Tiffany® is suing eBay for aiding trademark infringement. Tiffany® claims 73% of "Tiffany" jewelry sold on eBay last year was counterfeit and asks for profits eBay made off counterfeit products or a lump sum per type.

Do we really want eBay to have to be an inspector of everything it helps to sell? Responsibility for infrigement (and most profit from it) is on the individual sellers primarily, and the case is clear against them. eBay's responsibility must be based on some theory of negligence, but it seems the duty of inspection is best delegated to the buyer, who is well aware of the risks of buying on eBay. Should eBay be able to pick out all fakes? Or just really bad ones?

Tiffany® is a registered trademark of Tiffany and Co., New York.

(comments?)

The EU's formerly strict patent system has been slowly evolving to include software. Though the EU once explicitly excluded software patents, current regulations are more ambiguous and many patents have already been issued.

On Thursday, the EU is considering changes to a more American style patenting system. In the US, software methods have been patented broadly; for more abusive examples see the EFF Patent Busting Project. Let's hope there will never need to be an EFF European-Software-Patent Busting Project.

(comments?)

A heavily modified version of Rep. Bono's spyware bill has made it through the House Subcommittee on Commerce, Trade, and Consumer Protection. Its next step is the House Committee on Energy and Commerce.

The subcommittee has cleaned up this bill quite a bit. As predicted here at LawMeme, the awful acronym of SAPIA has been changed to include SPY. The new version is SPY ACT (Securely Protect Yourself Against Cyber Trespass Act). Previous gaping definition problems have been replaced with more clear terms, and consent is defined explicitly ("This program will collect and transmit information about you and your computer use. Do you accept?’") and must be consented to with 'Yes' or 'No.' The program must also disclose what is being collected and for what purpose.

Bug or Feature? SPY ACT Act (maybe SAPIA was better) preempts state law realted to misleading programs or installation, but not about fraud (hazy distinction here). It also exempts cookies explicitly, though the rest of the statute is careful not to be so wedded to current technology.

(comments?)

O. Carter Snead over at The New Atlantis has written an article entitled "Technology and the Constitution." In it, he asks the following question:

How does technological innovation affect one particular approach to constitutional interpretation--"originalist textualism," the belief that the text of the Constitution should be construed and applied accordingto its originalmeaning?

(Read More... | 2334 bytes more | comments? | Links)

I'm attending the 2004 American Constitution Society Convention this weekend. This morning there was an interesting panel on "Reframing Democracy: Texas, Georgia, Pennsylvania and the Redistricting Battles." I wanted to just mention one thing that the panelists mentioned: the increasing use of computer software to redraw voting districts, and the implications thereof.

(Read More... | 3567 bytes more | comments?)

As predicted here at LawMeme in April, Hormel (the owner for decades of the SPAM(R) trademark for the canned meat product) is accusing Scott Richter of trademark infringement in his "Spam King" clothing line. After the Hormel cease and desist letter, the clothing line is on hold until the issue is resolved, a shame for all the "hip-hop, grunge, and skateboarding crowds," who Richter thinks find spam-themed clothing to be cool. Richter is also facing various charges for spamming. The Nike actions also predicted for Spam King's less than original slogans have not happened. Yet.

Richter's team of lawyers, obviously a fearless crew, is suing Spamcop for defamation, interference with profit, and contract violations. The self-proclaimed "Spam King" and his company, OptInRealBig, find it defamatory to be labeled a spam source.

Add to the mix a potential trademark claim by Hormel against Spamcop (though this has not been done yet), and these lawyers will be seeing a lot of one another.

(comments? | Spam Laws Worldwide)

Cory Doctorow gave a talk at Microsoft today which distills the huge case against DRM down into a single lucid, incendiary, brilliant essay

Here's what I'm here to convince you of:
1. That DRM systems don't work
2. That DRM systems are bad for society
3. That DRM systems are bad for business
4. That DRM systems are bad for artists
5. That DRM is a bad business-move for MSFT

(Read More... | 4 comments | Links)

This aspect of China's economic development is reminiscent of the early history of agriculture in the US, when public officials encouraged Americans to collect seed samples from abroad and facilitated breeding experiments in the absence of legal IP protection for plant varieties. Jack Ralph Kloppenburg, Jr.'s First the Seed offers a comprehensive history of the plant ag field, despite Kloppenburg's sometimes polemical tone."

(comments?)

EU regulators are charging France with violating EU rules by requiring cable companies to overcome regulatory hurdles before offering other services such as phone or Internet. The accusations claim that the regulatory environment in France stifles competition. The EU is fighting antitrust cases in phone service all over Europe. Last year, the EU fined a French telecom $12.5 million for pricing violations.

Compare to the recent California ruling forcing SBC to unbundle DSL from local phone service...

(comments?)

Too many of the recommendations seem to be framed by those who view Internet users with hostility, such as the recommendation to punish domain name users when a domain name is cancelled or suspended for "false contact data," by canceling all other registrations with identical contact data. In the main, however, recommendations reflect at least a sentimental, if not serious, attempt to balance competing interests. Still, something fundamental was overlooked by the Task Forces: a reflective reconsideration whether WHOIS should be an entirely public database.'"

(comments?)

