Saturday, January 29, 2005
In the language of statistics, Bayes' theorem relates phenomena observed in the present (the evidence) to phenomena known to have occurred in the past (the prior) and ideas about what is going to happen (the model). Mathematically, the formula is represented as
P(ty) = --------------
For nonmathematicians, understanding the implications of the theorem without recourse to real-world metaphors is difficult. So imagine a short-order cook working in a busy café. In a din of conversation, clattering plates, and street noise, the waiters dash by the kitchen counter, shouting orders. What a customer actually ordered is t in the above equation. The garble the cook hears is y. A Bayesian decision process would allow the beleaguered chef to send out as many correct orders as possible.
He has some prior knowledge: Few customers order the smothered duck feet, while the steak frites is a perennial favorite. The cook can use information like this to calculate the prior probability that a given dish was ordered: P(t), or the probability of t. He also knows that one waiter tends to mispronounce any dish with a French name, that a bus roars past the restaurant every 10 minutes, and that the sizzling sounds from the skillets can obscure the difference between, say, ham and lamb. Taking these factors into account, he creates a complicated model of ways the orders might get confused: P(yt), the probability of y, given t. Bayes' theorem allows the chef to chain the probabilities of all possible influences on what he hears to calculate the probability, P(ty), that the order he heard was for the dish the customer chose.
It's pretty easy to see how this type of model could be helpful in constructing an application that could learn what's Spam and what's not Spam.
The Quest for Meaning
In 2000, Wired Magazine ran a great article on the efforts of a UK company called Autonomy and how they were using the ideas of Reverend Thomas Bayes to build a next generation tool to extract meaning from unstructured text data. It's a good article.
The Turing Test
Snipped from http://cogsci.ucsd.edu/~asaygin/tt/ttest.html#intro. The Turing Test was introduced by Alan M. Turing (1912-1954) as "the imitation game" in his 1950 article (now available online) Computing Machinery and Intelligence (Mind, Vol. 59, No. 236, pp. 433-460) which he so boldly began by the following sentence:
I propose to consider the question "Can machines think?" This should begin with definitions of the meaning of the terms "machine" and "think."
Turing Test is meant to determine if a computer program has intelligence.
Many Spam Filters use a challenge response system to weed out automatically generated email messages. They respond with a challenge that can only be met by a human, thus defeating automated email programs that generate Spam.
See me to talk about these topics.
- eDiscovery developments (Zubulake and new federal rules of ediscovery)
- J. Westermeier's (sp?) Computer Law Roundup
- Internet Taxation (Moratorium extension and state taxation of Internet sales of goods)
- EU Tax issues Electronic Voting
Privacy and Security
- Disposal rules for consumer data (SEC, FTC, FDIC)
- State Roundup (e.g. California update on the new mandatory disclosure of security threats, SB1, etc.)
- RFID (passport technology, Walmart, etc.)
- FBI Abandoning Carnivore
- Case on ECPA (transient memory)
- HIPAA Security Regs
Financial Services Issues
- Check 21
- Electronic payment systems
- Fin Srvcs patents
- File Sharing (Grokster, Bittorrent)
- Jay Monahan speech
- Adware/Spyware update
- Spam Updates (German decision, Suits and criminal prosecutions,
- Regulatory landscape for VOIP
- Technology export
- Electronic monitoring of employees
- Advertising issues (?)
- UNCITRAL developments
- Recent defamation claims in UK; competitors
- Arrest of Amazon guy in India
- EU Data Privacy Developments (Set 2 of Model clauses, Work Group decisions)
- EU Taxes
Friday, January 28, 2005
The group discussed several topics, and John Gregory has produced a very detailed account of their activities. To review the detailed notes, you can access the summary here. The topics included:
- Cross-border investment transactions – risks and solutions
- Developments in the law relating to jurisdiction
- VoIP – international regulation
The list of technical problems included:
- Filtering technologies that deal with spyware, adware, and spam
- Blacklists of certain mailservers
- Companies that require outgoing spam filters (recipients or recipients domains must be on a "whitelist")
- Anti-virus software
- Proposed changes
- Technology that ads "signatures" or "footers" to outgoing email messages that state the email can't form a contract
The group then explored the impact of these technological barriers in the following contexts:
- Contract formation
- Notices of termination, default, etc.
- Court filings
- Ethical obligations to inform clients of certain events
- Communications with co-counsel
Some of the solutions (a start on a list of best practices) the group identified included:
- contract clauses that email is never an acceptable form of notice
- contract clauses that override the presumptions in UETA and require acknowledgement of emails (but what does "acknowledgement mean? Does my "Out of Office" message constitute acknowledgement?)
