Podcasters Hope to Raise SHIELD Against Patent Trolls

Ahead of the standard introduction to his February 28, 2013 episode of his WTF Podcast, standup comic Marc Maron decided to shine a light on patent trolls, or “non-practicing entities” ("NPEs") as they are otherwise called. These organizations have been characterized as shell companies that procure broad patent portfolios, do not produce content, and sue inventors for patent infringement if the invention allegedly incorporates a patent held in the portfolio. Winning in court is not even the endgame for the troll here, because the defendant may be someone who can ill afford to continue in drawn-out litigation, and therefore the inventor may opt to settle.

Protracted patent litigation is well-trodden ground for the likes of Apple and Samsung. Apple has been criticized for wielding broad patents against competitors like Android with respect to touchscreen smartphone interfaces. On a different scale, this is occurring in the arena of podcasting. A February 7, 2012, patent issued for Personal Audio LLC that it is being put forth as essentially preempting podcasters in the medium, many of whom are small operations out a garage speaking to their audiences in weekly installments on all matters of, well, anything at all. Personal Audio has actually taken on Apple in the past and won $8 million in a suit for infringement of downloadable playlists.

Personal Audio’s patent is said to be the precursor to podcasting, as it set forth a “system for disseminating media content representing episodes in a serialized sequence.” Some of the podcasters Personal Audio has reached out to and invited to apply for a license include Maron, Adam Corolla, and Stuff You Should Know. Personal Audio has been criticized for having “not sold a product since 1998.”

The SHIELD Act, an acronym for Saving High-Tech Innovators from Egregious Legal Disputes, was initially introduced in 2011 by Rep. Peter DeFazio (D-OR) and Rep. Jason Chaffetz (R-UT) and intended to create a loser-pays rule by which the loser of the patent infringement or validity suit would be made to pay the costs of the opponents’ fees for the proceedings. The idea is to deter would-be litigants from filing frivolous suits regarding computer hardware and software patents, specifically, “where the court finds the claimant did not have a reasonable likelihood of succeeding.” The software portion is defined as covering “(A) any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent; or (B) any computer system that is programmed to perform a process described in subparagraph (A).” The revised bill intends to expand its scope to all patents to protect not just technology companies, but retailers, manufacturers, podcasters, and municipalities from being subjected to predatory litigation, as expressed in a press release from Rep. Chaffetz’s site.

It would seem like an oddly unjust policy to allow for a patent to cover a medium in its entirety; in the case of podcasts, an application of electronic audio files in a serialized form disseminated online. Legislative efforts like the SHIELD Act could help prevent patent litigation undertaken in bad faith.

For many podcasters, monetizing the podcast is an issue. While the format may be inexpensive, with the producers of the content often using nothing more than their microphones and a computer for interviews, it is not generally lucrative in a direct way. It seems that much of the value derived from the podcast for the broadcaster/podcaster is the goodwill it generates with the audience. It can also be an effective means of self-promotion; for example, a comic promoting his upcoming appearances and shows. Another mechanism for income is the utilization of ads for things like stamps.com or audible.com. This is all to say that podcasters may make for an odd target for this type of litigation, even if some podcast authors are more well-known and have somewhat deeper pockets. Is it because some in this demographic earn just enough to yield a promising settlement but not enough to pursue all-out “sport of kings” patent litigation?

There is also a question as to whether there should be a distinction made between original content available exclusively in the podcast format from, for example, a radio show on NPR that is broadcast live on terrestrial radio and via livestreaming online, and then packaged for downloads later as a podcast. Should podcasters now have to consider the high price of patent litigation just a cost of doing business?

As suggested in some comments on related articles like Techcrunch.com’s The Death of the Non-Practicing Entity?, additional measures could be taken to close potential loopholes, and to craft legislation to address not only NPEs, but NPEs that purport to be practicing entities. Arguments against the SHIELD Act suggest that it might stifle startup companies that have legitimate patent claims from litigating those claims, because the costs would be too burdensome if unsuccessful. Addressing the categories of companies that occupy the grey areas between practicing entities and NPEs might address that concern in some measure. What still remains is the larger issue of fairness and incentives created by the current standards used by the US Patent and Trademark Office in patent examinations and whether they are truly effective in promoting innovation, which was the original intent of patent protection in the United States Constitution.

