Don't forget that the hotel block is officially out of reach after January 1 2007, so if you are reading this prior to that date, get on over to here!
(Note that I say "officially" -- Our members have a long history of sweet-talking hotels into extending the official time windows. However, your mileage may vary, no warranties express or implied, use at your own risk, and we'll leave the lights on (in case you get stuck at the Motel 6).)
(NOTE FROM THE OTHER SIDE OF TIME: It's now January 3. Anybody who gets a favorable response from the hotel regarding 'late' reservations, could you please file a comment below for all of us to see? Thanks!)
If you have not yet registered for the meeting, but sure to head now to the meeting's home page.
Saturday, December 30, 2006
Access to Source Code Denied
In a recent case in Talahassee, Florida, a local judge ruled that a candidate who lost by only 369 votes can't get access to the source code for the voting machines to test out her theory that flaws in the software resulted in underreporting of votes for her. According to the news report, the court held that the candidates conjecture regarding the supposed flaws was not sufficient to trump the trade secret rights of the company that provided the voting machines.
If I find a copy of the judge's actual opinion, I'll post it as a follow up.
Consider whether this type of thinking will prevail in a contract dispute where one party seeks access to "black box" components of a system that underlie a disputed online transaction.
If I find a copy of the judge's actual opinion, I'll post it as a follow up.
Consider whether this type of thinking will prevail in a contract dispute where one party seeks access to "black box" components of a system that underlie a disputed online transaction.
Friday, December 22, 2006
Even Criminals Should be Careful about Authentication
Here in Cyberspace-law-land, we've long been noting that lack of a true purely electronic method authentication is the big thing that prevents e-commerce from making the leap into the big time. (Yes, you can buy plenty of books online, but nobody has been willing to sell you a house on a transaction that is totally end-to-end online -- You still need to see somebody offline.) There is still some risk that the person you are dealing with is not who they claim to be. If one is vending a low-cost items like books, maybe the risk is sufferable. If one has backup from another independent system like a credit card system, maybe the risk is mitigated. But, if one is doing high-value transactions with a purely electronic communication, from start to finish, authentication is still a serious isue.
Well, it seems you can't even solicit somebody to do a crime without running into potential authentication problems. On an e-mail exchange posted on the site http://attrition.org/, a couple of guys apparently answered a widely disseminated request from somebody who was allegedly soliciting for someone to engage in potentially criminal enterprises (i.e., entering without authority into the systems of the solicitor's alma mater to change his Grade Point Average). The guys who took up the call were spoofing the solicitor -- let's just say that hilarity ensued. (It almost reminded me of the elaborate e-mail chains the infamous Nigerian spammers would start once they might have started to reel in a victim...)
To put it mildly, when you get to the part where the spoofers ask the solicitor for pictures of the pigeons on his college campus to prove that he's not an FBI agent, you will probably be spitting your lunch all over the table. (Aim away from the computer screen when you do that. Trust me on that one.)
Notes --
Well, it seems you can't even solicit somebody to do a crime without running into potential authentication problems. On an e-mail exchange posted on the site http://attrition.org/, a couple of guys apparently answered a widely disseminated request from somebody who was allegedly soliciting for someone to engage in potentially criminal enterprises (i.e., entering without authority into the systems of the solicitor's alma mater to change his Grade Point Average). The guys who took up the call were spoofing the solicitor -- let's just say that hilarity ensued. (It almost reminded me of the elaborate e-mail chains the infamous Nigerian spammers would start once they might have started to reel in a victim...)
To put it mildly, when you get to the part where the spoofers ask the solicitor for pictures of the pigeons on his college campus to prove that he's not an FBI agent, you will probably be spitting your lunch all over the table. (Aim away from the computer screen when you do that. Trust me on that one.)
Notes --
- All people are innocent before the law until found guilty -- Even on this blog.
- There is a background story on this that involves U.S. politics -- Many of you might have already gotten wind of this story because of that aspect. This blog has no dog in that hunt... We're all about the cyberspace part.
- If you do go to the actual e-mail exchange posted at http://www.attrition.org/postal/z/033/0871.html, it contains a few choice words that most of us would not want to say out loud in front of our grandmothers. Press the link at your own risk. There's a less naughty-word laden report on the story here if you wish. And, props to Talking Point Memo for originally pointing out the story to me.
ANYWAY -- I hope each of you has a happy holiday season, and we look forward to seeing many of our readers at upcoming Cyberspace Law Committee events during 2007!
