immediately take down and block third-party content in response to virtually all complaints."
Jain, a partner in Washington, D.C.'s Wilmer Cutler Pickering Hale & Dorr, argued that notice-based liability would "unleash a 'heckler's veto' that would suppress swaths of entirely legitimate content."
On Tuesday, the California Supreme Court seemed to agree and also stressed the fact that the 1st District ruling differed from all others around the country.
The justices noted that most courts -- even two other appellate courts in California -- had agreed with Zeran v. America Online Inc., 129 F.3d 327. That 1997 seminal ruling by the Virginia-based 4th U.S. Circuit Court of Appeals said Internet users -- unlike publishers -- aren't liable for posting online content.
"The court of appeal ruling here," Justice Joyce Kennard said, "seems to stand completely on its own. Zeran has been followed widely."
A few justices also seemed concerned that a California Supreme Court ruling contrary to Zeran and its progeny could result in forum-shopping, with Internet users trying to remove suits to the federal courts.
No one, Justice Carol Corrigan said, would want to be found liable in California. "I think there is that danger, yes," Goldowitz replied.
Corrigan also stepped in when Grell tried to argue that the Internet should be held to the same liability standards that apply to newspapers and magazines. "Isn't the whole point here that the Internet is different?" Corrigan asked.
Grell was asked several times to point to legal authority that would support his case, but more often responded by arguing public policy reasons that immunity shouldn't apply to postings by third-party users.
Congress had intended to contain allegedly defamatory actions, he said. "To grant absolute immunity would basically allow Pandora's box to remain open,” he added. Soon thereafter, Chin slammed Grell with his comment about a "startling lack of legal authority."
A ruling in Barrett v. Rosenthal, S122953, is due within 90 days.
Attention RIAA! MPAA! And the rest of you old tech holdouts!
http://www.internetnews.com/bus-news/article.php/3630361
FTC Closes Door on Web Listings Case
By Roy Mark September 6, 2006
The Federal Trade Commission (FTC) approved a final consent order today forcing the Austin Board of Realtors (ABOR) to change a rule barring discount brokers from listing properties on ABOR's public Web sites.
The order prohibits ABOR from adopting or enforcing any rules that treat one type of listing more advantageously than another listing type.
The order also prohibits ABOR from interfering with the ability of any of its members to enter into any type of lawful agreement with home sellers.
In July, the FTC ruled the ABOR policy violated antitrust laws by preventing consumers with potentially lower-cost real estate listing agreements access to the group's public Internet listings.
"ABOR's Web site rules create significant roadblocks for real estate brokers to offer consumers alternatives to full-service brokerage agreements," Jeffrey Schmidt, director of the FTC's Bureau of Competition said at the time.
The commission is not saying that one form of brokerage agreement is better than another. We are saying that the consumer should be able to decide." [What a concept! Bob]
The case began early last year when ABOR said it would not post home listings from discount brokers on sites operated by the National Association of Realtors (NAR) or the public site of ABOR.
The ABOR rule allowed only full commission listings on the NAR sites and the ABOR public site.
After the ruling, the FTC said some home sellers switched from a discount broker to a full commission broker, also noting discount brokerage listings on ABOR's public sites fell from 18 percent to 2.5 percent.
The decline in discount listings, the FTC maintained, had an adverse effect on consumers by limiting home sellers' choices of brokerage services.
In addition, the FTC alleged the ABOR rule denied homebuyers the opportunity to use the Internet to see all the listings available in the Austin metropolitan area. [I would have created a “Lower Commission” website Bob]
Last year, the Department of Justice sued the NAR, charging it with engaging in anti-competitive behavior against online home brokers.
Concerned online sites competing with traditional Multiple Listings Services might lead to lower commissions for real estate brokers, NAR three years ago passed rules allowing traditional brick-and-mortar brokers to selectively block their home listings to competing brokers using Virtual Office Websites (VOWs).
The DoJ objected to the policy, contending it denies consumers the full benefits of competition, discourages commission discounting and threatens to lock in outmoded business models.