Cameras in the Courtroom in Ohio

Permitting cameras inside of America’s courtrooms would allow the public the opportunity to see and learn more about the daily occurrences and processes of our nation’s legal system. Opponents argue that such coverage could pose harmful effects surrounding the privacy of those involved in the proceedings. Initial disfavor for banning cameras occurred after sensationalized public trials, such as the trial of Bruno Hauptmann who was accused of the kidnapping and murder of Charles Lindberg’s baby. This frenzy was furthered by the O.J. Simpson case in the 1990s. Proponents of cameras suggest that by providing insight into daily activities, the cameras would reveal to viewers that day-to-day activities are not always exciting, separating typical court proceedings from television show portrayals and dramatic public trials.

The public has a legal right to attend court and most courts are open and accessible to the public. However, many of the court proceedings occur during normal business hours so attending court may prove impracticable for most working Americans. While individuals have a right to access the proceedings, there is no First Amendment right to have cameras in the courtroom. Fundamental differences exist between attending court and having the proceedings recorded and broadcast on television or over the Internet.

There are different ways that the public can receive this information; one example being through a live-feed, or videos posted online. Live streaming video footage can be accessed on court’s websites and is more commonly used in state courts. Federal courts tend to be more restrictive and may choose to videotape the proceedings and then post those videos online. Federal courts also impose greater restrictions than state courts, including: no live streaming video (videos will be archived and posted online at a later date), only civil matters may be filmed, recordings are made by court employees rather than the media, and consent for the recording must be granted by the judge and both parties.

Many Americans are accustomed to receiving instant updates and news stories via social media outlets on the Internet. The benefit of facilitating access to courts online in a format that is user-friendly may be a wider appeal to a broader, younger audience. On the other hand, social media was not a concern when cameras were first introduced into courtrooms. Instant responses by social media and clips from trials going “viral” may occur as a result of our connectedness and globalization. With today’s ever-connected society, the reactions may divert too much attention in a way that threatens a fair trial because of adverse publicity.

Opponents point to privacy concerns as a major downfall of implementing cameras. Some have noted that cameras can be intimidating for witnesses and jurors and juror anonymity certainly should be a major concern with cameras in a courtroom. A ban on filming the jury at any point in the proceedings is one suggestion for removing any nervousness or fear of retaliation. Another issue is the security of witnesses, especially in regards to "snitches" (confidential informants), undercover investigators, and victims of sexual abuse and domestic violence.

The presence of cameras is an issue that should and will be dealt with in courts of every level; from local courthouses to the Supreme Court. Historically, cameras have been banned from the Supreme Court, but the newest members of the Court, Justices Sotomayor and Kagan, initially supported the idea of cameras during their confirmation hearings. However, once confirmed, both Justices changed their positions and supported a continued ban on cameras. They expressed concerns that Justices will play to the camera, and that the clips will be used for unintended purposes, such as political ads. Maybe it is too early to tell, but perhaps broadcast of courtroom proceedings will be comparable to C-SPAN coverage in the future, and it will serve as a useful and beneficial tool, allowing for greater access and understanding of what happens in America’s courtrooms.

Cable a la Carte? Don’t Get Your Hopes Up

Today’s cable industry provides TV subscribers with more channels than they could ever want or need, but at what cost? What if subscribers could pick and choose only the channels they know they’ll watch instead of having to pick a “bundle” of channels together? Some consumer advocates are hoping such “a la carte” cable subscriptions will be the result of a recent Antitrust lawsuit Cablevision filed in Federal court against Viacom. Cablevision alleges Viacom forces the company to carry (and pay for) fourteen “lesser watched” channels in order to have access to Viacom’s popular channels. The added costs, Cablevision says, are passed on to the consumer.

In a recent Wall Street Journal article a spokesman for Cablevision said “without the 'take it or leave it' requirements of bundled programming packages at a wholesale level, cable companies could tailor smaller and lower-priced packages that could offer flexibility and have great appeal to specific interests and audiences." While it would be nice to think that Cablevision is out championing for consumers and hoping to pass along lower prices, Viacom doesn’t see things that way, with a spokesman for the company quoted in All Things D as saying the lawsuit a “transparent attempt by Cablevision to use the courts to renegotiate our existing two month old agreement."

With many television shows readily available online some people have already “cut the cord” and unsubscribed from traditional cable. As online streaming technology continues to improve one would hope it’s only a matter of time before cable goes the way of the land-line telephone. At the end of the day, both Cablevision and Viacom are fighting to prevent that from happening. Cablevision wants to keep customers by offering competitive prices and Viacom wants to protect its bundle – because goodness knows it wouldn’t make any money on MTV3 if we all weren’t forced to subscribe to it.

