What do India's New Cultural Economy, eBay And Porn have in Common? Avnish Bajaj

Avnish Bajaj, the CEO of Baazee.com -- India's premier shopping portal, a subsidiary of eBay Inc. -- was arrested last Friday in connection with the sale of images showing teenage classmates at a New Delhi high school engaged in sex acts on Baazee.

If India is content to reap the rewards of an i-economy it must be prepared for the cultural imports that piggyback every dollar of export revenue. As the Computer Science, Call Center, and Internet Technology boom fuels an appetite for Western Goods, it naturally will fuel the desire for Western modes of getting these goods. Yet, few outside the Indian business world know just how many years it took to get major imports, such as Pepsi and Coca-Cola, into India. It is a very insular, protectionist economic culture and the pop culture, Bollywood frolicking notwithstanding, is equally stuffy.

So it comes as no surprise that the CEO of Baazee.com was arrested even after the company took reasonable (by American Standards) steps to remove the item. Or does it? The seller, an engineering student, was already arrested a week prior to Bajaj. Meanwhile, police are still trying to locate the boy who caught act on his cell phone camera. eBay made a point to state that "The video clip itself was not shown on the site; the seller offered to e-mail the clip to the buyer directly."

By arresting Bajaj, the authorities have essentially stated that the entire premise of eBay in India, a real time, 24/7, unending, unbridled, open access, bizarre, is too daring a concept for the government to tolerate. Or perhaps it was a clumsy attempt to appease the class resentment in a subcontinent where the “have nots” outnumber the “haves” in population and lack of wealth by 1000 to 1. Either way, these are entirely disproportional and unwelcome signals to be sending to Indians and foreign investors. This is especially so considering the fact that eBay spent US$50 million in June to acquire Baazee.com.

Moreover, it sent a troublesome palpitation through the high tech heart of the Indian economy’s explosive development. Such knee jerk reactions cannot be read as signs of things to come, and I am willing to bet that the authorities will immediately characterize this as a fluke of poor judgment and communication. Culture and commerce are wedded today in an unprecedented marriage--to eat is to shop, to shop is to breathe, to breathe is to create, all at the same time--and so India too will struggle with this paradox and adapt.

Kaiser Wahab

Microsoft Gets Bullied in Europe

On December 22^nd, 2004, the European Court of First Instance ruled that Microsoft Corporation must comply with antitrust sanctions imposed upon it by the European Commission in March 2004. According to the order, the software behemoth must now offer to computer markers a version of Windows without its Media Player software. It must also share trade secrets related to its inter-operability with other software companies and pay a fine of $665.4 million. Microsoft issued a statement the same day, stating that it is “encouraged by a number of aspects of the Court’s discussion of the merits of the case.” See Microsoft's statement.

With all of Microsoft's security troubles and its lost market share to Firefox, which is effectively challenging the advantages of a pre-bundled Internet Explorer, this is another blow in that the Court has judicially done the same for Media Player in the EU. No doubt there will be hungry competition rushing to fill the void.

Olivera Medenica

Suprnova.org Implodes Under Threatened Weight of Litigation

The immensely popular Suprnova.org, which served up tracking links for “bittorrents” of every size, shape and description, ranging from movies, to esoteric PDF's on evolution and Christianity has voluntarily ceased service. A note posted on Suprnova.org said the site was "closing down for good." The daily rotated collection of links was also taken down. "We are very sorry for this, but there was no other way, we have tried everything," the statement said.

This is another huge victory for the MPAA, RIAA, and others who have aggressively pursued the mounting threat of bittorrents to their intellectual property rights. Suprnova.org as a flagship bittorrent site, follows in the wake of N4p.com, Torrentbits.org and Phoenix-torrents.com also shutting down due to similar pressure.

At this stage, it appears that with high profile easy access sites such as Suprnova off the table, the MPAA and RIAA have succeeded in at least temporarily downgrading the mass appeal of bittorents. The reality is that there are high traffic, high volume sources operating in full glory for illegally copied material, such as UseNet. However, these are simply too user unfriendly for the mass appeal that is dangerous to the media and entertainment industries.

