Rodman Settles with ASCAP

Celebrities never seem to respect other celebrity/artists’ rights. Former basketball rock star and walking hair coloring billboard Dennis Rodman has settled a dispute with American Society of Composers, Authors and Publishers (ASCAP) to acquire a blanket license to ASCAP’s library for his restaurant operation. The heart of the dispute was the so called small restaurant exception in the copyright act which allows for the public performance of unlicensed music in "food service or drinking establishments", less than 3,750 square feet, and "small vending establishments", 2000 square feet or less.

ASCAP, which represents about 200,000 songwriters and composers who are paid royalties, polices the use of music in a variety of venues and routinely defends its members’ rights. In this case they sued eating establishments across 15 states.

Rodman's, formerly known as Josh Slocum's, was the only eatery in California named in that lawsuit.

Kaiser Wahab

March of the Spamalante--How Anti-Spam Militias are Fighting the War

The Spam war is something that nearly every computer user worldwide is part of. However, few really understand just how much of a “war” this is. Like any other war where centralized, predictable, governmental bodies are unable to regulate basic transactions, vigilante bands often fill the void to promote “peace and justice.”

In the Spam war, non-governmental organizations, like www.Spamhaus.org, have become “spamalantes” that have taken matters into their own hands. Groups like Spamhaus, have created spammer and virus infection blacklists aimed at shutting alleged spammers down. While their goals are universal, their tactics present a real question of whether then ends justify the means. For their lists often unilaterally shut down any and all traffic in and out of a blacklisted IP, without any due process or oversight.

In Spamhaus’ own words: “Spamhaus is an international non-profit organization whose mission is to track the Internet's Spam Gangs, to provide dependable realtime anti-spam protection for Internet networks, to work with Law Enforcement Agencies to identify and pursue spammers worldwide, and to lobby governments for effective anti-spam legislation. Founded in 1998, Spamhaus is based in the UK and is run by a dedicated team of 18 volunteer investigators located around the world.”

The brief version of their process is: 1) the group zeroes in on a suspected spammer through a combination of complaints, traffic monitoring, and other means; 2) the group publishes an omnibus list with the IP addresses of the alleged spammers that is subscribed to by ISP’s and Host Providers such as www.ipowerweb.com; 3) when e-mail traffic is routed through the subscribing host and/or ISP servers, the server cross references the list and if the e-mail originated from a listed IP address it is rejected outright. Most disturbing is that this blacklist applies not only to “spammers,” but to computers allegedly broadcasting viruses, intentionally or unintentionally—potentially blacklisting the mass population of ordinary e-mail users with the same consequences!

With only 18 volunteers, Spamhaus’ operations are, naturally, almost entirely automated, thereby depriving a blacklisted party any real recourse, notice, or review. This is a very troubling proposition, considering the degree to which e-mail is relied on by any business from sole proprietors to multinationals. Consider the frustration and loss of business that can result if a sole proprietor import exporter’s e-mail is completely blacked out (Spamhaus does not notify the alleged spammer at all. Rather the blacklisted e-mail must be lucky enough to spot the error message referencing Spamhaus in its e-mail client.)

Today, e-mail is a basic utility like water, electricity, and heat. It must be treated like a basic utility to assure that it is not summarily interrupted. Verizon and ConEd would not simply be able to turn off your phone service and heat without some kind of notification with some explanation of the basis and the process to rectify the problem. The law has evolved in most developed nations to assure that process is a key element in the administration of utilities. In this early phase of the spam war, critical thought must be invested before simply allowing third party entities to take matters into their own hands. While I applaud Spamhaus’ motivation, the potential for abuse and gross miscalculation is too severe to do otherwise.

Kaiser Wahab

Trade Secret Enforcement Running WIld Over Blogs--Apple Sues Think Secret

Apple with its hipper than thou industry outsider persona has taken an oddly establishment position with regard to blogging and other grassroots net commentary on its operation. Most notably, it has garnered significant attention in its lawsuit against Harvard University student Nicholas Ciarelli's Web site, www.ThinkSecret.com, which for the past 6 years has reported on Apple’s product line ahead of Apple. Most recently, it was targeted for its “outing” of the 60 Gig IPod Photo and the Mac Mini PC ahead of their official release. Apple is taking the stance that this is a form of contributory trade secret infringement.