- use of technologies (like Web Bugs) to track receipt
The group also pondered several other issues:
- Is UETA already outdated on this subject?
- Can we describe these issues by creating a continuum of communciations that are more or less suitable to email as the means of transmission?
- How significantly business people rely on email for all of their communications and how they are very reluctant to do anything in paper form (who has envelopes anymore?)
This discussion will likely blossom into a program idea.
The discussion led quickly to the technology and legal intersections that are being dealt with in the transferable records (and electronic chattel paper) world. Many ideas -- few authoritative conclusions. Oops -- we don't even know what Authoritative means.
And so it goes...
Please note the following deadlines:
Hotel Registration Deadline
Advance Registration and Refund Deadline
Program materials available on the Web
The February 16 Materials Deadline is really a DEAD line. Talk to John Lunseth if you have questions about your materials.
Friday afternoon we will be jumpstarting our "open source" project and perhaps refocusing it or combining forces with other subcommittees and working groups.
Saturday morning co-chairs Eric Goldman and John Ottaviani will discuss their "top 10" Cyberspace IP decisions of 2004, with a number of honorable mentions. Mark Lemley and Jay Monahan touched on a number of these in their presentations Friday morning.
The remainder of the time Friday and Saturday will be spent brainstorming potential new projects and sending people off to start working on them.
Feel free to join us in Room 272!
Vince Polley -- Grand PooBah of the Committee, speaks to the plenary session of the CLCC WWM on January 28, 2005
Vince pointed out that membership continues to grow -- we are currently at 1660 listed members in the Committee, an increase of 20% over the last year.
Candace Jones then updated us on the committee's primary information repository on all of our various and sundry project -- the "MATRIX." (No, not the Matrix.) She reminded all of the group leaders that they MUST get updates on their respective matrix entries to her regularly and quickly after the meetings. Please help us in this regard, because the Project Matrix is one of our primary resources when recruiting new members.
Matthew Zinn, General Counsel of TiVO speaks to the CLCC WWM plenary session, January 28, 2005.
Matthew gave us an overview of the TiVO technology, relating it to how the DVR industry is changing much of the landscape that our clients will be facing in the coming years. TiVO is moving it's technology to be able to use combinations of traditional broadcast/cable/satellite content providers as well as content that will be delivered through broadband connections. This will allow for personalized delivery to individual users. Among other things, this allows for micro-audiences that might not be able to justify a traditional TV channel (even in the brave new world of "57 Channels (and Nothing's On)").
The new broadband services, if they are to be commercially viable, pose numerous technology and legal challenges. The size of the files, and the need for big pipes, and the need to make 'ordering' easy enough for "anybody's grandfather" to order the shows, make the technology a bit of a challenge -- but not insurmountable. iTunes has shown how it might be done in the music world, so there are business models out there that can offer guidance. Any legal regime will probably have to deal with content owners' demands for DRM and/or encryption. (Digital Rights Management is really an expression of a user's rights in the content, which requires encryption as well as a control mechanism.) There will need to be an anti-piracy method. Patent-holders will certainly come out of the woodwork once this gets released, and the company needs to have a method to address this concern as well (which led to the interesting turn of phrase, the "patent terrorist").
Jay Monahan, Deputy General Counsel for eBay and primary IP counsel for the company, followed Prof. Mark Lemley. A copy of his slides from the presentation are posted here.
His first discussion concerned the problems that eBay has with automated robotic access to the eBay system, and how that has a direct economic impact on eBay users because of slow-downs on the eBay systems. The primary 'weapons' that they have been using are
- Technology -- helps, but not a panacea. IP addresses are easily changed, robots are getting better at hiding themselves, and the bot users are smart. There are some successes at using rate limiting filters, and GIF blocking (the fuzzy little pictures you see on a sign-up screen -- bots can't read them very well).
- Breach of Contract -- To get any account, one must agree upon a user agreement. This has been their best tool to date.
- Statutory -- The federal CFAA has been somewhat useful, given that it has a fairly broad definition of damages that trigger the law (but still need to meet the $5000 threshhold). There are state statutes that parallel the federal act -- in particular, California Penal Code Section 502(c), which has a much lower threshhold of entry, and allows for attorney fees as well (and there is a civil action under the statute as well).
