Posted on February 26, 2010 in IP by Brian RoweComments Off

Notes for Seattle University Laws Privacy Session:

What is the reasonable expectation of Privacy online?

  • Each younger generation is being more open
  • trust is leveraged v. privacy
  • US has no comprehensive privacy law
  • There is some privacy in common law and constitutional law but no cohesion
  • In the EU humans have a RIGHT to manage their own data v. In the US there is no right
  • Most of the rest of the world has a RIGHT to DELETE

What are the privacy issues company should look for?

  • Consumer backlash – social media creates a non legal remedy
  • Privacy Policies
  • FTC Action
  • Common law claims (invasion, harassment, Note Rowe: Prosser torts)

Legal calculations must include:

  • Risk of get sued
  • Risk of losing law suit
  • Risk of bad traditional press
  • Risk of bad social media press

Most Common Privacy Policies Problems:

  • Poorly worded default setting that confuse consumers (Buzz & facebook)
  • Retroactive Application – FTC says you need special consent beyond continued use for applying new policies to previously collected data (source needed)

EPIC complaints have revolve around “unfair and deceptive” trade practices.

Favorite quote “Canada is not the 51st state…” they do protect some privacy


  • COPA age 13
  • you can not take personal y identifiable information FROM kids.  Do not confuse this with information ABOUT kids.  Information about kids from adults is ok but not info from kids.

This talk was by, Kraig L. Marini Baker of Davis Wright Tremaine.

Posted on February 26, 2010 in IP by Brian RoweComments Off

Wednesday, Microsoft sent a DMCA takedown to Network Solutions to force Cryptome’s website pulled down because an internal 22 page Microsof document cover security issues had appeared on the site . This is an incredible abuse of the DMCA by Microsoft. The DMCA is designed meant to stop people from sharing copyrighted works to protect their commercial value. The DMCA was never meant silence unpopular speech.  This type of abuse is clear censorship.

This is a clear example of why we need penalties for DMCA abuses.  When the DMCA takedown process can be abused to silence unpopular speech there needs to be a way to prevent or punish these abuses.

Update: Microsoft has withdrawn the takedown and Cryptomes website is back up.

Posted on February 23, 2010 in IP by Brian RoweComments Off

On Thursday the 25th the iSchool is hosting a video webcast with Lawrence Lessig of  Harvard Law School on the issues of fair use & copyright in online video. This will be a three part event starting with a streamed video talk by Lessig then an open Q&A online w/Lessig and closing with an in person 45 minute discussionof fair use rights complete with recent examples.

This event is free to attend, open to students and the public and being held at Mary Gates Hall room 251 from 3:00pm to 4:30pm west coast time. Here is more information from

On February 25th, 2010, our first WiresideChat kicks off with a live webcast of a talk by Lawrence Lessig. Professor Lessig will deliver a talk on fair use and politics in online video from Harvard Law School in Cambridge, MA. Come in person, or tune in to a live webcast at

In conjunction with the Cambridge event, the Open Video Alliance is hosting live webcast screenings in cities around the world. Many of these screenings will be followed by special presentations. In New York, check out a curation by the ReMixed Media Festival. In Los Angeles, take part in a Critical Commons workshop. If you’re in the San Francisco Bay Area, check out a live audiovisual demonstration by Eclectic Method at Stanford Law School. For more details, or to host your own event, visit

Lessig’s talk will explore copyright in a digital age, and the importance of a doctrine like fair use. Fair use allows limited use of copyrighted material without requiring permission from the rights holders, and is essential for commentary, criticism, news reporting, remix, research, teaching and scholarship with video. As a medium, online video will be most powerful when it is fluid, like a conversation. Like the rest of the internet, online video must be designed to encourage creative expression and political participation, not just passive consumption.

If you have questions about attending please feel free to email Brian <at> .  Read more about the event at the Open Video Alliance. I am also covering related topics in the class I am teaching at the iSchool IMT 550 Law, Ethics, Policy & Information Management.

Posted on February 19, 2010 in IP by Brian RoweComments Off

Recently Public Knowledge, & Jennifer M. Urban from the Samuelson Law Technology & Public Policy Clinic at UC-Berkeley, released the first reform ideas for copyright legislation focusing on the principle of fair use (CRA).

The idea is very simple.  Fair use is embodied in Section 107 of the copyright act. Section 107 is short provision that as added to the copyright act in 1976 codifying the common law principle of fair use in the statute directly.  As new uses and technologies have arisen the statute has not been updated to deal with, new technology, common social norms or recent common law developments.  PK is suggesting that the language be updated by adding a few words to the opening clause that would clarify certain uses as more likely to be fair use.

It is important to note that the opening clause in section 107:

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

does not list uses that are guaranteed to be fair use just “explicitly favored uses” added to clarify “for courts and diminishes uncertainty for copyright holders and follow-on users.”  To determine fair use a court still must go through a four factor balancing test, but may be more likely to favor the use.

