Back in November, Lawmeme reported on the district court’s decision in United States v. Jarrett, 2002 WL 31496302 (E.D. Va. Nov. 1, 2002), which suppressed evidence obtained in a search of a child pornographer’s computer by an overseas hacker. (Read the relevant facts here.) On Tuesday, the Fourth Circuit reversed the district court's holding and found this evidence admissible.

Essentially, the court held that, in this case, the Government was merely the passive recipient of the evidence obtained through private searches; its correspondence with the anonymous hacker did not rise to the level of affirmative encouragement or participation that would be required to make the hacker a government agent.

The Fourth Circuit's decision is here. Read more for excerpts from the decision.

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Senator Norm Coleman, the chairman of the Senate's permanent subcommittee on investigations, has started an inquiry into the RIAA's recent flurry of lawsuits against filesharers. So far, Coleman has "asked the Recording Industry Association of America for, among other things, copies of its subpoenas issued to Internet providers, and description of its safeguards against targeting innocent people." His primary concern seems to be that innocent people could be unjustifiably hit with a big lawsuit.

Read the story here.

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Just a quick news flash: the Full Federal Court in Australia has handed down its decision in the Sony v Stevens case.

This is the case in which Sackville J at first instance found that the mechanisms in Sony Playstations that prevented Playstations from running unauthorised copies of games were not technological protection measures, with the result that "mod chips" were not circumvention devices caught by the anti-circumvention provisions of the Copyright Act (ie the Australian DMCA).

It appears - and I have not yet read the decision - that Sackville's finding that the measures were not TPMs may have been overturned. This would make the Australian position more consistent with the UK position - and would strengthen Australia's version of the Digital Millennium Copyright Act - found in Australia mainly in section 116A of the Copyright Act.

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From the New York Times:

A blizzard of subpoenas from the recording industry seeking the identities of people suspected of illegally swapping music is provoking fear, anger and professions of remorse as the targets of the antipiracy dragnet learn that they may soon be sued for hundreds of thousands of dollars in damages.
. . . .
The ominous letters and a list of screen names culled from court filings that is circulating on the Web underscore the unusually personal nature of the industry's latest effort to stamp out online piracy, which it blames for a 25 percent drop in sales of CD's since 1999. Under copyright law, the group can be awarded damages of $750 to $150,000 for each copyrighted song that was distributed without authorization.
. . . .
[Jonathan Zittrain, a director of the Berkman Center for Internet and Society at Harvard Law School] said there was no obvious historical analogue to the scattershot subpoenaing of individuals in copyright law enforcement, which has traditionally been aimed at businesses or people who are profiting from illegally copied material. He likened it instead to raids during Prohibition, or red-light cameras that catch drivers disobeying traffic laws when they think they are unobserved. Both have given rise to social outcry, Mr. Zittrain said, even though they were used simply to enforce the law.

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There's a lot of silliness going around in technology law these days. So much, in fact, that responding individually to every logical fallacy or faulty analogy would be a recipe for an early ulcer. But every so often, something comes in over the transom that's so profoundly wrongheaded that it can't be left alone. Today, while poring through the last few months of articles in tech law journals, I came across a case comment in need of a thorough deconstruction.

Our text today is Shalisha Francis, iBRIEF: Eldred v. Ashcroft: How Artists and Creators Finally Got Their Due, 2003 Duke L. & Tech. Rev. 0014, a chipper little student note advancing the thesis that Eldred v. Ashcroft was rightly decided. Now, this is not, by itself, an absurd statement. The seven justices who decided Eldred certainly think it was rightly decided. Rather, what distinguishes this piece is its dedication to the proposition that the public domain is openly dangerous. Since the purpose of articles is to spur discussion on the issues they raise, let the discussion commence . . .

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Democratic Presidential candidate Howard Dean will be guest blogging for Larry Lessig for one week starting today. Lessig believes this is the first time a presidential candidate has been a guest blogger. He also cautioned that although he doesn't censor "abusive" comments directed to him, this is not his policy for guests. He writes, "[s]o trolls, save your abuse for my return."

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The New York Times reports that the latest Harry Potter book has been pirated, with teams of scanners and proofreaders from around the world translating the text to digital format--and sometimes translating to other languages also, well before the official translations were due.