A la carte programming though? Probably not in the near future, unfortunately. If a la carte programming were available it would likely be on the internet – and it’s certainly not what Cablevision is seeking from this Antitrust suit. Cablevision wants to be able to buy only the top channels from Viacom so Cablevision can turn around and bundle them all together for their subscribers. So even if Cablevision wins the lawsuit consumers will likely still have channels they don’t watch (and will never watch ), but perhaps they’ll just have fewer of them.

Registered sex offenders’ right to free speech – Is a ban on social media unconstitutional?

In January 2013, the United States Seventh Circuit Court of Appeals struck down an Indiana Law that made it a misdemeanor (or, in some instances, felony) for registered sex offenders to use a social networking website. Implying that the law was too broad, the panel of judges declared that while the state has a legitimate interest in protecting the safety and welfare of its children, the law "targets substantially more activity than it seeks to redress.”

In the suit, initiated anonymously by a registered sex offender released from prison in 2003, “John Doe” alleged that the law infringed upon his First Amendment constitutional rights. After the trial court found the law constitutional, the case went before the Seventh Circuit who declared that laws implicating the First Amendment must be tailored narrowly. They found that a blanket ban on social media for all registered sex offenders does not fit within this narrow interpretation.

One reason the argument before the court was so complex was because it was simultaneously over- and under- inclusive in terms of the outlets it restricted. It banned sex offenders from using not only sites that allow minors to sign up, but also ones that allow users to create a website or a personal profile, and that provide users with an opportunity to communicate with another person online. If this definition were applied literally, even sites such as Amazon.com, YouTube and CNET, as well as thousands of other blogs and retail sites could have been included, as each afford members the opportunity to create profiles and comment and interact with each other.

While this decision will most certainly be precedent for other states considering legislation that monitors sex offender internet use, other states such as New Mexico are already considering enacting similar laws. A proposal in New Mexico introduces legislation that would ban all registered sex offenders from using any websites, including social media, that incorporate instant messaging or chat room features that the sex offender knows include individuals under eighteen years old. The first violation of this law would be considered a misdemeanor, and any subsequent violations would be treated as felonies.

Opponents of this proposed New Mexico law (and other similar laws proposed in Louisiana and Nebraska) argue that these laws are unconstitutional attempts to severely limit free speech and do not consider that many registered sex offenders did not commit a crime against a minor. On the other side of the argument, however, proponents of these laws present the argument that broad legislation banning the use of any website that allows communication between members and the creation of profiles prohibits substantial protected speech. While the protection of minors is a legitimate state interest, it is not substantial enough to so thoroughly infringe and restrict any registered sex offender’s free speech rights.

While there is still work to be done in order to strike a balance between the protection of minors on the internet and the preservation of First Amendment free speech rights of registered sex offenders, legislators are currently working to devise a narrower proposal that will achieve both ends. As of yet, it is still uncertain what the fate will be for those who have previously been charged under the newly-struck-down Indiana law.

LinkedIn Favored in Lawsuit over Hacking

LinkedIn provides an online community for professional networking, where prospective members may sign up by providing their email address and registration passwords, which are all stored to LinkedIn’s database. Although registration is free, for a monthly fee, LinkedIn members may upgrade to premium accounts, which allows access to increased networking tools and capabilities. During the registration process, the prospective LinkedIn members must agree to the LinkedIn’s User Agreement and Privacy Policy regardless of the type of accounts they decide to get.

In the Privacy Policy’s Security section (http://www.databreaches.net/wp-content/uploads/LinkedIn.pdf) it states “In order to help secure your personal information, access to your data on LinkedIn is password-protected, and sensitive data is protected by SSL encryption when it is exchanged between your web browser and the LinkedIn website. To protect any data you store on our servers, LinkedIn also regularly audits its system for possible vulnerabilities and attacks, and we use a tier-one secured access data center. However, since the internet is not a 100% secure environment, we cannot ensure or warrant the security of any information you transmit to LinkedIn . . . . It is your responsibility to protect the security of your login information. Please note that emails, instant messaging, and similar means of communication with other Users of LinkedIn are not encrypted, and we strongly advise you not to communicate any confidential information through these means.”

In June 2012, LinkedIn suffered a data breach where a hacker posted over the Internet 6.5 million password hashes and e-mail addresses from LinkedIn users. Of the 6.5 million hashes, 60% were cracked. Angered about the security breach, two premium account users (“Plaintiffs”) filed a class action suit against LinkedIn on behalf of all who also paid an extra fee to the networking server. The complaint included nine causes of action, two of which are relevant for the class action suit: (1) breach of contract and (2) restitution or unjust enrichment. However, before going into the merits of the claim, standing became an issue. To have standing: (1) an injury is concrete and particularized, as well as actual and imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) the injury may be mitigated if given a favorable decision.