The CRA proposes the addition of three more uses: incidental uses, non-consumptive uses, and personal, non-commercial uses.  It is worth looking at each of these more closely:

Incidental uses is a background use of a copyrighted work where to focus is where the copyrighted work is not the primary focus of the use—”for example, capturing music playing over a radio when filming a family moment.”  This would cover recent cases like Lenz where an over zealous DMCA takedown removed a family video with 30 seconds of a Prince song in the back ground.  This exception is fairly strait forward and not likely to cause a lot of controversy.

Documentary film makers struggle with this type of use all the time, if a cell phone ring in the background while interviewing someone is it really necessary to clear rights and pay hundreds or thousands of dollars for an unintentional use, no.

Non-consumptive uses are uses that “do not directly trade on the underlying creative and expressive purpose of the work being used.”  These are uses such as copying and searching a document to create an index or to count the gender ratio of pronouns used with respect to different professions.  These use are NOT about reading a creative work or consuming them but in finding out information about them to better provide information about them such as search relevance.  I would call this the data mining exception. If a search and rescue unit figures out how to cull twitter to find out where the worst damage is during an earthquake we do not want copyright preventing this use. This use is designed to be directly in line with the intent of the copyright act to “promote the Progress of Science and useful Arts” while also realizing that to get to or to use unprotected data & fact we may have to make copies along the way.

Personal, Non-commercial uses is the uses we all make in our home when we back up media copy a TV show or a streaming video.  This is a use right I grew up with when I used my dad’s Beta machine (he was an early adopter it took him years to realize VHS had won the home video standard wars) to tape square one TV to replay later.  Or when the family fast forwards through previews we did not like on a rented movie.  This exception is likely to be the most contentious in the recommended legislation.  Content companies have done everything in their power to try to control how I use copyrighted works in my own home. To watch a movie on Blue Ray it take over my home system and tries to force me to watch  things I do not want to expose my family to or waste my families time with.

Overall these suggestions are rather moderate in nature.  They take the best of recent case law and current best practices to update the statute while preserving users rights. This is a good start on the road to fixing copyright law.

PK’s press release
Arstechnica’s piece on Fixing Fair Use with Seven Little Words

Follow @CReformAct for updates

Disclaimer: I worked at PK this last summer as a Google Public Policy Fellow and attended some of the meeting related to the Copyright Reform Act.

Posted on February 8, 2010 in IP by Brian RoweComments Off

Great video on copyright policy and remix culture.

“In a world of digital network media, copyright policy isn’t just about how to incentivise the product ion of a certain type of artistic commodity. It’s about what level of control we are going to permit to be exercised over our social realities. Social realities that are now inevitably permeated by pop culture. I think it is important that we keep these two different types of public goods in mind. If we are only focused on how to maximize the supply of one, I think we risk suppressing this different and richer and even is some ways maybe even more important one.” – Julian Sanchez on remix culture

Links for more info:
Flagpole sitta Vimeo Video
Law Suit with Vimeo over Lip Dubs
Lessig @ TED
Cross posted from FFIP found at Bottom-up thx Timothy

Posted on February 4, 2010 in IP by Brian RoweComments Off

This question is not an easy one and will be explored in four parts.  In this post I will deal with one aspect of ownership the right to keep your copy of an ebook.  Kindle’s Terms of Service states that you own a perment copy of the ebooks you buy:

Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.

This sounds great, the permanent copy language makes me feel warm and fuzzy inside until I get to the next section where I find out I can not transfer, rent, lease or distribute (or maybe even read aloud but that is for another post) that copy:

Restrictions. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove any proprietary notices or labels on the Digital Content. In addition, you may not, and you will not encourage, assist or authorize any other person to, bypass, modify, defeat or circumvent security features that protect the Digital Content.

Along comes 1984, which was sold on Amazons site to users then deleted off end users machines when it was found out the publisher did not have US distribution right.  The publisher usually published public domain books and 1984 is in the public domain in Australia and other countries.  Some have claimed that it was with in Amazon’s rights to delete 1984, although most sources do not appear to have read the Kindle ToS.  The ToS does not on its face appear to give Amazon the power to do what it did, and when faced with a law suit kindle settled very quickly.  PC World has a decent piece on this:

In the settlement, Amazon promises never to repeat its actions, under a few conditions. The retailer will still wipe an e-book if a court or regulatory body orders it, if doing so is necessary to protect consumers from malicious code, if the consumer agrees for any reason to have the e-book removed, or if the consumer fails to pay (for instance, if the credit card issuer doesn’t remit payment).

So, the answer is still “no,” you don’t own the digital books you download. Though I can understand the reasoning behind some of the exceptions Amazon lays out, Amazon still maintains control over your e-books. It is not the same as having a book all to yourself once you leave the bookstore.

The “judicial or regulatory order” clause is the one that concerns me most. Theoretically, if the dispute over Orwell’s e-books came to blows in court, and Amazon was ordered to wipe out all copies that it distributed, we’d be in the same situation. The only difference is that Amazon can point its finger at the court system or the government, instead of taking the blame for enabling remote deletion in the first place.