Thursday, December 14, 2006
Ken Adams on Web Searching for Contracts
Ken Adams, proprietor of the always interesting AdamsDrafting blog and author of the best-selling ABA book A Manual of Style for Contract Drafting, had a post this morning on his blog regarding the use of EDGAR as a research tool to look at old contracts that had been filed as part of SEC filings. The Cyberspace hook for us today is the commentary on how there is a proprietary Web-based service out there that will help one to index the old contracts and find ones that might be of interest. Ken's sense is that there are many other ways to use the Web to access the same information (for example, the use of Lexis and/or Westlaw to search EDGAR filings that are under Exhibit 10). Ken also notes his skepticism on the quality of the work one might find in SEC filings -- I'll let you go read the particular choice phrase he applied to the contracts on EDGAR (this is a family blog after all...).
My only other thing to add is that in my particular practice, involving a great deal of day-to-day contracting for technology licensing and purchasing, the times I've been able to find useful work on EDGAR is almost too small to count. The EDGAR system is potentially useful if one is interested in contracts that publicly-held companies might do that rise to a certain level of materiality--Software licenses rarely fall into that bucket for either the licensor or the licensee. I've no doubt that there are exceptions to that, but combined with the fact that I think any of us who read this blog are more than capable of running rings around what we might find on EDGAR, my suggestion is to stick to our own form libraries and use our own inherent skills rather than relying on some other person's randomly-selected work.
ASIDE: The other Cyberspace angle -- Ken Adams will be joining a panel of lawyers from this Committee at the ABA Business Section's Spring Meeting this March in Washington DC. The pre-meeting CLE programs put on for the Section's Young Lawyer Forum are fantastic, and that's not just because I will be speaking for one of them! We hope to see you there.
My only other thing to add is that in my particular practice, involving a great deal of day-to-day contracting for technology licensing and purchasing, the times I've been able to find useful work on EDGAR is almost too small to count. The EDGAR system is potentially useful if one is interested in contracts that publicly-held companies might do that rise to a certain level of materiality--Software licenses rarely fall into that bucket for either the licensor or the licensee. I've no doubt that there are exceptions to that, but combined with the fact that I think any of us who read this blog are more than capable of running rings around what we might find on EDGAR, my suggestion is to stick to our own form libraries and use our own inherent skills rather than relying on some other person's randomly-selected work.
ASIDE: The other Cyberspace angle -- Ken Adams will be joining a panel of lawyers from this Committee at the ABA Business Section's Spring Meeting this March in Washington DC. The pre-meeting CLE programs put on for the Section's Young Lawyer Forum are fantastic, and that's not just because I will be speaking for one of them! We hope to see you there.
Tuesday, December 05, 2006
Remotely Eavesdropping on Cell Phone Microphones
A cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone.
read more | digg story
FOLLOWUP THOUGHTS (Jan 4, 2007):
I can’t get paranoid about this one. It seems to me that if the bug is obtained through the auspices of a proper (4th Amendment compliant, probable cause, yadda yadda yadda) court order, it’s not all that different than any other form of bug. We can be paranoid about the cops and courts as a general rule (and should be…), but the means they use to exercise their court orders is not all that much more scary.
I couldn’t tell (and CNET obviously can’t from what I read) if the bug is one that directly transmits a signal to a receiver operated by the police, or if it transmits something via the cell network. Legally it should not be all that much different if there's been a proper court order, although you’d have to rope in the cell provider if the latter.
Technically it is interesting in that the only radio that should be in your typical cell phone is the radio that transmits to the cell network. (Blue tooth, found in an increasing number of handsets is, of course, a wild card in all of this – Let’s set that one aside for the moment though.) If we’ve got the bug set up as a purely software bug that infects the phone and has it transmitting what’s passing through the microphone over some sort of ‘radio’ then it must be going over the cell-transmission radio – And, that seems difficult to conceive other than something that would require the cooperation of the cell phone provider, since operating that radio without interacting with the cell network would be something I cannot believe would be an ‘off-the-shelf’ capability of the phone handset. If that’s the case then I’m less concerned again about non-legal hackers because it seems hard to believe that the cell networks would volunteer to allow a hacker to use the network! (It also suggests that this technique shouldn’t work against somebody sitting on an airplane, unless the FBI is suggesting that the FAA’s prohibition on cell phone use is not really a safety concern for all on the plane...)