As trade secrets don’t spring from any statutory grant, but rather come from the common law's respect for a company’s efforts to keep them secret, Apple is understandably aggressive in posture. It should be concerned since a great deal of its market flows from its status as a trend setter. To sit and do nothing would invite greater difficulty.

However, this is not just some file and settle scenario. Apple’s lawsuit presents some significant legal issues that will no doubt set the tone for the interplay between the net, journalistic integrity, intellectual property, and first amendment rights. Industry lawsuits against “nodal” netizens (those users that are sources or high traffic conduits for pirated or alleged misappropriated information and materials) are the basis for intellectual property enforcement in the info age. As these become increasingly the vogue, the industry players (e.g. RIAA, MPAA, etc.) are trying to shrink the boundaries of first amendment and privacy rights to strengthen and add teeth to the enforcement of intellectual property rights.

So as the MPAA and the RIAA have argued that an ISP should turn over the IP addresses of users that have trafficked copyright material, a clear blow to privacy rights, Apple will attempt to have the Court characterize Ciarelli as an industrial espionage agent, not a journalist. In any case, Apple will steer the Court clear of any journalistic comparisons that would provide shelter to Ciarelli’s sources. This has serious implications for the blogging world. If Ciarelli can demonstrate that he behaved in a journalistically ethical fashion (e.g. he did not induce trade secret revelations but rather reported them when approached by sources), this should factor heavily into the Court’s analysis. Unlike trafficking pirated movies or music, the very nature of this suit is information that may have, to Apple’s chagrin, become part of the public dialogue by its own employees breaching their confidentiality agreements. To silence Ciarelli if that were the case would be an overreaching position that shifts the blame to a legitimate information organ—a gag on public discourse in order to protect mismanaged trade secrets.

Also, given the fact Ciarelli is something of a local hero in the Mac community, this suit may come back to haunt Apple if its hunt is deemed too heavyhanded. A backlash may be brewing in the company’s pot, which has been fueled trough good times and bad by devotees who always viewed it as an underdog champion against Microsoft. This suit could make Apple appear to be the new bully on the block.

Despite the highs stakes, the Electronic Frontier Foundation, ironically, is not defending Think Secret, even while defending two other sites, AppleInsider.com and PowerPage.org, against Apple subpoenas aimed at revealing sources.

Kaiser Wahab

Viewer Discretion Gives way to Blurred Cartoon Buttocks

Media regulation is following the blue state red state drama unfolding in every other policy arena. This is evident given Fox Networks recent act of self censorship. The network blurred an exposed cartoon posterior on its popular series "The Family Guy", an animated series much like the Simpsons. The bigger irony is that the episode originally aired almost five years ago unaltered. As a federal agency, the FCC is tasked with consistently and verifiably promulgating and enforcing rules. Fox's actions demonstrate a clear absence of reliable standards and benchmarks. The FCC needs to quickly address the state of fear that will no doubt create an additional and costly layer of legal prudishness by media counsel.

Kaiser Wahab

Model Ethics Codes for Bloggers

If the Blog is the newspaper of the 21st century without the "paper," then should it be without the ethics as well? Considering the hype that blogs have generated in the last year, it is time for the blog maturation cycle, as it does in all things internet driven, to begin at light speed. Bloggers as the everyman journalist, should be held to standards that govern other media channels. This is especially so given the highly touted real time power to persuade and influence they have.

Fortunately, the movement has already begun: Cyberjournalist.net, devoted to highlighting professional excellence and high standards in i-journalism has setup their own simple and effective ethics code. As an attorney, blogs are truly as frightening as they are inviting-- the absence of rules promotes a laissez faire yellow journalism atmosphere ripe for defamation and misrepresentation. As an attorney that deals with these issues, this is a very welcome conversation.