The Plaintiffs argued there was standing because they did not receive the full benefit of the bargain for the paid premium memberships. They alleged that in consideration of the extra fees, LinkedIn would take extra measures to protect these premium users’ personal information. The Plaintiffs further argued that if they had known that LinkedIn would not have provided these extra security features, they would not have upgraded their accounts. Federal District Judge Davila of the Northern District of California rejected this argument finding that the additional fees the Plaintiffs paid were not for extra security, but for the advanced networking tools and capabilities. Any alleged promise LinkedIn made to premium account holders were also made to non-paying account holders, and thus when a member purchases this upgrade it is only for the additional networking features. And as such, Davila found that there lacked a causal relationship between LinkedIn’s actions and the Plaintiff’s assertions of alleged harm.

Although it is unfortunate that LinkedIn users’ passwords and email addresses were revealed, these sorts of things happen all the time. As technology advances, so will hacking intelligence. The only way to prevent hackers from infiltrating these private servers is to be a step ahead of them; an impossible task.

NYPD & Microsoft join together to create a high tech crime fighting dashboard

It sounds like something out of a futuristic science fiction movie, but the New York Police Department’s Domain Awareness System is far from a fantasy. This system, nicknamed the “dashboard”, connects the cities over 3,000 public and private cameras onto one central network. This system has allowed the police department to respond to crime more quickly, more effectively, and also more efficiently.

The way that the system works is best illustrated by a hypothetical scenario. Hypothetically, a call comes in for a bomb in lower Manhattan. An alert would contact the officers and they would be able to focus their cameras on the threatened area. The cameras could scan for heightened levels of radiation as well as suspicious behavior. This type of response creates a safer working environment for the officers as it provides them with crucial information prior to entering the field. As the Fox News article states, it enables officers to know what they are getting into. According to the Fox News article, it is the city’s hope to connect this system to a laptop in every police cruiser. This would allow for real time updates and more effective crime management.

Right now the Domain awareness system is getting most of its use in the counterterrorism unit. Jessica Tisch, who is the director of planning and policy for the counterterrorism unit, was quoted referring to the system, saying “it works incredibly well”. According to the Fox News article the system was used during the “deadly shooting outside of the Empire State building this past August”. With so many calls coming in, it originally looked like there were multiple shooters. However, after the system pulled cameras within 500 feet of the area and mapped the data, police were able to determine that there was a single shooter.

Besides being able to detect bombs, other uses of the Domain awareness system include access to the entire departments arrest records and emergency calls. Also, in addition to the 3,000 connected security cameras, there are also license plate readers and portable radiation detectors being used.

One of the interesting twists of this story involves Microsoft. In 2009, the NYPD approached Microsoft with the idea of developing this type of technology. According to Richard Daddario, the NYPD’s deputy commissioner for counterterrorism, “usually you purchase software that you try to work with, but we wanted this to be something that really worked well for us, so we set about creating it with them”. It was estimated that the development of this software would cost between $30 and $40 million. The city also looks to potentially benefit financially from this system. A potential marketing deal between the NYPD and Microsoft would pay the city tens of millions of dollars according to the article.

While this system will undoubtedly create a more effective and efficient police force, many citizens are rightfully concerned about the privacy implications that come with a surveillance system of this magnitude. This system provides immense power to a small group of individuals. Being able to track an individual, without a warrant or scan an individual’s license plate without cause could raise Constitutional issues not only in privacy but also invalid search and seizure. The courts will have to take a serious look at this system. While it does increase our safety as citizens and provide the NYPD with a tool leading to more effective policing, its unregulated use could prove quite invasive.

Bowman v. Monsanto: Unlimited Right to Sue on Self-Replicating Genetic Technology?

On February 19, 2013, the United States Supreme Court heard oral arguments in Bowman v. Monsanto, Docket No. 11-076, a currently a pending decision. This case involves the question of whether the patent exhaustion doctrine applies to seeds, a self-replicating technology. A blog article entitled "A Soybean in the Supreme Court" does a snappy job of describing the case and the issue in layman’s terms. The two lower courts that have already decided on the matter both concluded in favor of the chemical giant, Monsanto. My argument is that this is one of many cases where the law has not caught up with technology. A seed (and, for that matter, a baby animal) is not like any non-self-replicating product, and policy should be changed to take account of the difference.