If, as the BBC article mentioned in the CNET article linked above suggests, the cell network radio is hacked, via some kind of Malware that is sent electronically to the victim’s phone, to stay in transmit mode even where the phone seems to be turned off (or the radio has been turned off, as I can supposedly do with my BlackBerry), and even if ‘intelligence agencies’ can find ways of intercepting that signal and decode it, that would still require the spy to have physical proximity to the victim at all times (presuming the cell network isn't being used), and I find that all rather implausible as a useful source of data unless the spy is investing a LOT of money in this victim (and, if they have that much money to invest, they’d find some other way than this exploit to get what they want). We’re not going to see hackers using this tactic for random crap they might want to listen to while your talking to your best friend at the local coffee shop. (And, the cell providers would quickly come up with anti-spyware tactics for their phones if the exploit got out beyond this nefarious ‘intelligence community,’ so any win by a hacker would be short-lived at best.)
Apart from the radio that is used for purposes of the cell network, the only other ‘radio’ in a typical cell phone (off the shelf) is the Bluetooth. That might be an interesting hack (and the subject of multiple discussions already). Still, it seems hard to believe that there would be a hack that might alter the phone to NOT turn off the Bluetooth (and/or the phone itself) when I thought I’d turned it off – There would be a hell of a lot of software necessary to do that, and it would be so handset specific that, again, the investment for any one particular victim would prevent the odd private citizen hacker from taking advantage of it – We don’t have the single-source problem for cell phone operating software that we have for PCs. (I do work for that industry, and actually work on licenses for cell phone operating system software, so I speak from knowledge in that regard.) Also, since the off-the-shelf Bluetooth system in my phone does not use the microphone on the phone handset itself, but rather the microphone in my earset, it would require an even more incredible hack to get the handset to use the Bluetooth transmitter for such a non-standard function as to transmit the sounds on the microphone to a surreptitious Bluetooth listener, and to do so while also allowing the spy to circumvent whatever encryption is on the Bluetooth transmitter, and probably to do so as well while still allowing the Bluetooth transmitter to be used simultaneously for its intended purposes since otherwise one would tip off the victim of the bug. Finally, Bluetooth is even more susceptible to the need to be proximate to the victim -- That radio will reliably transmit only a few hundred feed through clean space. Again, it might be plausible for the 'intelligence community' to invest in human resources to follow somebody around who is a high-value target, but that target would be gotten one way or the other if somebody was really interested, that target would probably know well enough to take out the battery of his phone, and the rest of us are perfectly safe from the pimple-faced script kiddie.
Finally, if all that’s involved in the above is a physical bug snuck into the cell phone itself, then those paranoid executives who remove their batteries are missing the boat. And, pimple-faced kids sitting in coffee shops are still at a loss when it comes to physical invasions of people’s personal property (or I’m not all that worried about the few who would try such a thing). Regardless, the addition of using a cell phone (as opposed to slipping a bug into the back of my jacket collar) to the mix doesn’t change anything where you’ve got somebody who’s willing to commit a criminal breach of my personal effects in order to plant his bug.
In other words – I’m kind of skeptical about all of this.
But, it all leads to finding stuff on the BBC article cited by CNET, such as this actual living example of a Cone of Silence. Where’s Maxwell Smart when you need him? (If you read the BBC article, it really seems poorly thought out – For example, they find ‘experts’ who claim that a physical bug wouldn’t work since the battery would wear out, but who’s to say the bug wouldn’t be set up to use the cell phone’s own battery (duh…). And, I did check the dateline of the article – It’s not April 1, but maybe it should have been.)
read more | digg story
FOLLOWUP THOUGHTS (Jan 4, 2007):
I can’t get paranoid about this one. It seems to me that if the bug is obtained through the auspices of a proper (4th Amendment compliant, probable cause, yadda yadda yadda) court order, it’s not all that different than any other form of bug. We can be paranoid about the cops and courts as a general rule (and should be…), but the means they use to exercise their court orders is not all that much more scary.
I couldn’t tell (and CNET obviously can’t from what I read) if the bug is one that directly transmits a signal to a receiver operated by the police, or if it transmits something via the cell network. Legally it should not be all that much different if there's been a proper court order, although you’d have to rope in the cell provider if the latter.