- Common Law Trespass to Chattels -- the primary case is eBay v. Bidder's Edge. Court found that use of capacity and THREAT of future harm was adequate. eBay given an injunction. This line of analysis has been followed by others. Register.com vs Verio 356 F.3d 393 (2nd Cir 2004); Ticketmaster v Tickets.com (2004 L.L> 21406289 ( C.D. Cal) (court determined that there was insufficient showing of damage, using Bidder's Edge analysis); Intel v. Hamidi (30 Cal. 4th 1342 (2003).
Jay also discussed eBay's experience in the Hendrickson cases. An author complained about eBay's sale of unauthorized copies of a documentary about the Manson family. eBay agreed to follow its take down policy, but they asked the author to identify the infringing goods. The author refused and said it was eBay's obligation to find the infringing goods. The court ruled in eBay's favor and held that eBay wasn't required to monitor, the act of monitoring wouldn't expose eBay to liability, and that eBay was entitled to DMCA immunity. Hendrickson also sued eBay for Lanham Act violations alleging trade dress infringement. The court held that the sole remedy for the alleged claims was an injunction and because eBay had already removed the infirnging items, there was no need for court action.
Jay's presentation then routed through a summary of the recent history of DMCA cases, including Ellison v. AOL, and Corbis v. Amazon (December 21, 2004, DC WD Wash.).
The third problem is based on how eBay users can give each other ratings as sellers and buyers. The targets of these ratings will sometimes feel they have been defamed in the process, and will sometimes attach eBay for their damages. The Communications Decency Act 47 U.S.C. Section 230(c)(1) has been eBay's primary tool in this arena. In Stoner v. eBay -- a plaintiff sought damages on behalf of an uncovered class of all of humanity over eBay's alleged assistance in infringements of Led Zeppelin recordings -- the court tossed the case on CDA grounds. In Grace v. eBay, the California local court gave eBay a good CDA analysis, but the Court of Appeals gave an unfavorable reading of the CDA -- the Cal. Sup. Ct then de-published the Court of Appeals decision, so the issue has been left open.
The defamation concerns get more twists and turns once the defamed party comes from outside the USA. eBay has created a form 'remarkably similar' to a DMCA takedown notice, and has offered this mechanism to its non-USA users to ask for a takedown. So far, the process has worked well for the company.
The fourth issue for eBay is how users of their affiliate company PayPal will use the PayPal service to accept payments for illegal products. The Perfect 10 v Visa case (Dec 3, 2004 USDC N.D. Cal) has decided that Visa's connection to the allegedly infringing site was "too attenuated" to pose liability on Visa's part acting solely as a credit card merchant. Not enough to just show economic influence" over the infringer.
The fifth issue discussed was how competing auction sites use the "bay" phrase, and eBay's successes in that area. These are typically litigated under traditional trademark infringement tools.
Vince Polley can be reached using vip54law (for AIM users) and firstname.lastname@example.org (for MSN users).
McGuire: email@example.com (don't use it for email)
Steve Gold: sgold664
Vince Polley: vip54law
Add your screennames as comments to this posting?
MSN has a new Webmessenger tool that allows anyone to join an MSN chat.
Professor Mark Lemley of Stanford Law School kicks off our group's opening session.
Mark discussed the current controversies surrounding use of trademarks in the mechanisms behind targeted advertising systems -- where a set of keywords are used to trigger advertising responses. He laid out the diverging court views on whether or not this is even a trademark 'use' in the first place -- where it's not even a 'use' in the first place, one need not even step into the trademark infringement analysis. For sake of argument, if one presumes that this process steps into the 'use' realm, Mark suggested that there is not necessarily a single answer, but that a traditional set of trademark principles should apply to the analysis. "Just as I can set my bottle of generic Ibuprofen next to the bottle of Advil on the retailer's shelf..." He made clear that just as there are legitimate uses of other's trademarks (e.g., in the world of comparative advertising), there are just as well non-legitimate uses of other's marks (e.g., ads designed to intentionally confuse consumers).
This led to a discussion of the principles of initial interest confusion. Mark asked us to remember the differences between a situation where a consumer driven across town to retailer A where they really wanted to find retailer B versus the internet. In one case, the consumer may have invested enough in the initial visit to prompt her to just buy at the first store and miss the second store. In the other, the consumer merely needs to hit the back button. The People Eating Tasty Animals case which allowed the PETA organization to stop the use of the peta.com domain name under a concept of initial interest confusion. Mark suggested that the analysis failed to look for any essence of consumer "confusion," and stopped at the point of finding 'initial interest.'