As aptly summarized by authors Raustiala and Sprigman, Mr. Bowman, now seventy-five years old, bought seed from Monsanto and signed a standard agreement not to use the seeds for anything but one planting, to give away the seeds or save any of their progeny. The agreement is recited in the decision of the most recent court to decide the case, the Federal Circuit, sitting in Indiana: Monsanto Co. v. Bowman, 657 F.3d 1341 (Fed. Cir. 2011). He later decided to plant a second crop in the growing season, and for this riskier venture, he purchased cheap seeds, more often used for animal feed, from a grain elevator where farmers sell discarded seeds. While Mr. Bowman was upfront with Monsanto, he did save seeds from the second crop, and planted them in following years. Monsanto eventually investigated his crops, found second planting seeds to contain its patented technology, and sued for multiple infringement of two patents.

The seeds he bought were "Roundup-Ready" soybean seeds. "Roundup-Ready" seeds have been genetically modified to live through a spraying with Monsanto’s "Roundup" herbicide, made with N-phosphonomethylglycene, commonly known as glyphosate. The herbicide will kill all other plant life in the field, eliminating weeds in a situation where hand-weeding would not be economically feasible, but other herbicides were only intermittently effective. But only "Roundup-Ready" soybeans will survive it. A non-patented older variety would wilt. This solution to the “weed problem” is described in the District Court case, Monsanto Co. v. Bowman, 686 F.Supp. 2d 834 (S.D. Ind. 2009).

The particular patents in the "Roundup-Ready" soybeans are patents 605 and 247E. The 605 patent is for the use of viral nucleic acid from the cauliflower mosaic virus, which is able to infect plant cells, as a method of introduction of new genetic material into plant cells. Using the 605 patent in the soybean, Monsanto was able to introduce the particular transformation covered by patent 247E, in which protein-encoding plant cells that encode for a glyphosate-tolerant enzyme were added. This created the glyphosate resistance in the "Roundup-Ready" soybeans.

Mr. Bowman argued that the patent on the seeds sold to the grain elevator was exhausted when the first farmers bought the seeds. The patent exhaustion doctrine limits the right of a patent holder to sue on that patent after the patented good has been sold. “A Soybean in the Supreme Court” gives a good example; if you buy a car containing many patents, and sell it to someone else, you’re not liable for infringement, because the patents in the car were exhausted at the first sale. The analogous doctrine in copyright law is the first sale doctrine. Many exclusive rights under copyright are exhausted once the physical copy is purchased, so if you sell a used book, there is no infringement problem. Nevertheless, you cannot make a copy of a Cadillac and then sell it as your own invention. That’s what Monsanto argued: by saving seeds that turned out to have the genetic characteristics that made them glyphosate-resistant, and planting them for a second crop in serial years, Mr. Bowman was replicating the technology.

Both the District Court and Federal Circuit came to the conclusion that if you make a copy of a seed by growing a plant and then saving its seed, you are infringing a patent—even after it has been sold twice. The exhaustion doctrine did not apply. Nevertheless, this non-traditional view of the exhaustion doctrine amply demonstrates the difference between a plant and a car. A car is made and done with. By its nature, a car eliminates the expectation that it will reproduce itself, and therefore the need to investigate car dealerships and local driveways, worry about in whose hands this car is, and sue repeatedly to remind owners that they cannot make a copy, all of which Monsanto does to maintain its patent rights over its genetically modified soybeans.

Raustiala and Sprigman point out that at least two of the Supreme Court Justices, Sotomayor and Chief Justice Roberts, appeared to be on the side of Monsanto. Chief Justice Roberts expressed the opinion that no one would want to make improved seed varieties if the patents could eventually be taken and replicated. This is the seminal reason for the existence of patents: to encourage people to invent and improve goods by ensuring financial reward for that invention. Justice Sotomayor said, “The exhaustion doctrine permits you to use the good that you buy,” but not to make another item out of the item you bought. On the other hand, when a “good” that gives birth, or sprouts, produces additional little replica goods, people need do very little to be hauled into court.

I would suggest the U.S. at least institute a policy to keep genetically modified crops from mixing with other crops. The European Union adopted regulations ensuring the traceability of genetically modified crops, while acknowledging that “certain traces of GMOs (genetically modified organisms) in products may be adventitious or technically unavoidable.” The regulations are accompanied by guidelines to be followed as best practices to prevent the mixing of ordinary, genetically modified, and organic crops. Neither are militaristic in restriction of patented self-replicating plants, but the existence of such regulations merely acknowledges the problem and tries to create a framework to control these patented goods. The life inherent in the genes of a seed does not know to whom it belongs, and will, like the Kudzu vine on southern roadsides, take over, if given the chance.