The NAR changed its policy, barring brokers from selectively blocking their listings. Instead, brokers are allowed to block listings, but they must either block all Internet listings or none at all.
Yet another legal ruling...
http://www.washingtonpost.com/wp-dyn/content/article/2006/09/05/AR2006090501166.html
Anti-Spam Conviction Is Upheld
N.C. Man Flooded AOL Customers With Unsolicited E-Mail
By Candace Rondeaux Washington Post Staff Writer Wednesday, September 6, 2006; B03
The Court of Appeals of Virginia upheld yesterday what is believed to be the first conviction in the nation under a state anti-spamming law that makes it a felony to send unsolicited mass e-mails.
... Jaynes's attorneys argued in their appeal that the Loudoun court had no jurisdiction over the case because the e-mails were sent from Jaynes's home in North Carolina. The appeal also contended that the anti-spam law restrains the constitutional right of free speech protected under the First Amendment.
But the three-judge panel disagreed, ruling in an opinion written by Judge James W. Haley Jr. that circuit courts have exclusive jurisdiction over felonies committed in their areas. The anti-spam law, Haley said, "prohibits trespassing on private computer networks through intentional misrepresentation, an activity that merits no First Amendment protection."
The difference between “serving our customers” and “Impacting the bottom line”
http://www.wired.com/news/columns/0,71738-0.html?tw=rss.index
Quickest Patch Ever
By Bruce Schneier 02:00 AM Sep, 07, 2006
If you really want to see Microsoft scramble to patch a hole in its software, don't look to vulnerabilities that impact countless Internet Explorer users or give intruders control of thousands of Windows machines. Just crack Redmond's DRM.
Security patches used to be rare. Software vendors were happy to pretend that vulnerabilities in their products were illusory -- and then quietly fix the problem in the next software release.
That changed with the full disclosure movement. Independent security researchers started going public with the holes they found, making vulnerabilities impossible for vendors to ignore. Then worms became more common; patching -- and patching quickly -- became the norm.
But even now, no software vendor likes to issue patches. Every patch is a public admission that the company made a mistake. Moreover, the process diverts engineering resources from new development. Patches annoy users by making them update their software, and piss them off even more if the update doesn't work properly.
For the vendor, there's an economic balancing act: how much more will your users be annoyed by unpatched software than they will be by the patch, and is that reduction in annoyance worth the cost of patching?
Since 2003, Microsoft's strategy to balance these costs and benefits has been to batch patches: instead of issuing them one at a time, it's been issuing them all together on the second Tuesday of each month. This decreases Microsoft's development costs and increases the reliability of its patches.
The user pays for this strategy by remaining open to known vulnerabilities for up to a month. On the other hand, users benefit from a predictable schedule: Microsoft can test all the patches that are going out at the same time, which means that patches are more reliable and users are able to install them faster with more confidence.
In the absence of regulation, software liability, or some other mechanism to make unpatched software costly for the vendor, "Patch Tuesday" is the best users are likely to get.
Why? Because it makes near-term financial sense to Microsoft. The company is not a public charity, and if the internet suffers, or if computers are compromised en masse, the economic impact on Microsoft is still minimal.
Microsoft is in the business of making money, and keeping users secure by patching its software is only incidental to that goal.
There's no better example of this of this principle in action than Microsoft's behavior around the vulnerability in its digital rights management software PlaysForSure.
Last week, a hacker developed an application called FairUse4WM that strips the copy protection from Windows Media DRM 10 and 11 files.
Now, this isn't a "vulnerability" in the normal sense of the word: digital rights management is not a feature that users want. Being able to remove copy protection is a good thing for some users, and completely irrelevant for everyone else. No user is ever going to say: "Oh no. I can now play the music I bought for my PC on my Mac. I must install a patch so I can't do that anymore."
But to Microsoft, this vulnerability is a big deal. It affects the company's relationship with major record labels. It affects the company's product offerings. It affects the company's bottom line. Fixing this "vulnerability" is in the company's best interest; never mind the customer.
So Microsoft wasted no time; it issued a patch three days after learning about the hack. There's no month-long wait for copyright holders who rely on Microsoft's DRM.
