Earlier we posted on the holdings in ACLU v. Ashcroft, a Supreme Court decision handed down today that, in fairly strong language, cast doubt on the constitutionality of the Child Online Protection Act (COPA)--though it certainly did not strike down the statute, despite what you may hear elsewhere.

In my view there are at least two interesting points about the opinion.

First, the majority cast doubt on the constitutionality of COPA by favorably describing blocking and filtering software. But that rationale makes the opinion somewhat bittersweet: although criminal penalties for online speech are bad (and it's good that the Court seems to agree), it's not as though filtering software is much better.

Second, Justice Breyer makes a very good point in dissent: The majority here that wholeheartedly endorses the effectiveness of filtering software is mostly the same as the dissenters who unhappily listed the faults of filtering software in the American Library Association case. Indeed, Justice Breyer seems to make a special effort to list the exact text of the dissenting opinion's criticisms in ALA.

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Michael Dobbs of the Washington Post writes that Harvard President Lawrence Summers wants to make the University "'ground zero for a scientific revolution' based on stem cell research." Ironically, the longer the White House limits federal funding for research utilizing stem cells derived from human embryos, the more grandiose claims about its promise seem to become.

I suppose anytime a potential therapy remains undeveloped, this invites all sorts of speculation, especially if access is tightly controlled and patients feel they are being denied a potential treatment. Stem cell-based therapies have been hailed as a potential “cure” for Alzheimer’s, Parkinson’s, stroke, spinal cord injury, ALS, MS, heart disease, and juvenile diabetes, among other conditions. Another interesting angle on this topic is the extent to which stem cell research is being characterized in the political arena as a means of job creation.

Of course, I’d be thrilled to see a major breakthrough on any of these fronts, and if stem cell research leads to good treatments for half these ailments it truly would be revolutionary. In the meantime, I can’t help but wonder how much revolutionary glamour this line of research would have garnered if the ban had not been imposed.

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Very quick news: The Supreme Court, in a 5-4 decision, has just sided with the ACLU in Ashcroft v. ACLU, the Child Online Protection Act (COPA) case (read the decision).

Justice Kennedy, writing for the Court, held that the District Court was correct in issuing a preliminary injunction against enforcement of COPA because the statute likely violates the First Amendment. The crucial point of Kennedy's argument is that the Government failed to show that blocking and filtering technologies were not a less restrictive alternative that would substantially meet the government's interests. Although Kennedy suggests that Congress could not actually require people to use filtering software in their own homes, he points out that Congress could pass legislation encouraging the use of filters. As a result of today's decision, the case is remanded to the District Court for trial, where both sides will now litigate the issue of whether blocking and filtering software really is a less restrictive alternative.

Justice Stevens, concurring, has some strong language about how COPA's criminal penalties are simply inappropriate for this kind of regulation.

Justice Breyer in dissent, writing for the Chief and Justice O'Connor, essentially disagrees point by point with Justice Kennedy, but he also has a section in the beginning arguing that COPA is actually not that speech restrictive.

Justice Scalia, writing for himself in dissent, remains true to his philosophy and argues that commercial pornography is not protected by the First Amendment. See also his opinion in the City of Littleton case, where he makes the same point in a zoning case regarding an adult entertainment facility.

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The Federal Circuit has ruled that "patents.com" cannot be registered as a trademark. A Colorado law firm uses www.patents.com as its home page (complete with circa-1997 web design) and applied to the Patent and Trademark Office for a trademark. The PTO said no, on the grounds that that "patents.com" is just a description of what Oppedahl and Larson LLP provided: software for tracking patent applications. The Federal Circuit affirmed.

In meta-meta-IP news, the Federal Circuit's decision, as a work of the federal government, is not copyrightable.

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Teleread points to a survey of the ten most popular "borrowed" e-books for the first half of 2004 (OverDrive's library stats: 'Dude' most borrowed e-book, Adobe most used reader). Michael Moore's Dude, Where's My Country? is number one. However, interestingly, George Orwell's 1984 is tenth.

What is interesting about 1984 is not only that it is probably the best literature on the list, but that it has to be "borrowed." You see, you can download free copies from the internet, because in Australia, unlike the US, 1984 has entered the public domain. US library e-book users can only "borrow" 1984 as an ebook. Aussies can download a copy and keep it forever. As Teleread points out, however, Aussies are considering changing the law and undoubtedly, as in the US, free works will once again be locked up. It is called copyright "restoration," as if the public domain has damaged the work or something, a use of the term Orwell would probably have ironically appreciated.

You can download works in the public domain in Australia (but not in some other nations) here: Project Gutenberg of Australia. Be warned, however,

Under Australian copyright law, literary, dramatic, & musical work published, performed, communicated, or recorded and offered for sale in an author's lifetime are protected for the life of the author plus fifty years from the end of the year of the author's death. However, they may remain copyrighted in other countries. Do not download or read these books online if you are in a country where copyright protections can extend more than 50 years past an author's death. The author's estate and publishers still retain their legal and moral rights to oversee the work in those countries. [emphasis added]

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The Internet country code for Iraq is ".iq" - but try searching for websites within that domain and you won't find any.

In 1997, ICANN assigned management responsibility for the domain to InfoCom, a Texas-based company, now on trial in Dallas for terrorist connections. Since the war, several Iraqi groups have applied to take over administration of the name, but ICANN has delayed, citing political instability and uncertainty. Symbolically, it's a major sovereignty issue. Newly reorganized government agencies have to register their websites as .com or .org -- domains maintained in the US.

All this is according to an AP story written by reporter Brian Bergstein. I read the article at Salon.com, but you have to watch a Flash-animated advertisement to read the whole story unless you're a subscriber. A more accessible link to the same story comes courtesy of the Salt Lake Tribune.

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The feds this week busted an AOL software engineer and charged him with selling the company's customer list to a spammer. That's 92 million email addresses; at $100,000 for the list, each address was worth about a tenth of a cent. The engineer and his fence face five-year prison terms, and I predict that AOL will face a massive class action civil suit.

UPDATE 2:15 June 25: Whoops; double post. Sorry.

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The FCC's proposed decreased regulations have been blocked by the Third Circuit Court of Appeals. The plan would have lifted restrictions on cross-media ownership or ownership of multiple television stations in one market. The court demanded that the FCC better explain the numbers established for ownership.

FCC's Chairman Powell refers to extensive studies and claims the standard set by the court to defend any bright-line limits is impossible. Commissioner Copps claims the decision shows that the FCC should question its policies and start new research.

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A West Virginia AOL employee has been arrested for selling the screennames of millions of AOL users. This arrest (and the charges) show just how valuable CAN-SPAM has become.

AOL first learned that an insider was selling the names in discovery proceedings for CAN-SPAM civil suits earlier in the year. It used internal logs to find the identity of that employee. Using other discovery documents, AOL connected the employee to the spammers, who face CAN-SPAM charges also and are looking to offer testimony for lesser charges.

Thanks to CAN-SPAM, AOL was able to find its mole and he now faces criminal charges and could face up to five years in prison or hefty fines. AOL also has an array of civil remedies for trade secret theft or violation of contract, and there are also state laws criminalizing stealing trade secrets.

(comments? | Spam Laws Worldwide)

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In Utah, a judge has issued an injunction stopping the only state spyware law. The lawsuit was filed shortly before the law would have gone into effect in May. The advertiser plaintiff, WhenU, has claimed the law is an unconstitutional taking under the state constitution.

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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?

Update: This article is a good analysis of the controversey.

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

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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.

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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 related 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.

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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?

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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.

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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

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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."

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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...

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