The U.S. should not let its self-determination and independence as a nation convince it that corporations may profit on their, yes, fascinating, yes, amazing patents, without limit. The blog that first drew my attention suggests that this is only the first wave in a sea of litigation to come, noting that many patents are already held on animals. I am completely at a loss to say what can be done legally with a patented animal: classified as a good, similar to a seed in its reproductive capabilities, but, at least in the case of Dolly, the cloned sheep, similar to humans in that it is warm-blooded and gives birth to live young. On the "Roundup-Ready" issue, counsel for Mr. Bowman made a few policy arguments in District Court, including the argument that Monsanto should have the responsibility to warn the grain elevator, or the farmers that sold the seed to it, about mixing. The District Court stated in reply that it “may disagree with the decision to award unconditional patent protection to Monsanto . . . but this court does not make policy; rather, it interprets and enforces the law, which, in this case, does not support Bowman.” Let’s make that policy now.

Skype: A New Way to Testify

In time, distance and illness may no longer excuse some witnesses from testifying in court. Courts are gradually becoming more accepting of the use of technology in courtrooms to promote efficiency and fairness at trial. However, while using technology, such as Skype, in the courtroom instead of in-person testimony may simply be another progressive step taken by courts into the twenty-first century, it also gives rise to legal controversy.

Rule 804 of the Federal Rules of Evidence provides an exception to the rule against hearsay when a witness is unavailable due to infirmity, unavoidable absence, or forfeiture. Furthermore, the Sixth Amendment to the United States Constitution gives criminal defendants the right to “confront” witnesses who testify against them. The defendants have the right to be present and in view while the witness testifies, and also enjoys the right to cross-examine such witness. When a witness is unable to testify in court, the defendant should have had an opportunity to cross-examine the witness in order for the admissibility of testimonial out-of-court statements.

Skype is a web-based service that allows individuals to make free Internet video phone calls. If one has a laptop or mobile phone with a solid Internet connection and a front-facing camera, they could reach another person, or people, almost anywhere in the world for a video phone call.

Recently, there have been a few instances in civil and criminal cases, where courts have allowed the use of Skype so a witness could testify. In one instance, Law Technology News reported that an out-of-state witness was allowed to testify against the government via Skype in a criminal case because the defendant could not afford the witness’s travel costs. There were a few technological glitches during the witness’s testimony due to a few brief Internet disconnections, yet there was a large flat screen television set up in the courtroom for the jury, and others in the courtroom, to see. This decision by the Georgia Superior Court raised Confrontation Clause issues because the witness’s testimony was technically made out of court. However, since the defendant is calling this witness to testify via Skype, his confrontation rights were not at risk. In another instance reported by the Wall Street Journal Law Blog, a bedridden man looking to extend a protection order against his estranged wife was allowed to testify from his home using Skype. The lawyer used his iPad for the Skype call so the judge and opposing attorney could watch the call. In spite of some connection issues during the testimony, those involved found that using Skype was more efficient and cost-effective than the accommodations needed to bring the witness into court.

It was only a matter of time before court adopted this advance in technology. Attorneys use information from Facebook and e-mail as evidence, for example, so it is not surprising that video conferencing technology is slowly being implemented into courtrooms. While it is understandable why some may hesitate to accept the use of such technology for evidentiary or constitutional reasons, courts already find some forms of video technology acceptable in pleas, depositions, and testimony from children. Furthermore, when one makes a Skype call, attorneys for both parties may direct or cross-examine the witness as they normally would during testimony in court, thus the Confrontation Clause argument is weakened. The use of Skype may also help in saving money for all parties by limiting travel or special accommodation expenses. However, some money is necessary in equipping courtrooms with adequate technology and service connections to make Skype calls run more smoothly. Nevertheless, if courts are able to work out the technological kinks in making Skype calls to out-of-court witnesses, this may be an effective and economical solution to problems of getting certain witnesses into the courtroom.

The Times They Are A’ Changin’: Sony Exploits Recent Copyright Term Extension, Releases 50 Year Old Bob Dylan Tapes

After a recent European Union Directive, which extended the term of copyright for sound recordings, Sony has released a collection of Bob Dylan tapes in order to take full advantage of the situation. The 2011 Directive extends the term of protection for sound recording copyrights from 50 to 70 years. But, the work must be published within 50 years of creation. Recordings by many popular British bands of the 1960s, including the Beatles, the Rolling Stones, and the Who, are right at the 50 year mark. Sony recognized that the 50 year window’s expiration was approaching and released the tapes.