Kaiser Wahab

Jumping the NanoBandwagon

Ever dream of randomly spilling food on your clothes without every worrying about the dry cleaning bill? Want to know what it feels like to go from the office to a game of touch football without changing your clothes? Are you a neat-freak and refuse to play with your 2-year-old nephew who prefers to throw rather than ingest food? Well, fret no more, the times are changing, and you can now wear clothes that resist spills, repel and release stains and provide the coolest of comforts. Companies such as Nanotex (www.nano-tex.com) offer high-tech microfibers to designers such as Nautica and Tommy Hilfiger who in turn sell their fashion to you, the discerning consumer seeking pragmatics in the clothing market.

How does it all work? Traditional cotton and silk fabrics are dipped in a proprietary chemical solution before the fabric is cut. The solution coats and penetrates each individual thread completely without changing the way it looks or feels. The result is tiny whiskers attached to the material that allow liquids to bead up and roll off without a single trace. Bad news for dry cleaners, great news for our bank accounts (apparently Eddie Bauer offers nano-clothes for a mere $10 more than the regular price).

These technologies are the result of Molecular Nanotechnology (MNT) – a field commonly referred to as “general-purpose technology” or the next Industrial Revolution. MNT is a type of molecular engineering that allows scientists to build everything from the bottom up on the scale of molecules – a few nanometers wide (smaller than a single cell). According to the U.S. National Nanotechnology Initiative, MNT is defined as “anything smaller than 100 nanometers with novel properties.” MNT, in its mature form, can significantly impact almost all industries and all areas of society, and can offer greatly improved efficiency in every aspect of our lives.

As with any great new development, the risks are significant. Some warn of economic disruption from an abundance of cheap products developed through MNT, economic oppression from artificially inflated prices, risk of potential criminal or terrorist use, disruption of international relations through unstable arm races, too little regulation and too much regulation of the nanotech products, and the creation of a black market in nanotech, among many others.

Whatever its impact, nanotechnology is here to stay and we will feel its full impact most likely within the next 15 years. For now, I’m just hoping that my dry cleaning bill will go down as designers jump on the nano-bandwagon.

Olivera Medenica

India Meets WTO Deadline to Amend its Patent Laws

On December 27, 2004, India took its first step in amending its patent laws to conform to WTO standards. India’s 1970 Patent Act, in its current incarnation, only provides patent protection to processes as opposed to the final product. This permissive standard has created an Indian industry whereby domestic pharmaceutical companies can make virtual copies of drugs and high-tech products patented in Western states. The result is Indian drugs that cost 7-10% of full retail price and a booming drug-market in cheaper drugs. The new law has been hotly debated by the Indian government for good reason. Although the cheaper drugs have been beneficial to the country’s poor population, it has prevented foreign companies from investing in new pharmaceutical enterprises within the country. The Act was amended through a presidential ordinance that remains to be ratified by both houses of Parliament in February.

Olivera Medenica

Pfizer gets is Mouth Washed with Listerine

Federal District Judge Dennis Chin of the Southern District of New York ruled recently that the ad campaign in which Pfizer claimed that its immortally popular mouthwash Listerine, was "clinically proven to be as effective as floss at reducing plaque and gingivitis between the teeth" was false and misleading. In a climate where the FDA is undeniably under fire as the dead beat dad of an increasingly drug fevered public, false advertising claims should be viewed with greater interest.

Typically, such claims are brought by competitors against competitors, under the “literal” falseness standard of section 43(a) of the Lanham Act (the federal trademark statute), 15 U.S.C. Section 1125(a). In this case, McNeil-PPC Inc., a Johnson & Johnson subsidiary, filed suit, arguing that false claims in Pfizer's advertising campaign that began last June posed an unfair threat against its sales of dental floss. The Judge concluded that these claims are patently incorrect in light of the evidence presented at trial and more importantly in light of the fact that Pfizer's own research articles, upon which its ad campaign was based, state that flossing is necessary for good oral hygiene. Granted, gingivitis is not life threatening.

