W&M Partners to Give Lecture at Harvard for Wikimania 2006

W&M partners Olivera Medenica and Kaiser Wahab will lecture at Harvard Law School (home of the Berkman Center for Internet & Society), as featured guests at the 2006 Wikimedia Conference (“Wikimania 06” August 4th-6th). Wikimania 06 is the second international conference organized by the Wikimedia Foundation. It is the main forum for new media professionals and academics focused on the issues and challenges confronting wiki and open source technologies. In addition, W&M's partners will present a research paper for Wikimania.

Last year's speakers included Jimmy Wales (founder and chair of the Wikimedia Foundation), Ross Mayfield (founder and CEO of Socialtext Incorporated), Ward Cunningham (programmer and inventor of the first wiki), Richard Stallman (founder of the free software movement, the GNU Project and the Free Software Foundation). Sponsors of the event included Answers.com, SocialText, Sun Microsystems, DocCheck and Logos Group. This year Yochai Benkler (expert in communications law, Professor of Law at Yale University) and Lawrence Lessig (chairman, Creative Commons) shall also speak.

Wikis and open source technologies are changing society and discourse at an astonishing rate and W&M is proud to participate in the ongoing process and dialogue.

Let the Net Prom Begin-Yahoo, eBay, AP, and Technorati Pick Dance Partners

Today we see two big developments involving two big partnerships.

The Associated Press has announced a deal with Technorati to highlight blogs that link to AP articles. The deal is an outgrowth of AP's (a non-profit owned by U.S. news organizations) efforts to increase its visibility in a chaotic world where blogs are increasingly the news source du jure for many. Technorati is one of the premier blog search engines and has the ability to distill those blogs that make use of AP material.

Technorati will scan blogs for posts that link to AP stories. The search results will provide links to the posts as well as the relevant AP story derived from AP Hosted News, which powers the news offerings of a multitude of sites, not the least of which is Yahoo. Conversely, Technorati will list blogs against the ''Top Five Most Blogged About'' stories, something of a top headline list generated by blog traffic, which will again allow the user to access those blogs and the source AP content. There is a revenue sharing aspect to the arrangement, but the details are not yet clear.

In other big big news, Yahoo has unveiled its most favorite nation strategic alliance with eBay. Partly in retaliation to the Google-AOL alliance, "Yabay" will see eBay leveraging Yahoo banner ads and integrating Yahoo services into eBay's toolbar downloads. Yahoo on the other hand will exclusively use eBay's PayPal for online payments. Certain to boost their operating revenue in the time to come, the alliance apparently does not extend to China. Given the neo-techno-colonial rush to take over the Chinese net market, this is not surprising, as business collaboration tends to occur with declining opportunity.

For Microsoft, this alliance means it's the only pretty girl at the prom without a date. While Google has already partnered with AOL, the Seattle slugger, Microsoft, will likely have to pick someone. Speculation abounds, but strong candidates include MySpace and an older but still attractive Amazon.

Patent Troll without a Club

"Patent troll" is a not so friendly term used to describe a patent owner, usually a shell company, whose express purpose it is to amass patents and acquire licenses for such patents, under threat of infringement litigation and certain injunction. The ugliness stems from the fact that these trolls rarely engage in the business of the targeted "infringer" and actually have no intent of engaging in that business. Let anyone who has not heard of the Blackberry case hang their head in shame. Under the calculus of settlement, the troll will seek to leverage their threat in a way that spares the "infringer" the bloody nose of a costly litigation, but still results in significant royalties for the troll.

But let there be rejoicing, for a unanimous Supreme Court has just held that an automatic injunction in the event a federal court finds infringement of a patent is not acceptable. Whether the Supremes actually have been paying close attention to the increasingly fierce cottage industry that is patent trolling is unclear. Nonetheless, they have robbed the trollers of one of their most potent weapons. What the RIM people must be thinking of this opinion, handed down a heartbeat after a 612 million dollar settlement, a gaping hole blown in their credibility, and ground lost to competitors (think Treo 650), is another matter. (RIM's appeal to the Supremes was shot down since it was based on a narrow interpretation of the Patent Act and whether RIM was outside the Act's jurisdiction since its main relay station is in Canada.)

The eBay decision does not really address patent trolling per se, nor does it impose any form of "use" test akin to trademark, as some have suggested. Under trademark law, a TM holder must consistently demonstrate use of that mark since the Lanham Act is founded on the principal that the goodwill trademark seeks to protect is borne out of recognition in the marketplace. In other words, if you don't visibly participate in the marketplace, your mark has no value and therefore deserves no protection. Patent protection on the other hand is designed to provide incentive for invention, much like copyright is deigned to provide incentive for original creation—in both cases the protection is a reward for innovation in the abstract, not commercialization. Hence both copyright and patent allow its owners to not only exclusively exploit the protected item, but to deny others that right, even if the owner himself chooses not to.