Book piracy (the digital variety, that is) is not, as the article occasionally suggests, a brand new thing. But it is true that the technology for pirating books has taken longer to catch up than the technology for pirating music, and even movies. What is unusual about book piracy is that, even with more advanced technology, it generally takes a lot more effort to digitize a book than to digitize a CD or a movie: not only must somebody actually sit down and scan hundreds of pages, but then somebody else must comb through the resulting file and proofread to remove all the errors that even the most advanced technology can’t prevent. These efforts become even more impressive when readers not only digitize a book from another language, but also translate it. It sometimes makes you wonder why translations take so long when a group of volunteers, working for free, can churn out something in a matter of days.

Read the article here.

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Washington State's law ("House Bill 1009") imposing fines for the sale of certain violent video games to minors has been preliminarily enjoined by a federal judge. District Judge Robert Lasnik found sufficient quetions about the constitutionality of the law to block its enforcement while the case proceeds towards trial. The law would have barred the sale to children of games showing violence directed at "law enforcement officers."

Full story here (Reuters).

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From the New York Times:

Saying the development of crops that could feed millions of people is being choked off by biotechnology patents held by large corporations, several leading universities are joining to share information on their patented technologies and make them more widely available.

The initiative, which the universities are announcing today in an article in the journal Science, is meant to help apply biotechnology to the creation of improved crops, especially in developing countries
....
Besides Cornell, the initiative's participants include the University of California, the University of Florida, Michigan State, North Carolina State, Ohio State, Rutgers and the University of Wisconsin.

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The San José Mercury News has an obituary."

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The New Yorker has an article online entitled "Patent Bending" that decries the increasing trend of patenting everything under the sun--even such nebulous ideas as "business methods"--and yearns for the days when ideas were unprotected and quickly copied, but nevertheless plentiful and innovative.

Read the article here.

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Sure, public libraries are now required to have porn filters. But, as the New York Times reports, librarians aren't taking this lying down. Officials of the American Library Association are planning a meeting with filtering software companies to discuss what the librarians want from the filters. In particular, the librarians want to make sure that the filters can be easily turned off. The best line from the article comes from the ALA: "If we can't get what we want from the filtering companies, I say let's make our own."

Read the article here.

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The New York Times has a surprisingly lengthy article on how the use of spam has spurred an amazing growth industry in spurious penis enlargement pills. Some excerpts:

Carrying medically impossible promises, a few million bottles of the pills are sold annually by at least 50 companies, according to pill makers and dealers, producing revenue of more than $100 million a year for the so-called male enhancement industry. . . .

"Unfortunately, spam is a cheap game to get into," said Michael Clark, managing partner of Herbal Partners, which sells more than 300,000 bottles a year of Herbal Vigor pills, largely through affiliates. A marketer, he said, could arrange to send millions of spam messages a day through a computer in Eastern Europe for $1,500 to $3,000 a month. And a list containing 10 million e-mail addresses can cost just a few hundred dollars.

"That means you only need to take in $150 a day to break even," Mr. Clark said. "If you can send out 10 million e-mails a day from your bedroom, and you make $50 a bottle, you can make a decent profit."

. . . Mr. Richter said the biggest spammers take in $5,000 to $10,000 a day selling penis pills. . . .

With the pill messages, "guys delete it and delete it and at some point, they start to wonder."

. . . [T]he biggest reason complaints are so rare may be the desire to avoid embarrassment.

"Who is going to take a penis pill maker to court," asked Kevin Blatt, a former marketing executive at HerbalO, "and go in front of a jury of their peers to say, `I bought a bottle of pills to enlarge my penis and they didn't work?' "

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The Washington Post ran a feature yesterday discussing the fact that Web Firms are choosing profit over privacy.

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Photography company Corbis Corp. is suing Amazon.com (among others) for copyright infringement and violation of the DMCA; it is seeking damages and injunctive relief. Corbis holds the copyright for a variety of celebrity photographs and does business by licensing these images to its customers. It claims that Amazon.com violated Corbis's copyright by displaying the infringing images on its website and on its subsidiary IMDB.com. It further accuses Amazon.com of vicarious copyright infringement for allowing independent vendors to offer and sell unlicensed Corbis images through Amazon.com's Marketplace, Auctions, and zShops. Finally, Corbis claims that Amazon.com violated the DMCA by removing Corbis's watermarks from some of the images.

Amazon.com has responded by claiming that the only infringers are the third-party retailers and that Amazon.com merely links to them or offers them a forum in which to sell their infringing products. Thus, Amazon.com is claiming that it is protected from liability under the DMCA's "safe harbor" provision. Nevertheless, Amazon.com has removed the offending photographs and vendors.

Read more about this lawsuit in Infoworld, News.com, Reuters, and InternetNews.