Technically it is interesting in that the only radio that should be in your typical cell phone is the radio that transmits to the cell network. (Blue tooth, found in an increasing number of handsets is, of course, a wild card in all of this – Let’s set that one aside for the moment though.) If we’ve got the bug set up as a purely software bug that infects the phone and has it transmitting what’s passing through the microphone over some sort of ‘radio’ then it must be going over the cell-transmission radio – And, that seems difficult to conceive other than something that would require the cooperation of the cell phone provider, since operating that radio without interacting with the cell network would be something I cannot believe would be an ‘off-the-shelf’ capability of the phone handset. If that’s the case then I’m less concerned again about non-legal hackers because it seems hard to believe that the cell networks would volunteer to allow a hacker to use the network! (It also suggests that this technique shouldn’t work against somebody sitting on an airplane, unless the FBI is suggesting that the FAA’s prohibition on cell phone use is not really a safety concern for all on the plane...)
If, as the BBC article mentioned in the CNET article linked above suggests, the cell network radio is hacked, via some kind of Malware that is sent electronically to the victim’s phone, to stay in transmit mode even where the phone seems to be turned off (or the radio has been turned off, as I can supposedly do with my BlackBerry), and even if ‘intelligence agencies’ can find ways of intercepting that signal and decode it, that would still require the spy to have physical proximity to the victim at all times (presuming the cell network isn't being used), and I find that all rather implausible as a useful source of data unless the spy is investing a LOT of money in this victim (and, if they have that much money to invest, they’d find some other way than this exploit to get what they want). We’re not going to see hackers using this tactic for random crap they might want to listen to while your talking to your best friend at the local coffee shop. (And, the cell providers would quickly come up with anti-spyware tactics for their phones if the exploit got out beyond this nefarious ‘intelligence community,’ so any win by a hacker would be short-lived at best.)
Apart from the radio that is used for purposes of the cell network, the only other ‘radio’ in a typical cell phone (off the shelf) is the Bluetooth. That might be an interesting hack (and the subject of multiple discussions already). Still, it seems hard to believe that there would be a hack that might alter the phone to NOT turn off the Bluetooth (and/or the phone itself) when I thought I’d turned it off – There would be a hell of a lot of software necessary to do that, and it would be so handset specific that, again, the investment for any one particular victim would prevent the odd private citizen hacker from taking advantage of it – We don’t have the single-source problem for cell phone operating software that we have for PCs. (I do work for that industry, and actually work on licenses for cell phone operating system software, so I speak from knowledge in that regard.) Also, since the off-the-shelf Bluetooth system in my phone does not use the microphone on the phone handset itself, but rather the microphone in my earset, it would require an even more incredible hack to get the handset to use the Bluetooth transmitter for such a non-standard function as to transmit the sounds on the microphone to a surreptitious Bluetooth listener, and to do so while also allowing the spy to circumvent whatever encryption is on the Bluetooth transmitter, and probably to do so as well while still allowing the Bluetooth transmitter to be used simultaneously for its intended purposes since otherwise one would tip off the victim of the bug. Finally, Bluetooth is even more susceptible to the need to be proximate to the victim -- That radio will reliably transmit only a few hundred feed through clean space. Again, it might be plausible for the 'intelligence community' to invest in human resources to follow somebody around who is a high-value target, but that target would be gotten one way or the other if somebody was really interested, that target would probably know well enough to take out the battery of his phone, and the rest of us are perfectly safe from the pimple-faced script kiddie.
Finally, if all that’s involved in the above is a physical bug snuck into the cell phone itself, then those paranoid executives who remove their batteries are missing the boat. And, pimple-faced kids sitting in coffee shops are still at a loss when it comes to physical invasions of people’s personal property (or I’m not all that worried about the few who would try such a thing). Regardless, the addition of using a cell phone (as opposed to slipping a bug into the back of my jacket collar) to the mix doesn’t change anything where you’ve got somebody who’s willing to commit a criminal breach of my personal effects in order to plant his bug.
In other words – I’m kind of skeptical about all of this.
But, it all leads to finding stuff on the BBC article cited by CNET, such as this actual living example of a Cone of Silence. Where’s Maxwell Smart when you need him? (If you read the BBC article, it really seems poorly thought out – For example, they find ‘experts’ who claim that a physical bug wouldn’t work since the battery would wear out, but who’s to say the bug wouldn’t be set up to use the cell phone’s own battery (duh…). And, I did check the dateline of the article – It’s not April 1, but maybe it should have been.)
Monday, November 27, 2006
Cyberspace Law: We're More than Just Website Advisors!