Attorneys Represent

There are some who choose to believe the practice of law must be a solemnly sacerdotal enterprise. Then there are those with a sense of humor. Attorney Andrew Sinclair hails from the latter camp.

This is evident in his niche branded line of lawyer related street fashion line, dubbed "Tortfeasor." I am rather fond of the "Attorneys Represent" Tee.

Kiss Kiss Click Click--No .xxx Domain for Now

ICANN has finally bowed to pressure and scrapped any plans for a .xxx domain which would effectively create a red light district on the net. Ironically, in a nod to the increasing use of "contact info" only websites, it is considering a .tel domain to host personal directories for cell, fax, and even MySpace info.

The Net Act--Criminals on the Home Network

Did you know the bittorrent of Led Zeppelin's box set you're downloading right now may be a criminal offense? Few people recognize that although the Copyright Act imposed criminal liability only in the event the infringer intentionally infringes for commercial benefit, there is now (actually for almost 10 years) a specialty Act that can target the casual P2P user.

The No Electronic Theft Act (NET Act), passed in 1997, provides criminal liability for individuals who engage in copyright infringement, even when there is no monetary profit or commercial benefit from the infringement. The key ingredient is trafficking of copyrighted goods via electronic means. Hence, the NET Act could be applied to unauthorized P2P file sharing of MP3's or the now dreaded sharing of TV shows and films. The irony is that at the time of enactment, the real threat of the day was pirated software. Under the Act, penalties can be up to three years in prison and up to $250,000 in fines. The NET Act also raised Copyright's statutory damages to the current range of $750 to $30,000.

The most striking aspect of the Act is its imposition of criminal liability in the complete absence of mens rea, where the infringer neither obtained nor expected to obtain anything of value for the infringement. The Net Act was borne out of the unsuccessful prosecution of David LaMacchia in 1994. LaMacchia, then a student at the Massachusetts Institute of Technology, allegedly engaged in massive copyright infringement, distributing volumes of copyrighted goods to third parties without receiving any gain—a quintessential infringement hobbyist. As a result, LaMacchia did not face criminal liability. The Net Act was partly a response to that episode.

As of 2006, the NET Act has been judicially applied in the realm of large scale "warez" trafficking. Based on the DOJ's resources and the MPAA/RIAA's litigation programs it is unlikely that the DOJ will be using the NET Act against the casual eDonkey user anytime soon, but who knows?

Sideshow Google--Policy Arguments in the Google Print Case

The Google Book Search case is finally ready to move ahead (into discovery at least). In the meantime, Paul Aiken counsel for the Author's Guild which is right down the hall was kind enough to share his thoughts with NYCLA and I at our offices. Though I will not entirely recant the issue I am much more inclined to see the Guild's position than I was even last week.

I now know that a major Guild argument is security. More specifically, it is the absence of security for courtesy copies to be given to participating libraries as a quid pro quo. As part of its deal, Google promised copies of the scanned archives for the participating library to use and, in one case, share with other libraries as the library pleases. There is no control or oversight of these copies. Indeed, in the University of Michigan's case, there is no liability due to the sovereign immunity doctrine. It should also be noted that the other university libraries participating in the program are only putting up their public domain material. So the Guild argument goes: what's to prevent the theft and instant dissemination of these copies?

There is enough debate about the legality of scanning and archiving entire books without the serious danger that Aiken pointed out. One can envision the "12 Monkeys" scenario where copy left guerillas abscond with a few CDs and the next day the net is rife with bittorrent bestsellers. What the security argument also underscores is that Google's archiving is not as simple as going physical to digital. I asked whether the Guild would reconsider its position if the security issue were addressed by Google. The question was shrugged off, presumably because of the primacy of the Guild's Copyright argument. Accordingly, the security argument is a tack on, while the real debate is whether the fair use doctrine works the way Google wants it to.

The irony is that both Google and the Guild are heavily relying on policy arguments, not black letter law in a vacuum. When you look at step one of Google's process, the word for word copying and archiving of a library en toto, fair use seems unlikely. So there ends the inquiry no? Not quite, the 9th Circuit for example has declined to mechanically apply Copyright in light of the big picture (The Arriba Soft case bears eerie similarity to this case, where the 9th Circuit declined to find copyright infringement in the thumbnail image search engine then used by Arriba). Hence the sideshow arguments are worth watching.

Here we are with a picture as big as any other, driven by competing visions of the future. The Guild envisions a nightmare future of helpless authors finding their work smeared all over the net. Google on the other hand, envisions a nightmare future where Copyright seriously cripples a digital information Utopia. Let's see which one actually captures the hearts and minds of the Court.