Mark also asked us to ponder the points of liability -- contrast the advertisers versus the publishers (or, the search engines in this instance). The risks that the search engines have in this area have led the primary engine companies to set up rather bold policies of taking down once a complaint comes in. He suggested that this has something of a chilling effect on the advertising community, particularly because the status of a protected trademark is hardly a black-and-white question (worsened once we have to start looking at trademark legal systems outside of the USA, since different jurisdictions will provide different answers).
Remember, busses leave this morning at 7:30. A map of the Campus is here.
Thursday, January 27, 2005
Read the cover story on the latest issue of Wired about the birth and rapid growth of the new Firefox browser. Ahem....note the Minnesota connection.
Download Firefox. Just try not to download it using our WiFi connection at Stanford. You'll consume too much bandwidth.
Warren Agin has the Firefox file on a USB Flash Drive.
Wednesday, January 26, 2005
Tuesday, January 25, 2005
I'm dying to learn how I can get bumped up in the queue for my upgrade to the latest TiVo version so that I can play with TiVoToGo. Maybe we can learn a few tricks from Matthew while he's with us. And hey, they gave away free TiVos to Comcast customers a few weeks ago, maybe they'll have a few left-overs.
Because parking at the Law School is nearly impossible, Jackie has arranged shuttles that will transport us from the hotel to the Law School and back again.
There will be two shuttles leaving the hotel at 7:30 am on Friday and Saturday and traveling to the law school. Shuttles will also pick up and return to the hotel at the end of each day of the meeting and will bring people to and from the Committee Dinner on Friday night
Monday, January 24, 2005
If you want to take the train from SFO to Palo Alto, you can do so simply and inexpensively. Exit the terminal at SFO, following the signs to the AirTrain. Domestic Terminals 1, 2 and 3 each have an AirTrain station located on Level 5 of the Domestic Parking Garage. To access Terminals 1's station, take the elevators/escalators down to the tunnel connector to the parking garage. Terminal 3's station connects to the terminal via a passenger skybridge. Take the elevators/escalators to Mezzanine-Level 3. Take the AirTrain (free) to the Garage for International Terminal G and the BART (Bay Area Rapid Transit) station. For more specific information, go to http://www.flysfo.com/guide_nonflash/airportinfo/AirTrainBrochure.pdf .
Buy a ticket on BART at the kiosks near your exit from the Air Train. The fare to Millbrae is $1.50 each way per person. Buy enough credit for a round-trip ($3.00) ticket. Proceed through the BART entrance gates and down the escalator to the BART platform for Millbrae. Take the BART train to Millbrae.
At the Millbrae station, go over the CalTrain tracks and, before descending to ground level, buy a ticket at the vending machine. You will need a 2-zone ticket ($3.00, Senior/Disabled/Youth fares are half-price). Descend to ground level and take the next CalTrain southbound to Palo Alto. Disembark at the Palo Alto station. The Sheraton (a garden hotel) is southeast of the station, in the area bounded by the CalTrain tracks, University Avenue, and El Camino Real, as shown on the attached map. Simply walk across the street, enter the hotel through one of the side entrances, and proceed to the lobby.
Stanford University covers the area on the other side of El Camino Real. The Stanford Shopping Center (a major regional shopping center including national chains, such as Macy's, Nieman Marcus, Nordstrom's, et al.) is on university property.
If you have free time and want to visit San Francisco, you can take CalTrain all the way into San Francisco, to the station at the end of the line at 4th and King (near the Giant's stadium), cross the street, and take the Muni (streetcar) into downtown San Francisco or out to Fisherman's Wharf. Alternatively, take CalTrain to Millbrae, switch to BART, and take BART into downtown San Francisco.
For more information, check www.bart.gov <http://www.bart.gov/> or www.caltrain.org <http://www.caltrain.org/> , where you can find fare information, schedules, system maps, and more. For additional information about public transportation around the Bay Area, including inter-system travel and the ferries, check www.511.org <http://www.511.org/> .
Take Highway 101 South to Embarcadero Road West. Proceed approximately two miles and turn right onto El Camino Real. The hotel is located three blocks down and on the right side.
Take Highway 101 South and exit onto Embarcadero Road West. Proceed approximately two miles and turn right onto El Camino Real. The hotel is located three blocks down on the right side.
Take Highway 101 North and exit onto Embarcadero Road West. Proceed approximately two miles and turn right onto El Camino Real. The hotel is located three blocks down and on the right side.
Take Interstate 280 East and exit onto Page Mill Road East. Proceed approximately two miles and turn left onto El Camino Real. The hotel is located two miles down and on the right side
[For the record, the forecast for Minneapolis only about 20 degrees cooler. And, we could have gone sledding. Once again, we should have gone to Minnesota for the Winter Working Meeting! Oh well, there's always next year.]