From today's WSJ Law Blog, on the pending changes to the Federal Rules of Civil Procedure regarding electronic evidence:
Full posting here.
Gosh -- Doesn't that sound like what the Cyberspace Committee has been teaching its members since, oh, let's see--ABOUT A DECADE?
Folks from this committee who are in private practice: If you have not already made your presence and depth of knowledge known to your own firm's litigators, you are missing a great opportunity. This is one of the better 'convergence' moments in our history, so go take advantage of it!
Alvin Lindsay, a partner with Hogan & Hartson, laid out for the WSJ the implications of the new rules. “Lawyers will now have to know about their clients’ computer architecture: How do they store their data? How do their computer systems operate? This is not something they teach in law school.”
Full posting here.
Gosh -- Doesn't that sound like what the Cyberspace Committee has been teaching its members since, oh, let's see--ABOUT A DECADE?
Folks from this committee who are in private practice: If you have not already made your presence and depth of knowledge known to your own firm's litigators, you are missing a great opportunity. This is one of the better 'convergence' moments in our history, so go take advantage of it!
Wednesday, November 08, 2006
News News News
November 8, 2006 -- A busy day in the news. Not that election thing silly -- In Cyberspace news!
I had a small start when reading a squib in the BNA eCommerce Reporter this morning, which discussed a New York federal trial court decision which proclaimed that a Web site is not interactive for personal jurisdiction purposes if the interactivity is merely through password-protected activity. Whoa! I thought, since that would be a major change to the Zippo standards if it were followed. However, careful reading of the squib (as opposed to just the headline...) reveals that the New York case was one regarding general jurisdiction. As any of us who walk these cyberlaw halls knows, Zippo was a specific jurisdiction case. The law as we knew it has not changed. Cite is to C.B.C. Wood Products Inc. v. LMD Integrated Logistics Serv. Inc., E.D.N.Y., No. 06-2673, 10/7/06. {Note: For those of you who aren't lawyers and have no idea what the difference is between specific versus general jurisdiction -- Well, not to be elitist on you, but that's one of those ones I couldn't begin to explain in a sentence, particularly since you need a good grounding on the concept of 'personal jurisdiction' in the first place. You can try this outline from a law school professor on the concept if you want, or this Wikipedia article. And, if you want a cyberspace law angle, read this article by another law professor.}
The Supreme Court of Kansas has taken a look at shrink-wrap licenses, and has dealt a blow against them. In Wachter Mgmt. Co. v. Dexter & Chaney Inc., Kan., No. 95,102, 10/27/06, the court looked at a software transaction that was initially done through a paper purchase order between the parties, and then was followed by the unwrapping of a shrink-wrap license by the software user. When the user ultimately decided to claim a problem, and brought a claim in his local court in Kansas, the software developer pointed to its shrink-wrap license and the venue clause therein. Most of us might have presumed that this would ultimately have favored the developer -- But, the Kansas court revived the thinking of Step-Saver Data Sys. v. Wyse Tech. Inc., 939 F. 2d 91 (3d Cir. 1991). In Step-Saver, the shrink-wrap was ignored on the basis of its being 'a proposal for additional terms' under the UCC, and hence rejectable by the other party. The court in Kansas felt that this was the case here, and refused to enforce the shrink-wrap license. (One should note that the case was a 4-3 decision, and the dissent was clearly bothered with the revival of Step-Saver.) All that said, and whether you agree with one side or the other, this leads to a PRACTICE NOTE: When counseling clients who are using the paper followed by shrink-wrap process, advise them to have an unequivocal statement in the paper that the transaction is subject to the shrink-wrap (or click-wrap, or whatever...) terms that will follow. The Kansas court seems to suggest that this would have avoided the problem, and there is no harm in adding such statements to one's paper contracts, particularly since most of our clients will still like to hold out the possibility of doing business in Kansas!
Finally, an idea that many have bounced around has been endorsed in a U.S. District Court -- Is the transfer of a domain name from one party to another an event that should be treated as a new 'registration' by the recipient? Recall that both the Anti-Cybersquatting Protection Act and the ICANN Uniform Domain Name Dispute Resolution Policy provide that the defendant's actions in registering the domain are important to the case. In many cases, the original registration of the domain was years in the past, and may have actually been done by somebody in good faith or the facts are hard to prove from that ancient time. But, one might have easy facts to show that the subsequent registrant took and uses the domain in bad faith. Some of us wondered if we could simply look to the most recent registrant for our analysis.