This clearly demonstrates that economics is a much more powerful motivator than security.
It should surprise no one that the system didn't stay patched for long. FairUse4WM 1.2 gets around Microsoft's patch, and also circumvents the copy protection in Windows Media DRM 9 and 11beta2 files.
That was Saturday. Any guess on how long it will take Microsoft to patch Media Player once again? And then how long before the FairUse4WM people update their own software?
Certainly much less time than it will take Microsoft and the recording industry to realize they're playing a losing game, and that trying to make digital files uncopyable is like trying to make water not wet.
If Microsoft abandoned this Sisyphean effort and put the same development effort into building a fast and reliable patching system, the entire internet would benefit. But simple economics says it probably never will.
Just think of it as a way to explain Open Source software...
http://www.wired.com/wired/archive/14.09/posts.html?pg=6
Free, as in Beer
Ever since the birth of the free software movement, its defenders have struggled to explain just what "free software" is. If it is free, how do coders eat? And how do businesses that support the software – IBM, Hewlett-Packard – make any money from it?
The standard answer has been a slogan: "Think free," the movement's founder, Richard Stallman puts it, "as in free speech, not free beer." You can charge whatever you want for free software. But what you can't do is lock up the knowledge that makes it run. Others must be allowed to learn from and tinker with it. No one is permitted a monopoly on the teaching that stands behind it.
A bunch of Danes, however, apparently didn't get the memo. In June, a Copenhagen artists' collective called Superflex released version 3.0 of a new beer called – you guessed it – Free Beer. "Free beer?" you ask. "Think free," Superflex members helpfully explained at the launch, "as in free software." Under the supervision of Birthe Skands, former chief of development at Carlsberg Beer, the brewery is now scaling up quickly to meet unexpectedly high demand. The first batch of 2,850 70-cl bottles (generous at about 24 ounces, so the natural tendency is to share) sold out practically overnight. Distribution deals are being negotiated with other breweries, especially overseas. And Superflex has now established a Free Beer Foundation to spread the profits to other like-minded projects.
What makes Free Beer free is the same thing that makes free software free: Its recipe is open and licensed freely. Anyone can make improvements. But anyone who distributes an improved version must release the changes as well. Superflex keeps a log of the updates at www.freebeer.org, and it will release a new version every six months. Skands is inviting the world to help her make better beer, and in exchange the brewery is keeping the knowledge free for everyone.
Copyright mavens will wonder if such a license could really work in the US (where recipes are not copyrightable). But that quibble has slowed neither this particular "open business" nor the movement of which it is a part. Indeed, we're seeing an explosion of open source businesses. Some are about developing software, like the Firefox browser. Others simply leverage the model of free software to forge a different kind of business, from the wildly popular Web-tagging tool del.icio.us and the blog-tracking search engine Technorati to the extraordinarily successful video site Revver, which embeds an ad bug into freely licensed user-generated videos, then pays the users as the clips spread. All of these businesses build upon the value created by their users, while keeping that value free for others to build upon as well.
When we begin to look at the range of examples – OpenBusiness.cc has a prominent collection – we might learn something from the pattern. Some have already seen enough to publish their insights. The short list of these books is led by MIT professor Eric von Hippel's Democratizing Innovation. Open source businesses, von Hippel explains, know that their customers are not idiots. [What a concept! Bob] These companies encourage customers to tinker with their products; they then learn from this tinkering how to make the products better. Yochai Benkler's The Wealth of Networks places this commercial practice in a larger and perhaps more significant social context: Although peer production is profitable for business, writes Benkler, "we are in the midst of a quite basic transformation in how we perceive the world around us and how we act, alone and in concert with others." What he calls nonmarket peer production is a critical part of this transformation. The trick is not making it happen, but making it flourish. And if my Wired boss, Chris Anderson, is right (and obviously, he must be) that we've entered the land of the long tail – where digital technology supports a massively more diverse range of products and models for production – then, as he puts it, making the consumer a producer is an excellent way to move a business up the long tail. In this model, free knowledge can drive a particular kind of free market – at least a kind that seems to flourish in a digital world.