The strategy pursued by the industry players is to legally target the pillars of user friendly file sharing technologies, such as bittorrent sites. As these sites make that technology relatively accessible (for legal and illegal sharing), their absence will drive the technology more underground among the “in the know” file swappers and give rise to more run and gun overseas torrent link sites that can fold up operations with greater anonymity.

Kaiser Wahab

Speed bumps on the High Occupancy Spam Lane of the Info Super Highway: Maryland Anti-spam Law struck down by Court as Unconstitutional

A Maryland Judge has struck down the nation's first anti-spam law. Last week's ruling, dismissing a lawsuit against a New York e-mail marketer, essentially overturns Maryland's 2002 Commercial Electronic Mail Act.

The Maryland statute, unlike the Federal Can-Spam Act, allows individual state residents to sue alleged spammers operating within and outside of Maryland for e-mail continuing certain false information. Ironically however, the statute says little about the location of the offended resident. Hence, an enterprising George Washington University law student, Eric Menhart, filed the subject case through a corporation in Maryland he set up to fight spam, while living in Washington.

The judge concluded that the law unconstitutionally attempts to regulate interstate commerce by targeting e-mail traffic that may never actually enter Maryland. However, Appeals courts have upheld laws in California and Washington that were declared unconstitutional a similar basis to the Maryland ruling.

Kaiser Wahab

Hey Santa – I Want Some Keyword Advertising For Christmas!

Christmas came little early for Google, Inc. this year. On December 15, 2004, a federal judge from the Eastern District of Virginia ruled that Google’s advertising policy of selling ads linked to searches for commercial trademarks does not violate federal trademark laws.

Google’s current AdWords program allows rival ads under a “sponsored links” heading to appear each time a user searches for a particular company such as “Geico.” In other words, Google’s program offers marketers the – quite lucrative - opportunity to link their advertisements to a user’s search for a competing company.

Geico, Inc. filed a complaint against the search engine in May alleging that the latter’s advertising policy caused substantial harm to Geico by confusing its potential customer base and illegally exploiting the hundreds of millions of dollars invested in the insurance giant’s brand.

According to Judge Brinkema, “there is no evidence that that activity alone causes confusion.” Google’s general counsel further ads that this ruling “confirms that our policy complies with the law, particularly the use of trademarks as keywords . . . This is a clear signal to other litigants that our keyword policy is lawful.”

Oilvera Medenica

Attorney to Ashcroft: Should Software be Copyrighted at All? No.

Greg Aharonian, consultant and patent activist has challenged the basis of registering software code for copyright protection in a pro se complaint for declaratory judgment filed in San Francisco District Court. He argues that the copyright laws of the United States were devised for creative works such as music literature, and screenplays and not for “utilitarian” items such as software code. Moreover, he argues that patent law adequately protects software code and should be the proper vehicle for such protection.

Expressly barring copyright registration for software code would have tremendous ramifications for the raging software piracy war. Namely the hurdles, costs, and complexity of filing a patent application are tremendous compared with the relatively quick and dirty copyright registration. In addition, while protection for copyright can last as long as 95 years compared with a mere 20 for patent. Currently, software manufacturers, including Microsoft employ a multi prong assault of copyright, patent and well "clickwrap" agreements to protect their software turf.

While, Aharonian argues that the current standards and enforcement mechanisms of software copyright infringement are a complete disaster, there are many voices in favor of maintaining the status quo established in the 60’s. Aharonian argues that software copyright runs afoul of due process in that it does not provide appropriate use boundaries, causing grief and confusion among industry players and courts.

I suspect that the court will sidestep the issue entirely on “standing” grounds. In other words, the court will argue that Aharonian has no basis himself to file the suit at all, because he was not ostensibly harmed by the copyright abuses he attacks. The complaint is available on Aharonian's site.

I believe this is the desired result given the fact I agree with Kent Dunlap, principal legal advisor to the Copyright Office's general counsel, who states "I think it is fair to say it is the primary means of protecting U.S.-based software." Removing this weapon from manufacturers' arsenals will prove disasterous in light of the unrelenting assault of piracy, the presence of many small and startup software companies, and the relatively burdensome patent process.