Many people (including myself) have been watching how the UK’s December 2003 spam legislation has developed. Though there was little hope for it at the time, it seems the situation is now out of control, and no one believes the UK legislation (though based on the strong EC Directive) will do much at all.
(continued. . .)

(Read More... | 5546 bytes more | comments? | Spam Laws Worldwide)

Dave Winer is a weblog guru. He founded Userland, makers of the popular blogging Radio software (adopted en masse by Salon and the Berkman Center, among others). He's the driving force behind RSS, one of the two leading standardized formats for web content "syndication."

Winer is also the creator of Weblogs.com, which works as a directory of recently-updated weblogs. In its earlier years, Weblogs.com was an adjunct to Userland and also offered free subdomain-based weblog hosting: that is, you could set up a Radio blog and have it hosted at myblog.weblogs.com. The free-hosting offer was turned off after a while, and after Winer left Userland, he took over the hosting himself. It turned out to be a bigger server load than expected.

Yesterday, Winer buckled under the stress and shut off the hosting. For more on the monumental stupidity of this decision, see inside . . .

(Read More... | 8028 bytes more | 18 comments)

Today the 11th Circuit Court of Appeals, a day after the DirectTV settlement not to sue for mere possession, ruled that DirectTV lacked standing to sue individuals for mere possession of equipment to steal signals, though this is still a criminal offense.

This ruling about standing for a private right of action reaches beyond the scope of the DirectTV debate because it precludes other copyright owners in the future from making similar claims against future technology owners without showing damages, at least not using the Wiretap Act and not without overcoming the now Constitutional standing problem acknowledged by the 11th Circuit.

(Read More... | 2 comments)

One provision of CAN-SPAM required the Federal Trade Commission to investigate the possibility of setting up a national "do not spam" list for email similar to the "do not call" list in force for phone calls. Given spammers' typical practices, however, many critics said that a "do not spam" list would in fact be a gold mine of valid email addresses and that punishing violators would be impratical.

Today, the FTC will announce that it agrees with the critics and will not create a do not spam registry.

(comments? | Links)

For several years, satellite TV provider DirecTV has been suing people who use illicit decoders to steal its signals and get free service. The problem is that DirecTV has been treating anyone who buys a smart card writer as a potential TV thief.

Individuals who can afford lawyers to fight back have gotten DirecTV to drop their individual suits, but for many innocent consumers, settling was cheaper than proving their innocense. Making matters worse, DirecTV's demand letters were frequently misleading, intimidating many people who weren't aware of their (quite substantial) legal rights. The result: sending out unfounded demand letters was a major profit center for DirecTV.

The EFF and Stanford's Cyberlaw Clinic, recognizing extortion when they saw it, established DirecTV Defense to fight back, helping consumers threatened by DirecTV band together and providing information on defenses and counterclaims.

Today, DirecTV agreed to send more informative and balanced letters, to drop unfounded cases more quickly, and to set a higher threshold of proof before siccing the lawyers on individual consumers. These practices should go a substantial way towards curbing the abuses that have characterized DirecTV's anti-piracy campaign.

Let's hear it for the EFF and the Stanford Cyberlaw Clinic, for DirecTV, and for negotiated solutions.

(Read More... | 1 comment | Links)

Next month is the deadline for libraries that receive federal E-rate funds to install censorware on public access computers. (ALA v. Ashcroft, decided last year, rejected a constitutional challenge to that requirement.) But an AP story is saying that some libraries are choosing to opt out of the E-rate program entirely, forgoing the federal technology funding. Apparently, the amounts of aid per library are sufficiently small and the application process sufficiently cumbersome that the filter requirement is a back-breaking straw.

As one of my professors said, "If you're going to set a trap, you have to remember to bait it."

(Read More... | 1 comment | Links)

Visit the Kahle Submission Site and tell us your story."

(Read More... | 1 comment)

(comments? | Links)

Matthew Skala, inspired by the discussion here about Monolith, has written a great great essay on the conceptual divide between lawyers and computer scientists. I deal with this divide on a daily basis, and Skala has nailed it: lawyers' work iinvolves reasoning about things computer scientists know don't exist.

His central metaphor is the color-coded (er, "colour-coded") world of Paranoia.:

Bits do not naturally have Colour. Colour, in this sense, is not part of the natural universe. Most importantly, you cannot look at bits and observe what Colour they are. . . .
The trouble is, human beings are not in general Colour-blind. The law is not Colour-blind. It makes a difference not only what bits you have, but where they came from.

That said, much of the time, they don't, and Skala has a pretty convincing theory why. Go have a read.

(Read More... | 10 comments | Links)

The EFF is asking the public to submit nominations for "the ten worst offenders in the world of intellectual property." The EFF will then unleash its elite strike force of attack lawyers and fire-breathing technologists to have the Patent Office reexamine -- and, with luck, revoke -- the patents most damaging to Internet innovation. Entries should be:

• Issued in the United States,
• Related to software or the Internet,
• Having a substanial negative effect on innovation,
• The subject of active enforcement efforts by their holders,
• Invalid, and
• Stoo-pid.

(comments? | Links)

WEBLOGS
Balkinization
bIPlog
Copyfight
Daily Whirl
Displacement of Concepts
GrepLaw
Gigalaw
ICANN Watch
infoAnarchy
Kuro5hin
NewsForge
Slashdot
Siva Vaidhyanathan
The Importance Of