Stallman is annoyed that Superflex calls its project "open source beer": "You should have called it 'free software beer,'" he said prior to the Free Beer launch. But he no doubt recognizes the potential of this hack. As thousands are surprised by the quality of this fantastic beer yet puzzled by its name, at least some will read the explanation prominently printed on its large and striking label. And a few of those may then think a bit more about what helps innovation flourish. It's not any magic word, like free or open. It is instead a practice that encourages the widest range of innovators. Superflex has inspired this practice with beer. And perhaps with much more as well.
How will American brewers respond?
http://money.cnn.com/2006/09/06/news/funny/bud_tv/index.htm
Anheuser-Busch to launch Bud.TV
In an effort to find young male viewers, brewer is set to debut its own Web-based television network in February.
September 6 2006: 9:37 AM EDT
NEW YORK (CNNMoney.com) -- Web surfers, this Bud.TV is for you.
Brewer Anheuser-Busch announced Wednesday that it will launch a Web-based video network, named Bud.TV, in February. The company says it will feature new humorous webisodes, sporting events, consumer-generated content, field news reports, celebrity interviews, music downloads and comedian vignettes.
Lawyers beware? Of course not. What happens when the client reaches a point where their eyes cross and their brains begin to melt? They call a lawyer!
http://www.bespacific.com/mt/archives/012370.html
September 06, 2006
Survey Says American Adults Increasingly Seek Legal Info on Web
Press Release: U.S. Adults More Likely to Turn to the Web for Legal Information, New Survey from Lawyers.com Reveals
Trust us!
http://techdirt.com/articles/20060906/090948.shtml
What's The S In TSA Stand For?
from the dropping-the-ball dept
About 1200 former employees of the Transportation Security Administration have been notified they're the latest victims of a government data leak, after a contractor sent them documents featuring other ex-employees' personal information. This isn't the first time a federal contractor has lost personal data: the VA's second data loss of the summer happened when a desktop computer was stolen from another contractor, while vendors and consultants have a healthy track record of losing private-sector data too. While awareness of the importance of internal security procedures to protect data may be on the rise, the spate of data leaks by third parties doesn't seem to be slowing down. A company can exert a decent amount of control over the security of its own systems, and dictate employee behavior, to ensure that data is properly secured, but when that data is given to third-party vendors and service providers, security is out of its hands. Perhaps because companies can pass the blame onto these third parties, they don't put the same emphasis on their security procedures as they do their own internal systems. [Nothing new, Rome learned this when they started hiring mercenaries... Bob] But the fact of the matter is that consumers don't really care who's to blame, and are likely to hold the company they deal with at fault. If more people ditch companies who leak their data, even if a third-party vendor is to blame, businesses will start taking the security of those vendors more seriously. Of course, the federal government doesn't really have to worry about people ditching it for a competitor, so perhaps some other form of motivation is in order.
Eventually, everyone will have to fly nude.
http://techdirt.com/articles/20060906/164721.shtml
Another Airline Grounds Dell, Apple Laptops
from the bet-they-just-lost-two-corporate-accounts dept
Following the lead of Australia's Qantas, Korean Air has forbidden the use of Dell and Apple laptops on its planes (via Engadget). The company says users can bring the computers aboard, as long as they put their batteries in their checked luggage. This seems doubly pointless, because if the airlines are going to overreact and forbid the use of the machines on board, why let the batteries on at all, since there are questions about the safety of batteries travelling as cargo, too? Spokesmen from Apple and Dell have a point that there are plenty of their laptops that didn't ship with the exploding battery figure, so they shouldn't be any more of a threat to an airplane than any other laptop, and to single their users out really isn't all that helpful. All this ban will do is drive some customers to other airlines, where they'll carry their machines on unmolested. However, the original article does say the FAA is reviewing the safety of lithium batteries -- so maybe it won't just be Apple and Dell owners getting the special treatment.