Aharonian has some very interesting positions and insights as to the use and boundaries of patent law in general:

http://www.patenting-art.com/

http://www.iplaw-quality.com/

Kaiser Wahab

Round Three of the Ultimate Copyright Bout, Can the Comeback Contender Beat the Industry in the Supremes’ Ring?

The U.S. Supreme Court on Friday granted a review of the contentious issue as to whether decentralized Internet file-trading networks should be held responsible when users illegally copy music, movies and other protected works.

Copyright enthusiasts, industry consortiums, file sharers, legislators, technologists, lobbyists, and probably even your dog are lining up for round 3 of the copyright battle of the early 21^st century. This past August, the 9^th Circuit ruled in favor of Grokster in an action filed by MGM and nearly every other major studio, songwriter, and record label. (Metro-Goldwyn-Mayer Studios v. Grokster. Ltd., 03-55894 (9th Cir. Aug. 19, 2004)) The court held that the second generation file sharing technology (decentralized file sharing which does not allow the companies operating the network to monitor or control traffic, unlike Napster which had centralized servers monitoring and regulating traffic) did not subject Grokster to vicarious liability, despite the fact a high volume of its traffic consists of illegally copied materials.

Central to the 9^th Circuit’s decision was its comparison of Grokster to the videocassette recorder as technologies with potentially legitimate and lawful uses. The case wherein the VCR survived a bid by the Universal Studios to bar Sony from marketing the then new technology is Sony Corp. v. Universal City Studios 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984), commonly referred to as the Betamax case. The Supreme Court decision in Betamax was 5-4. Not surprisingly, the Grokster plaintiffs appealed to the Supreme Court, which recently granted certiorari and is slated to review the case.

The fact that the Supreme Court took the case indicates that it may settle this issue itself ahead of Congress, which is feverishly examining several potential solutions. Much like the hotly contested issue of abortion, the Supreme Court may legislate a framework, setting guidelines, timelines, acceptable use parameters, and other qualifications that, while not overturning Betamax, will restrict its application. This will create a landscape far different from that for our venerable VCR deck that was literally left to its own device. Rather, the Supremes may “draw the line” when it comes to technologies with potentially legitimate uses that simultaneously can shatter the foundation of traditional notions of intellectual property, as some argue.

Unlike the VCR, the digital format, on demand availability, and sheer volume of files that are shared on these networks are a far cry for the VHS quality tapes that Betamax hinged on. Back then, no one made the argument that the home video copy was better or at least as good as the purchased copy or a trip to the theatre. However, digital copies of music and now movies are on par with their commercially available counterparts and can be reproduced on over the counter computer equipment with the same sophistication and sometimes volume as a commercial factory.

Although, it is entirely possible that the Supreme Court may let Betamax stand as is and simply legitimize Grokster as a new technology with legitimate uses, beyond the reach of copyright holders. Interestingly, some of Plaintiffs have made much of the fact that they are unveiling their own suite of paid file sharing networks (e.g. Sony and BMG) ala the current incarnation of Napster and i-Tunes, suggesting that these new operations should not be threatened by the Groksters of the world. But what should make sense in a case where the names on a friend-of-the-court brief supporting the entertainment industry's appeal include the Dixie Chicks, Sheryl Crow, Jimmy Buffett, and Stevie Nicks, while the average age of the Supreme Court Justices is 70.7?

One thing that is constant and beyond dispute is that an average of 7.5 million users were logged on to peer-to- peer networks in November 2004, up from 4.4 million in November 2003, according to the research firm BigChampagne. The case is MGM Studios v. Grokster, No. 04-480. Oral argument is set for March, and a decision is expected by July.

Kaiser Wahab

Can the Controlling the Assault of Non-Solicited Pornography and Marketing Act Can Spam?