1984 Kindle @ PC World

Although even PC World understates the difference in requiring court action. For a court to order all copies wiped from end users’ Kindles it would have to be an extraordinary circumstance. Just recently the Supreme Court emphasized that this type of injunction should not be given out automatically for IP cases.  Ebay v. Mercechange outlined the test for an injunction like this and it is heavily in favor of not granting this type of injunction unless there is no other reasonable option:

According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

The court  would have to balance the harm of removing those books and consider other options such as having Amazon pay the rights holder each lost sale. A few lost sales does not appear to be irreparable injury when lost sales can be compensated from with monetary damages. By turning to the court here Amazon avoids a knee jerk reaction like what happened and shifts responsibility to an entity legally required to consider the public interest not just the bottom line.

Amazons agreement under the settlement places the question of do you one Ebooks in the hands of the court when a dispute arises, but given the high standard in Ebay v. Merc books are safer there.  I do not like the idea of courts or the government being able to delete anything you want to read, but it scares me a little less to have the courts decide then to leave the choice to trigger happy corporations scarred of statutory copyright damages.  Although the ideal outcome would be to allow end users the ultimate say in the mater.   I would suggest a confirmation box that end users have to consent to the deletion in the case of a court order with a guarantee that Amazon will not track how users respond.

Beyond the 1984 kurfluffle there are two other rights you are missing from the Kindle ToS that are essential for ownership. The right of resale, sometimes called the first sale doctrine and the freedom to tinker with your ebooks.  Both of these topics will be covered in separate posts in the coming weeks.

Posted on February 1, 2010 in IP by Brian RoweComments Off

Yes the rumors are true for only a cnote you can get a personal voicemail message from JZ!

Free Culture X, a conference of Students for Free Culture, will be held February 13th at the George Washington University in Washington, D.C. Keynote addresses will be given by Harvard Berkman Center co-founder Jonathan Zittrain, the co-founder of the public interest group Public Knowledge, Gigi Sohn, and the director of American University’s Center for Social Media, Pat Aufderheide.

The conference is focused on developing greater openness among institutions of higher education by specifically investigating:

  • The politics of open networks,
  • Global access to knowledge, and
  • Open education.

You can register at  Attendees have the option to pay-what-you-want with prizes (such as signed copies of books by Lawrence Lessig and Henry Jenkins or custom voicemail recordings by Jonathan Zittrain) awarded for modest donations of $75 to $100.

I attended the last FC conference at Berkeley, it was a great event.

Posted on February 1, 2010 in IP by Brian RoweComments Off

There is an upcoming continuing legal education event on Social Media and the law that fits into FFIP’s mission very well. The topics include ethics, IP, TOS, privacy & Social Justice.  I strongly respect Robert Cumbow, my former TM professor, who is one of the organizers and Heidi Sacha Bond who I was on a copyright panel with back in December.  If you get a chance to go it should be a great event.

Legal implications of Social media in today’s world

Friday,  February 26, 2010
Seattle University School of Law, 901 12th Avenue, Sullivan Hall, Seattle, WA 98122

6.25 Total CLE Credits (5.50 General and .75 Ethics)

$125 SU Law Alumni — $175 General Admission — Registration Includes luncheon

Register Now for this program!

Click here for the full SU Law CLE Calendar

Program Chairperson & Moderator:
Robert C. Cumbow, Graham & Dunn PC, Professor, Seattle University School of Law

Program Co-Chairperson:
Monica King, Intellectual Property Law Students (IPLS) President

8:30 – 9:00        Registration & Coffee Service

9:00 – 9:15        OPENING REMARKS

Robert C. Cumbow, Graham & Dunn PC, Professor, Seattle University School of Law


Kelly Jo McArthur, Attorney at Law


Matthew (Matt) D. Schneller, Perkins Coie

10:45 – 11:00    Break

11:00 – 11:45    USER-GENERATED CONTENT:  Microsoft Inc. Panel Discussion

Carlos de Imus, Moderator

Jason Mills, Elke Suber, Shelley McKinley, Jim Dugan, Benjamin Glatstein

11:45 – 1:00      Optional Lunch and 30 Minute Presentation

Intellectual Property and Social Justice: A Conversation with Professor Heidi Sacha Bond

12:55 – 1:00      Reconvene for Afternoon Presentations

1:00 – 2:00        TERMS OF USE

Nicholas Mitchell, Hughes Media Law Group LLC

2:00 – 2:45        LITIGATION ASPECTS OF SOCIAL MEDIA (Criminal & Civil)

Theo Angelis, K & L Gates  and Pallavi Mehta Wahi , K&L Gates

2:45 – 3:00        Break

3:00 – 3:45        PRIVACY

Kraig L. Marini Baker, Davis Wright Tremaine LLP


Ramsey Al-Salam, Perkins Coie, Professor, Seattle University School of Law;

4:30 – 4:35        Recognition of Presenters, Course Evaluations and Adjourn

Margaret Chon, Associate Dean for Research and Centers and Donald and Lynda Horowitz Professor for the Pursuit of Justice, Seattle University School of Law