Virtual Law (opportunity to create a truly trans-national virtual court?)
http://techdirt.com/articles/20060907/013138.shtml
If You Duplicate A Weapon In An Online World, Is It Copyright Infringement?
from the sort-this-sucker-out dept
It seems like we've had a bunch of stories recently about how the wild west of online virtual worlds is bleeding over into the real world courts. As we've said since these issues first came to light, it's a bad idea to take these disputes into a real court. Games need to figure out ways to deal with in-game issues in the game. Otherwise it raises all sorts of problematic legal situations (for example, if defrauding, robbing, killing others is a part of the game, then why is it a legal matter?). However, as each new case comes up, different legal issues are raised. The latest one is in China, where a couple years ago there was a lawsuit over a duplicate magic sword. When the game company realized the sword was an "illegal" duplicate, it deleted it. However, the scammer had already sold the duplicate sword, so the person who paid for it felt cheated and sued the gaming company. Again, it seemed like there were reasonable solutions to this within the game, and without resorting to court.
However, questions of duplicate magic swords in China are back on the discussion board today, as someone (anonymously) has pointed us to a case (which may actually be related to that original case) where three men have been tried for selling duplicate weapons in the game. Here's where it gets tricky, though. The men are being charged with copyright infringement. They made a bunch of copies of highly valuable in-game weapons, and were able to sell them for a profit of about $250,000. Apparently, this helped destabilize the world, as there were so many of these weapons which only the top players were supposed to possess. Still, this raises a number of interesting legal issues. Those involved aren't being charged with fraud, but copyright infringement -- which actually makes a little bit more sense, since they did make copies of digital goods they were unauthorized to copy and distribute. Still, again, it seems like an issue that should be solved within the game. The game can take away the weapons, and while that represents a loss to the players who paid for them, those players broke the rules in obtaining the weapons anyway. Also, we'd assume that since the game involves weapons, it's likely that players could lose weapons in a fight anyway -- so obtaining any such virtual good came with associated risks. Of course, after getting sued the last time the company deleted duplicate magic swords, perhaps they figured deleting these weapons would represent a huge legal headache.
Managing your email
http://digg.com/software/Use_Gmail_Generate_Unlimited_E_mail_Addresses
Use Gmail Generate Unlimited E-mail Addresses
feedmonster submitted by feedmonster 14 hours 45 minutes ago (via http://21st.blogspot.com/2006/09/use-gmail-generate-unlimited-e-mail.html )
Gmail has an interesting quirk where you can add a plus sign (+) after your Gmail address, and it'll still get to your inbox. It's called plus-addressing, and it essentially gives you an unlimited number of e-mail addresses to play with. Here's how it works:
Nicely geeky, but why?
http://digg.com/programming/RSS_2_PDF_Generator
RSS 2 PDF Generator
webtech submitted by webtech 18 hours 17 minutes ago (via http://rss2pdf.com/ )
RSS 2 PDF Is an online generator that will convert your RSS feeds, Atom or OPML into PDF files fast and easy. (with or without pictures).
http://www.linuxworld.com.au/index.php/id;1413724423;fp;4;fpid;3
Open source companies to watch
Jennifer Mears, Network World 04/09/2006 09:34:02
Open source software is a given in most enterprise data centers, so it's not surprising to see the ranks of open source companies and projects swell. It's not just Linux anymore - community-developed software is offering alternatives for everything from databases to application servers to network management to disaster preparedness. How do you know which open source approach is right for you? We've pulled out a few start-ups that you might not be familiar with, but we think should be on your radar.
Here are ten open source start-ups to watch:
Very nice!
http://digg.com/tech_news/See_your_website_in_30_different_ways_screenshots
See your website in 30+ different ways (screenshots)
pdesigns submitted by pdesigns 1 day 7 hours ago (via http://browsershots.org )
See how your site looks in various versions of Firefox, Internet Explorer, Safari, Netscape, Mozilla, Firebird, Dillo, Opera, Seamonkey, K-Meleon, Konquerer and more. Counted a total of 30 setups between Linux, Mac, and Windows. Also configurable to see your site in different resolutions. Too cool =)
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