If not released before January 1, 2013, the works would have been dedicated to the public domain and free for anyone to exploit without requiring permission or payment to Sony. The new release, “Bob Dylan: The Copyright Extension Collection Vol. 1,” includes alternate takes of “Blowin’ in the Wind,” “Bob Dylan’s Dream” and “I Shall Be Free,” as well songs that missed final cuts and live performances from Carnegie Hall.

The Directive, named “Cliff’s Law” after the 1960s British pop singer who campaigned aggressively for the extension, is seen as a victory for many aging superstars, including the aforementioned British invaders, as well as American artists like Frank Sinatra, Miles Davis, and Mr. Dylan, who recorded in Europe. In an interview with the BBC, The Who’s Robert Daltrey explained that the Directive ensured that artists could continue to receive royalties into their old age. “They are not asking for a handout,” he said, “just a fair reward for their creative endeavors.”

Not everyone is as pleased with the extension, however. The Electronic Frontier Foundation points to numerous reports concluding that longer terms will not benefit the smaller acts and session artists whom the Directive was designed to protect. A study by the Center for Intellectual Property Policy and Management at Bournemouth University in England calculates that 72% of the financial benefits from the Directive will accrue to record labels, and the vast majority of the remainder to superstar acts, not those musicians identified in the Directive. And many argue that restricting the public’s access to recorded works for another 20 years will hinder creativity, an outcome seemingly at odds with a fundamental aim of copyright law.

U.S. Considers Economic Sanctions against Chinese Hackers

The United States Executive Branch is considering enacting economic sanctions against individuals and countries that attempt to hack U.S. networks. Other policies that may be considered include visa restrictions, military action, and State Department diplomacy efforts. Intellectual property concerns are the main motivation in the White House’s consideration of the issues of cyberattacks and cyber theft. White House Cybersecurity Coordinator Michael Daniel is the official responsible for developing a strategy to address the internet issues between US data owners and hackers.

The policy considerations seem to be in response to recent news alleging that a military unit of Chinese hackers based in Shanghai have been attempting to hack into U.S. companies’ data. The administration has not named China specifically in these policy discussions, but the news, along with hacker attacks involving The New York Times, The Washington Post, Apple, and other companies, are part of the backdrop of this initiative. The White House is encouraging Congress to develop legislation surrounding sharing information about cyber threats, fortifying cybersecurity measures, and establishing law enforcement tools for such crimes. The Commerce Department has also been involved in setting standards for cybersecurity.

These measures are part of an ongoing struggle regarding intellectual property between U.S. innovators, and entrepreneurs in countries such as China that borrow U.S. designs and technologies without regard to ownership. While the U.S. is clearly concerned about innovation and innovators’ rights, more needs to be done before China will respect property rights as the U.S. and inventors desire.

More here.

Drone Strikes Threaten Due Process

The chairman of the Senate Intelligence Committee, Dianne Feinstein, recently said that she will review proposed legislation that would create a special court, analogous to the Foreign Intelligence Surveillance Court, tasked with reviewing drone strikes ordered by the executive branch. A push for such legislation comes during an administration that has utilized drone strikes more than any other. During the Bush administration, less than 50 drone strikes were executed, while during the Obama administration more that 360 have been launched. Of the many people killed in these drone strikes, at least 4 have been U.S. citizens—Anwar al-Awlaki being the most notorious.

This recent course of action raises an interesting constitutional question: do drone strikes targeting U.S. citizens violate the due process clause of the Constitution? The Fifth Amendment precludes the government from depriving a U.S. citizen of life without due process of law; essentially meaning that if the executive branch orders the death of a U.S. citizen without judicial approval, they have violated the citizen’s constitutional right to due process.

Michael Isikoff of NBC News acquired a Department of Justice white paper that illustrates the U.S. government’s position with regard to lethal force against senior operational leaders of al-Qaida, who are also U.S. citizens. According to the white paper, the government may order the death of such a target when a high level U.S. government official, informed of the facts, determines: 1) that the target poses an imminent threat of violent attack against the United States, 2) that capturing the target would be unreasonable, although this option is continually monitored in the event that it becomes reasonable, and 3) that the operation would not violate relevant principles of the laws of war. The U.S. government’s position is that when these circumstances have been met, the target has received sufficient due process and that the constitution has not been violated.

This standard, however, does not apply a typical interpretation of the word “imminent.” According to the white paper, imminence does not require the threat of violent attack to take place in the immediate future because the nature of terrorist attacks requires a broader interpretation. This broader interpretation calls for incorporating the window of opportunity for the attack, the mitigation of collateral damage, and the likelihood that the use of lethal force will prevent an attack against the United States. Theoretically, this definition allows the government to launch a lethal drone strike against a U.S. citizen at anytime, regardless of how close the target is to realizing a violent attack against the United States.