How many of you spend a few minutes each morning deleting your inbox’s fresh new batch of spam emails, swearing under your breath, and threatening your email account that you will switch over to another one, and you really mean it this time? We have all received those pesky little emails clogging up our email accounts and taunting us with a variety of goods and services. Most of these emails are covered by the relatively new (circa Jan. 2004) Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) which governs “unsolicited commercial electronic mail via the Internet.” But for those of you in the business of advertising your goods/services via the Internet, how does the law affect you, and how do you protect yourself from being labeled an illegal Spammer?

CAN-SPAM has a variety of requirements that can easily be followed with a diligent dose of administrative housekeeping. Most importantly, the Act covers “commercial emails” as opposed to “transactional” or “relationship” emails. According to the Act, commercial emails include “electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” Transactional or relationship emails, however, include everything outside of such “commercial emails,” including messages that confirm an online purchase, provide updates as to a purchased products, recall products, or relay information of interest to members of an organization.

The SPAM Act outlines a variety of requirements in policing the stream of commercial emails, the most salient of which are:

(1) The commercial email must have an easy to locate opt-out link so that a recipient of the email can send an email to the sender requesting to be removed from the latter’s mailing list (the sender has a 10-day grace period to honor such request);

(2) The email must include the sender’s valid postal address;

(3) The email cannot include deceptive subject headings intended to mislead the recipient into opening the email thinking it is not a commercial email;

(4) Commercial emails containing sexually oriented materials must include warning labels stating the nature of the email.

Penalties for a violation of the Act’s requirements include a fine of $250 per email and damages are capped at a $6 million limit. In other words, make sure that you follow the Act’s requirement, maintain easy to read instructions in your emails, keep track of recipients requesting to be removed from your email list, and you will be well on your way to direct marketing success.

Olivera Medenica

Public Intellectual Property Political "A Team"--Intellectual Property Action Committee

There are those that contend that while nearly every special interest group in the world has a pouch full of politicians and expert lobbyists, Intellectual Property (“IP”) in general has yet to find such a champion. Other than special interest groups such as the RIAA and the MPAA, there are few with the power to really influence the Hill. As a result, the Intellectual Property Political Action Committee (IPAC), an organization devoted to a grassroots IP educational drive for the people and the politicians alike, is one of this year’s most significant political developments for IP.

Recent developments in IP legislation have demonstrated the huge issues and rewards at stake for media and technology players and the public. Yet, while these developments have brought IP to the dinner table discussion, Americans are still relatively ill informed about how these issues will shape their lives in a real and palpable fashion for decades to come.

IPac’s mission is to support candidates and elected officials who are committed to balancing interests in developing copyright law. The group will support those who advocate for laws that promote creativity and commerce without simultaneously limiting political expression, innovation or research and education. One of the core goals of the group is to promote technologist innovation without the stigma of potential legal action:

“We believe that technological innovation and individual creativity are vital to the future of this country. We believe that a prosperous and democratic society depends on freedom for all individuals to pursue scientific invention and artistic expression. Unfortunately, new intellectual property laws threaten to stifle these freedoms and restrict public participation in science, art, and political discourse.”

In an arena that is continually engaging the diplomatic, enforcement, and political institutions of world governments, it is not surprising that IPac has emerged. Focused not only on political action, but education, its hope is to make the public recognize what is at stake in what they believe to be a one sided approach to IP policy dictated by major commercial players.

Kaiser Wahab

"BLOG" is the "Totally Rad" of the 21st Century

Again redefining the way we communicate in person, the Internet and its marvelous bag of tricks has introduced another streamlined net speak term to the mix: "BLOG" The term, heavily touted as the Berlin Wall between new media and old media was listed as the number one term of the year by Merriam Webster, Inc. The presidential election highlighted the mainstream significance of blogs in the public opinion universe and more attention is turning to their possibilities as an enteprise tool. As massive communication innovations are born no more than three years apart in the information age, we are becoming more receptive to them. Having learned to "google" everyone's neighbors and dinner dates as a form of personal background check, we now are ready to put our ears to the street through a blog.

Merriam-Webster Inc. defines a blog as "a Web site that contains an online personal journal with reflections, comments and often hyperlinks."

Kaiser Wahab