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Surprising few, the Seventh Circuit today ruled against Aimster in In re Aimster Copyright Litigation, finding that it was probably a contributory infinger and should be enjoined out of business while the case goes to trial. Basically, court upheld Aimster's death sentence.

The opinion, though, by the redoubtable Judge Posner, is striking in that it provides almost a series of instructions to future Aimsters on how to argue their cases better. After laying out the usual Sony test for "substantial noninfringing uses," the opinion lists no fewer than five different uses Aimster could quite plausibly have shown, before noting that, alas, Aimster didn't bother to show any of them. So on the one hand, the opinion provides a cookbook for filesharing services on how to beat the Sony test. And it specifically disapproves of the Ninth's Circuit's standard in Napster that knowledge of infringement is sufficient to establish contributory infringement for service providers.

On the other, though, in the Aimster case itself, Posner comes down quite hard on Aimster's encryption-abetted lack of knowledge about how its users were using its software, finding that Aimster willfully blinded itself to the infringement going on. And then there's this sentence:

Even when there are noninfringing uses of an Internet file-sharing service, moreover, if the infringing uses are substantial then to avoid liability as a contributory infringer the provider of the service must show that it would have been disproportionately costly for him to eliminate or at least reduce substantially the infringing uses.

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The Supreme Court of California handed down its ruling in in Intel v. Hamidi today, finding for Hamidi and setting a strong limit on the grown of trespass to chattels.

Hamidi, a disgruntled ex-Intel employee and founder of FACE Intel, had been sending thousands of email messages to current Intel employees. Intel sued him, and won in lower-level courts on a theory of "trespass to chattels." That is, Hamidi, by using Intel's servers in a way Intel didn't like, had interfered with Intel's legal right to control those servers.

The California Supreme Court, though, by a vote of 4-3, would hear nothing of it. Rejecting the analogy to real property, the court said that a trespass to chattels claim on servers cannot stand where the offending communication "neither damages the recipient computer system nor impairs its functioning." The harm Intel complained of -- lost productivity and its workers seeing unwanted messages -- was not harm to the computers.

The majority was careful to distinguish the spam and spider cases, such as Ebay v. Bidders Edge, on the grounds that there, the trespassees produced eveidence of actual disruption to their computer systems.

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The New York Times has a great story about the rise of Internet usage in Iran, the increasingly futile efforts to stop it, and the ways in which people are using the Internet to undermine the ruling autocrats. Some interesting excerpts:

"The intention is to filter or stop sites with immoral content or that contradict our social values," said Hussein Shariatmadari, the publisher of the newspaper Kayhan, which often reflects the views of the supreme leader, Ayatollah Ali Khamenei. "In fact, these sites are readily available. It's like removing a ladder leaning against a building so a bird won't fly off the roof." . . .

Sites that mock the clergy--they might refer to a leading ayatollah as "His Mullah Highness"--are among the most popular here. One new site, set up outside the country by an exile political party, posts photographs contrasting the somewhat glamorous court of the late shah with the drab public face of the ruling theocracy. . . .

There has also been an explosion of Web logs. Service providers estimate that roughly 50,000 such personal diaries are published in Farsi [Ed. - 50,000!], discussing topics ranging from art and movies, to music, computers and everything else. Web specialists say that among the 10 most visited sites, at least 6 either feature nudity or offer links to other sites that do.

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Thomas Friedman's most recent column, entitled "Is Google God?", engages in quite a bit of technological breathlessness before he gets to his main point:

While we may be emotionally distancing ourselves from the world, the world is getting more integrated. That means that what people think of us, as Americans, will matter more, not less. Because people outside America will be able to build alliances more efficiently in the world we are entering and they will be able to reach out and touch us--whether with computer viruses or anthrax recipes downloaded from the Internet--more than ever. . . .

[I]nfo-tech, left to its own devices, will make it so much easier for small groups to build their own little island kingdoms. And their island kingdoms, which may not seem important or potent now, will be able to touch us more, not less.

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Register now to keep telemarketers away.

Unfortunately, the list of exceptions contains some of the most annoying telemarketers, including long-distance phone companies, airlines, banks and credit unions, political organizations, charities, telephone surveyors, or companies with which you have an existing business relationship. Also, the law only requires telemarketers to synchronize their databases with the national database every three months--meaning a long delay before you get those pesky callers off your back.

Still, this seems to help reduce the volume of calls, even if it may not do so as significantly as people may wish. Now we have to see if the law and the registry will survive the inevitable court challenge.

The New York Times has more here.

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