However, a closer look at public false advertising claims against pharmaceuticals may be a necessary supplement to governmental oversight. The impact that state false advertising claims can have is apparent. Consider the Nike false advertising case, in which Nike settled a suit that accused the company of making inaccurate statements about factory conditions in letters, pamphlets and public statements for $1.5 million. Some will no doubt say that further anti-pharm litigation will increase insurance costs and send more kids to law school. However, it is a worthwhile discussion to have. False advertising claims can be a powerful means to correct over saturation of the market with pharmaceuticals that the FDA may be ill equipped to handle. Today Listerine, tomorrow Prozac?

Kaiser Wahab

Bittorrent War at Full Pitch--Lokitorrent.com is Sued

Lokitorrent.com another popular bittorent site has been sued by the MPAA. With this level of activity, it is highly unlikely that American bittorrent portals such as this will survive. The problem is worldwide and I am curious how the MPAA will address that dimension. However, weighing in their favor, a recent report by BigChampagne suggests the bulk of P2P activity is in the US. The following was posted on the lokittorrent forums:

Lokitorrent. Move off of the states servers. They cannot target Amsterdam, Africa (all of it), Australia, and a few other countries.

Making Profitade out of Lemons—Microsoft to release Free Anti-Virus Software This Week

In a move not all that surprising when you think about it, Microsoft is releasing a free downloadable antivirus program, with updateable libraries. At first blush, it is ponderous that Microsoft would enter this arena, when much of the anti-virus industry exists because of Internet Explorer vulnerabilities. Because so many of these flaws are borne out of all Microsoft OS architecture to begin with (which Internet Explorer is inextricably intertwined with), Microsoft has had to rely on cumbersome patches, the most notorious being SP2, in the interim before it releases its next Windows build. In this environment, names like Norton Antivirus and MacAfee have become household fixtures. Microsoft is also releasing a free anti spyware program as well.

Now Microsoft is taking on the anti-virus crazed market. Well the irony does not get any thicker, as this is like GM selling car brakes separately, only after a brake market was carved out by hometown mechanics on eBay. Yet when one looks at Microsoft’s product history, they have rarely been innovators, but rather adept imitators. Under their approach, they imitated, they co-opted and sometimes they bought product innovators--Lotus Notes became Excel, Mac OS became Windows, and most recently Netscape Navigator became Internet Explorer. In fact Microsoft purchased a Romanian antivirus firm, GeCAD Software Srl., for an undisclosed amount in 2003.

Explorer is the well known champion of the browser wars having routed Navigator, despite what many claim to be an inferior and more vulnerable architecture. Many also claim that Explorer’s success was the result of its bundling with Windows. The twist this time, is that the anti virus market is a direct bi-product of Microsoft’s own operating system. No doubt, this also an attempt to offset the market loss caused by the runaway success of the rival Firefox web browser.

I would not be surprised if Microsoft attempts to bundle the commercial release of its antiviral software with upcoming builds of Windows or as a compliment to current versions. This of course is fraught with legal peril as the Justice Department and the EU have already bloodied their nose with antitrust suits and sanctions resulting from previous attempts at bundling. It remains to be seen how bold Microsoft’s legal department still is after these dizzyingly expensive losses, but I am sure there is a good argument sitting on their USB backup somewhere.

Kaiser Wahab

Trade in that Old Gift Certificate for Cash

With business models that form literally overnight in a torrent of copycat sites, the Internet has given rise to a second coming of i-ventures. This holiday's entry: The Gift certifcate Redemption site. Through the miracle of e-commerce, the Old Economy of barter has found a new life in the woe of disenchanted gift givers and receivers alike. In response to the gift certificate, which itself was a response to the return line at the local shopping mall, a new site, www.certificateswap.com, will buyback/exchange your gift certifcate online, saving you the trip to the store you probably didn't like anyway.

Sign up and offer your certificate for sale at your selected price of the certificate's value or less. When the certificate is sold, a processing fee is imposed, with the balance redeemable for a certificate you actually want. Select from the rotating list of featured certificate providers, ranging from restaurants to websites.

This is another permutation of the dot-com boom that never went off, but actually has been coming, albeit more quietly than heralded, one good idea at a time.

Kaiser Wahab