This raises many questions. Who is this high-level U.S. official in the government determining whether or not this standard has been met? What standard is used to determine if due process has been satisfied if the targeted U.S. citizen is not a senior leader of al-Qaida? These are the very questions that have led the public and Congress to consider whether or not judicial oversight of these lethal drone strikes is necessary.

A promising form of judicial oversight could be a special court tasked with reviewing the facts of a proposed drone strike and approving the strike or denying it. This court could be similar to the Foreign Intelligence Surveillance Court (FISC) that was created in response to concerns that the executive branch was abusing its authority to conduct domestic electronic surveillance in the interest of national security. Typically, if the government wants to engage in domestic electronic surveillance, one of eleven judges on FISC must review each application in a closed hearing and grant the warrant. However, if the government believes an emergency situation exists that would preclude the government from following this procedure in time, it may act without a warrant so long as it reasonably believes that the surveillance is constitutional and a judge on the FISC is notified, among other requirements.

A special court empowered to review the executive branch’s decision to execute a lethal drone strike is an appropriate safeguard, consistent with our traditional governmental structure. The need for such a court is further solidified by allegations made by former top U.S. officials such as Stanley A. McChrystal, former leader of the Joint Special Operations Command, and Michael V. Hayden, former C.I.A. director, who suggest that U.S. drone strikes in Pakistan and Yemen are now more frequently targeting low-level militants. This suggests that the administration is becoming increasingly more liberal with use of drone strikes, which could certainly increase the risk for collateral damage. Also, this increase in targeting low-level militants does not instill confidence that the executive branch will apply the standard illustrated in the white paper when U.S. citizens are the targeted low-level militants. The white paper only justifies targeting U.S. citizens who are senior operational leaders of al-Qaida and who are continually planning attacks against the U.S. Since low-level militants are less likely to fall within the definition of an operational leader, yet attacks on low-level militants are becoming more frequent, it is not clear what standard the executive branch uses to determine if a U.S. citizen who is a low-level militant has been afforded due process. This ambiguity suggests that an independent court is necessary to ensure that the executive branch affords all targeted U.S. citizens due process.

The government’s stipulation that the three-point standard for killing a U.S. citizen in a foreign country provides a citizen with sufficient due process is not adequate. The nature of terrorism and the threat it poses to the United States does not outweigh the substantial interest a U.S. citizen has in their own life. By ordering the death of a U.S. citizen without judicial approval, the executive branch is exceeding the power afforded to it by the constitution by taking the life of its own citizen without due process of law. To prevent future instances of these unilateral decisions, a special court, similar to the FISC, should be established to review and approve any executive branch decision to execute lethal drone strikes targeting both U.S. citizens and non-U.S. citizens.

Hail a NYC Taxicab on a Smartphone? Not Yet.

Considering that there is a smartphone application for just about everything these days, it is surprising that the New York City Taxi and Limousine Commission (TLC) did not approve a pilot program for electronic hail applications (e-hail program) until last December. However, the day before the pilot program was set to launch in NYC on February 13th, The Livery Roundtable and Black Car Assistance Corporation, among others, filed suit claiming that the program was improperly passed. The petition argued that the pilot program was invalid because the TLC failed to obtain City Council approval before starting a year long trial period for the e-hail program.

The e-hail app. would allow passengers using the application on their smartphones to identify available taxis in their area and/or hail a taxicab using the device. Alternatively, taxi drivers will be able to locate passengers in need of rides and/or receive electronic hails. Some companies with pre-existing e-hail applications such as Uber, GetTaxi, Hailo, and Flywheel were required to augment their pre-existing e-hail applications in order to conform to the TLC’s e-hail program regulations. Specifically, the TLC wanted to ensure that passengers and drivers used the application exclusively to hail, or accept hails, not bribe drivers with cash bonuses.

While the TLC was excited about the e-hail program and believed it would benefit both passengers and drivers, some companies lobbied against the program. Unsurprisingly, those in opposition of the e-hail program include the aforementioned petitioners Black Car Assistance Corporation and The Livery Roundtable, as well as other black car companies. The companies believe the e-hail system will generally hinder the livery business and negatively impact certain segments of the NYC population, specifically the elderly and the lower class. While this maybe true since yellow cab drivers and passengers will be easier to locate, there is nothing preventing black car companies from developing their own applications.

Nonetheless, the TLC and Mayor Michael Bloomberg remain unconcerned by the petitioners’ injunction and informed the public that the e-hail program was validly passed.