The implementation of Check 21 is a major milestone in the move from paper to an electronic world. Sarah Jane Hughes will lead a discussion of the issues that Check 21 raises for depository institutions, merchants and consumers. We will consider whether the Subcommittee should pursue Check 21 related projects, such as consumer education materials.
Both open and closed system gift cards continue to grow in popularity and to attract increasing attention in the legislative, regulatory and judicial arenas. EFS Subcommittee members Judith Rinearson and Chris Woods just published an article on the merchant perspective on gift cards titled “Beware Strangers Bearing Gift Cards” in the November/December issue of the Business Law Today [No Link Available Yet]. Judie will discuss recent developments in this area.
Stored Value Card Regulation
A major development in the federal regulation of stored value cards is pending with proposed regulations issued by two federal banking regulatory agencies. We will consider the FDIC’s proposal to clarify the deposit insurance treatment of stored value cards as well as the Federal Reserve Board’s proposal to apply Regulation E to payroll cards. We will also discuss the OCC’s guidance on payroll cards.
ledigro <@> ffhsj.com
Friday, January 21, 2005
Several of us were planning to bring our own Access Points, but Jim Frey of the ABA (our technology buddy) has agreed to bring ABA equipment and help us get things running smoothly. We'll be there early Friday morning to set things up. I'm sure there'll be a glitch or two, so be patient if the network isn't up and running right away.
Thanks to both Mike Fleming and Jim Frey for all their hard work. Thanks also to the Stanford IT guys who made it happen.
Thursday, January 13, 2005
Palo Alto, Ca
The Winter Working Meeting offers a wonderful opportunity to network with Committee colleagues and industry leaders as we work towards the common goal of developing sound strategies and policies relating to Cyberspace Law. The Winter Working Meeting is a must-attend experience. We especially encourage everyone who has joined the Cyberspace Law Committee this year to attend the Winter Working Meeting. For a current list of Committee projects and leadership, please visit the Committee web page at http://maestro.abanet.org/trk/click?ref=zpqri74vj_0-cbx328cx1204. You should feel free to contact project leaders in advance of the Winter Working Meeting with any questions you may have. We will be circulating an agenda for the Winter Working Meeting shortly. If you have not already done so, I also encourage you to register for LawHub, a collaboration space for the Committee projects. Visit LawHub at http://lawplace.metadot.com/metadot/index.pl.
Welcome Letter ** Hotel Information ** On-Line Registration (Members Only) Registration Form ** ABA Travel Directions to Hotel **
(**Require Adobe Acrobat ® to view.) I look forward to seeing you at Stanford in January.
Vince Polley, Chair
Friday, January 07, 2005
More information about the Open Group meeting follows:
January 24-28, 2005
Hyatt at Fisherman's Wharf
San Francisco, CA
• Keynote Speaker: Jamie Lewis, CEO and Research Chair, Burton Group
• Dr. Gene Schultz, Principal Engineer, Lawrence Berkeley National Laboratory
• Justin Taylor, Chief Strategist, Digital Identity, Office of the CTO, Novell Inc.
• Steve Neville, Senior Manager Identity Management, Entrust
Identity management is a convergence of technology and business processes. There is no single approach to identity management as the strategy must reflect specific requirements within the business and technology context of each organization. Therefore, it is critical that enterprises take an IT enterprise architecture approach to addressing their need for identity management.
The Open Group is the leading consortium for architecture development methodology and is developing an extensive standards information base, technical reference model and resource base for IT enterprise architects to use as reference material. The information being developed is not only of benefit to IT enterprise architects but also to managers responsible for directing vendors engaged in identity management projects, to ensure an open-systems based solution which will avoid lock-in and unnecessary complexity.
The Open Group conference will spotlight the progress being made on enabling interoperable identity management solutions. The conference will provide valuable information on the current thinking in identity management (business value, security & technical perspectives) and will look at the roadmap for resolving issues:
• Architecting an identity management framework.
• The business requirement for identity, authentication and assurance.
• Progressing standards for identity management.
• Controlling the risk and securing your intellectual property.
For more details, please visit their conference website at http://www.opengroup.org/san-francisco2005/
If you have any questions, do not hesitate to contact me.
Candace M. Jones
Hahn Loeser & Parks LLP
3300 BP Tower
200 Public Square
Cleveland, OH 44114
Stay tuned and check back regularly.