In Christensen Firm v. Chameleon Data Corp., W.D. Wash., No. C06-337Z, 11/1/06, the court agreed under the ACPA that each act of transfer was a new 'registration' for the purposes of ACPA analysis. Thus, one need not trace the progeny of a domain back through to the first party that registered it, but only to the most recent (i.e., the one the complaint is all about). Although this is an ACPA case, the logic would seem to apply equally to a UDRP analysis, and one might at least cite this as persuasive evidence on point.
[If anybody with more time than I have wants to find public links to any of those opinions, please let me know and I shall post them. The ones I have are through a password-protected site, so they are not of much use to the rest of the world. UPDATE: I found a free link to the Wachter Mgmt case out of Kansas. Still looking for the other two...]
I had a small start when reading a squib in the BNA eCommerce Reporter this morning, which discussed a New York federal trial court decision which proclaimed that a Web site is not interactive for personal jurisdiction purposes if the interactivity is merely through password-protected activity. Whoa! I thought, since that would be a major change to the Zippo standards if it were followed. However, careful reading of the squib (as opposed to just the headline...) reveals that the New York case was one regarding general jurisdiction. As any of us who walk these cyberlaw halls knows, Zippo was a specific jurisdiction case. The law as we knew it has not changed. Cite is to C.B.C. Wood Products Inc. v. LMD Integrated Logistics Serv. Inc., E.D.N.Y., No. 06-2673, 10/7/06. {Note: For those of you who aren't lawyers and have no idea what the difference is between specific versus general jurisdiction -- Well, not to be elitist on you, but that's one of those ones I couldn't begin to explain in a sentence, particularly since you need a good grounding on the concept of 'personal jurisdiction' in the first place. You can try this outline from a law school professor on the concept if you want, or this Wikipedia article. And, if you want a cyberspace law angle, read this article by another law professor.}
The Supreme Court of Kansas has taken a look at shrink-wrap licenses, and has dealt a blow against them. In Wachter Mgmt. Co. v. Dexter & Chaney Inc., Kan., No. 95,102, 10/27/06, the court looked at a software transaction that was initially done through a paper purchase order between the parties, and then was followed by the unwrapping of a shrink-wrap license by the software user. When the user ultimately decided to claim a problem, and brought a claim in his local court in Kansas, the software developer pointed to its shrink-wrap license and the venue clause therein. Most of us might have presumed that this would ultimately have favored the developer -- But, the Kansas court revived the thinking of Step-Saver Data Sys. v. Wyse Tech. Inc., 939 F. 2d 91 (3d Cir. 1991). In Step-Saver, the shrink-wrap was ignored on the basis of its being 'a proposal for additional terms' under the UCC, and hence rejectable by the other party. The court in Kansas felt that this was the case here, and refused to enforce the shrink-wrap license. (One should note that the case was a 4-3 decision, and the dissent was clearly bothered with the revival of Step-Saver.) All that said, and whether you agree with one side or the other, this leads to a PRACTICE NOTE: When counseling clients who are using the paper followed by shrink-wrap process, advise them to have an unequivocal statement in the paper that the transaction is subject to the shrink-wrap (or click-wrap, or whatever...) terms that will follow. The Kansas court seems to suggest that this would have avoided the problem, and there is no harm in adding such statements to one's paper contracts, particularly since most of our clients will still like to hold out the possibility of doing business in Kansas!
Finally, an idea that many have bounced around has been endorsed in a U.S. District Court -- Is the transfer of a domain name from one party to another an event that should be treated as a new 'registration' by the recipient? Recall that both the Anti-Cybersquatting Protection Act and the ICANN Uniform Domain Name Dispute Resolution Policy provide that the defendant's actions in registering the domain are important to the case. In many cases, the original registration of the domain was years in the past, and may have actually been done by somebody in good faith or the facts are hard to prove from that ancient time. But, one might have easy facts to show that the subsequent registrant took and uses the domain in bad faith. Some of us wondered if we could simply look to the most recent registrant for our analysis.
In Christensen Firm v. Chameleon Data Corp., W.D. Wash., No. C06-337Z, 11/1/06, the court agreed under the ACPA that each act of transfer was a new 'registration' for the purposes of ACPA analysis. Thus, one need not trace the progeny of a domain back through to the first party that registered it, but only to the most recent (i.e., the one the complaint is all about). Although this is an ACPA case, the logic would seem to apply equally to a UDRP analysis, and one might at least cite this as persuasive evidence on point.
[If anybody with more time than I have wants to find public links to any of those opinions, please let me know and I shall post them. The ones I have are through a password-protected site, so they are not of much use to the rest of the world. UPDATE: I found a free link to the Wachter Mgmt case out of Kansas. Still looking for the other two...]
Wednesday, November 01, 2006
Internet Governance Forum -- Our session
David Satola reports that the session at the IGF entitled 'Legal Aspects' was a big success and well attended. Kristine Dorrain suggested that interest was high amongst the panel as well as the audience and felt it could have gone on easily for another hour. Theoretically the session was recorded (audio) and will be posted on-line, but I have not found a link to such yet.
David sent over a couple of photographs from the session -- Kristine also has some and will send them along when she can.
Monday, October 30, 2006
Live Feeds from the Internet Governance Forum
Although time zone issues will probably impede many of us on this side of the world from participating live, this site:
http://igf2006.intgovforum.org/
is open for business and allows one to monitor the Internet Governance Forum taking place in Greece right now. If you register, you can monitor live feeds, read and participate in chats, and all that other good Web 2.0 stuff.
The Internet Governance Forum is the continuing discussion that arose out of the meeting in Tunisia last year, which itself was part of the World Summit on the Information Society (WSIS) set up by the UN and the ITU. Many of our members have worked to understand the original mandate of the WSIS and its ongoing efforts through IGF.
Remember, our own members David Satola and Kristine Dorrain are live and on the ground at the Athens meeting, and will be presenting to the crowd on legal issues this coming Wednesday at 9:30 AM Athens time (which is, unfortunately, about 1:30 in the morning my own time, so I regret that I'll have to read about it in the papers the next day).
UPDATE: Dave Satola reports to me that all is going well at the Summit. Still, there are some troubles to be had apparently... United Nations "Internet" Summit held sans internet
http://igf2006.intgovforum.org/
is open for business and allows one to monitor the Internet Governance Forum taking place in Greece right now. If you register, you can monitor live feeds, read and participate in chats, and all that other good Web 2.0 stuff.
The Internet Governance Forum is the continuing discussion that arose out of the meeting in Tunisia last year, which itself was part of the World Summit on the Information Society (WSIS) set up by the UN and the ITU. Many of our members have worked to understand the original mandate of the WSIS and its ongoing efforts through IGF.
Remember, our own members David Satola and Kristine Dorrain are live and on the ground at the Athens meeting, and will be presenting to the crowd on legal issues this coming Wednesday at 9:30 AM Athens time (which is, unfortunately, about 1:30 in the morning my own time, so I regret that I'll have to read about it in the papers the next day).
UPDATE: Dave Satola reports to me that all is going well at the Summit. Still, there are some troubles to be had apparently... United Nations "Internet" Summit held sans internet
Wednesday, October 18, 2006
Open Source Continues to Come of Age
cNet notes that "OpenLogic, a provider of open-source software for enterprises, is offering indemnification against legal action for companies using its code." The company does note that its indemnity no longer applies if the indemnitee has modified the code in the OpenLogic code. And, the operating system used (e.g., Linux) is not covered by the OpenLogic indemnity (although there may be policies available from insurers, such as Lloyds, to cover that). So, the end user still has some degree of patching together risk-allocation tools in order to create a reasonably protected system.
Still, the days when lawyers in the know should just instantly panic when they hear about OS in their clients' houses should be deemed as officially over. Our own committee's members recently presented a very well-received program on how to assess open source as a risk during a corporate merger transaction -- materials available here (ABA Business Law Section members only).
Like everything else we do, there is still plenty of work to do to make sure the hatches are battened down. However, the coming of age of the OS industry means that the lawyers can start to add value by pointing out the risk management tools their clients can use, and help them to negotiate or assess actual risk versus falling into abject panic.
Still, the days when lawyers in the know should just instantly panic when they hear about OS in their clients' houses should be deemed as officially over. Our own committee's members recently presented a very well-received program on how to assess open source as a risk during a corporate merger transaction -- materials available here (ABA Business Law Section members only).
Like everything else we do, there is still plenty of work to do to make sure the hatches are battened down. However, the coming of age of the OS industry means that the lawyers can start to add value by pointing out the risk management tools their clients can use, and help them to negotiate or assess actual risk versus falling into abject panic.
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