What it's Really All About...

So, despite all of the time we spend convincing our bosses and spouses that we're working on this cyberlaw stuff because it has deep and overarching meaning for the future of the world, we all know better, right?

It's because we get to hang out on the Web long enough to eventually find out how to turn metal parts out of old floppy disks into models of the Starship Enterprise.

I'll expect to see at least 50 of these when we meet in Little Rock. (Be careful -- Sharp edges! And, from the wiki -- "Warning: Do not attempt to place your new model into a floppy disk drive.")

[props to Lifehacker]

Schneier Revisits Vendor Liability as The Cure to Bad Software

Bruce Schneier, long a favorite of many of us, has posted an essay on his blog that revisits his long-standing position that one reason software continues to be so bad is that vendors continue get away with walking away from responsibility for their actions. This time, he puts it in terms we may remember from freshman economics:

[W]hat the vendors do not look at is the total costs of insecure software; they only look at what insecure software costs them. And because of that, they miss a lot of the costs: all the money we, the software product buyers, are spending on security. In economics, this is known as an externality: the cost of a decision that is borne by people other than those taking the decision.

I was reminded yet again today of those externalities when I opened my (snail) mail to news from my bank that my debit card was about to be replaced (again for the 2nd time in a year!) because the cardholder association had alerted the bank that an un-named retailer had been hacked and our card was one of the victims. "Oh, and by the way, be sure to look carefully to see if you're card has any unusual charges on it."

Not only is the software vendor who put out junk that was so easily hackable going to get out of paying me for my own costs and added risks, but the retailer who chose to buy that junk is probably going to suffer little but a slap on the hand from the cardholder association. Our bank points out that it will not be informed which retailer managed to blow it this time because of confidentiality rules imposed by the cardholder association. My wife pointed out that if she knew which store had blown it this time she would be sure to take her business elsewhere -- Hit 'em where it hurts.

Business Section Spring Meeting -- Early Bird Registration Closes on Friday Jan 19!

If you are planning to be at our Washington DC meetings this March, the Early Bird Registration deadline is Friday January 19. Go here to register!

(That's not the last date to register - Just to get the cheaper price! You'll still be welcome if you sign up after the 19th of course.)

Smokers Alert for Little Rock

As have many other states, Arkansas has passed its own Clean Indoor Air Act. You'll need to be outside to smoke, or in a 'bar' -- Which doesn't include most restaurants. I'm sure you'll find details once on the ground, but you are hereby warned.

Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed

In a rather interesting story, it turns out Eli Lilly, some lawyers, a wiki, and its contributors are having a bit of fun with freedom of the press and prior restraint. Apparently, some documents under seal were subpoenaed, found their way onto a few web sites and then onto a wiki. The Judge has issued a rather expansive order demanding that the distribution stop and that copies be pulled back in.

There's a showdown in federal court on this issue this week.

Here's a link to the web site of the lawyer who apparently managed to "free" the documents.

Here's a link to a story on the New York Times web site.

And finally, here's a link to a blog maintained by a law professor that refers to this issue. I borrowed the very imaginative title of this post from his site.

Whatever your thoughts about the merits of the underlying dispute, this case is a good lesson in how futile it may be in today's hyperconnected world to enforce protective orders, or at least to clean up after documents are released into the wild.

Business Blogging Article Published

Our Committee's own John Ottaviani, Prof. John Bagby and Kristie Prinz have been published in the new issue of Business Law Today. Their article, entitled When a Business Begins a Blog--It's easy, but is it safe?, addresses the phenomenon of companies starting their own blogs for marketing purposes. ABA Business Section members can click on the preceding link and read away.

Given this and the Kahana/Bowles article published in the same issue of BLT, the Cyberspace Law Committee continues its run as one of the most-published entities within the Section of Business Law (if not the whole ABA!).

Congratulations, and a big thanks, to all of our newly published authors.

And, if you are in the committee and want to be the next one to gather kudos about this, be sure to get in touch with our committee's Publications Chair Prof. Juliet Moringiello -- She has all of the details, including word on the new short-format articles (600 or so words) that the magazine is constantly looking to receive.

Arrivals and Departures

To help facilitate ride sharing, and the reconnection of old friends, I thought I'd post arrival and departure times that I'm aware of. If you have additional times, put them in a comment below, and I'll update the list (until I get overwhelmed and give up).

In deference to Roland, all times are given military style. Of course, all times here are local time in Little Rock (Central Standard Time).


ARRIVALS

Thursday

1200-1400

1400-1600

• Michael Fleming
• Michael McGuire (Yes, Believe it or not, I'm coming)
• Chris Kunz
• Eran Kahana
• Lisa Lifshitz
• John Ottaviani
• Bill Denny
• David Satola
• Steve Middlebrook

1600-1800

• Vince Polley

1800-2000

2000-2200

• Kristine Dorrain
• Candace Jones

2200-0000

• Mattias Hallendorff
• John Gregory

Friday

0600-0800

0800-1000

DEPARTURES

Saturday

1200-1400

1400-1600

• Lisa Lifshitz
• John Ottaviani
• David Satola

1600-1800

• Candace Jones
• Bill Denny
• Steve Middlebrook

1800-2000

• Chris Kunz
• Vince Polley

2000-0000

Sunday

0600-0800

• Kristine Dorrain
• Eran Kahana

0800-1000

1000-1200

1200-1500

• Michael Fleming

1500-1800

• John Gregory

Little Rock -- Transportation Concerns

Some committee members have been asking if they should rent a car, depend on taxis, and so forth during the Little Rock meeting.

The Doubletree Inn is about 7 miles from the airport. The hotel's web site suggests you can get a cab for $14, but the hotel also has a courtesy shuttle between the airport and the hotel (and presumably back again!). If interested in the shuttle bus, call the hotel at 501-372-4371.

If you do choose to rent a car, the hotel has free parking for registered guests.

For transportation within the downtown environs, our host Elizabeth Bowles recommends use of the trolley system. It runs from about 11 AM until midnight (5 PM closing on Sunday), and costs 50 cents a trip. We will all be likely using the trolley when we are heading over to the Clinton Library on Friday night. It would seem likely that most of our group socializing over the weekend will be either walking distance from our hotel and/or trolley distance.

(Click on the map for a larger version.)

If your plans were to do any serious touring outside of the downtown area, a rental car is definitely called for.

Creative Commons Tool to Terminate Transfers of Copyright

Here is an interesting post from the Creative Commons Weblog. They have created a tool to allow creators a way to exploit the 35 year limit in the Copyright Act on certain transfers of copyright.

Here's the introduction to the Blog posting:

Creative Commons is excited to launch a beta version of its “Returning Authors Rights: Termination of Transfer” tool. The tool has been included in ccLabs — CC’s platform for demoing new tech tools. It’s a beta demo so it doesn’t produce any useable results at this stage. We have launched it to get your feedback.

Briefly, the U.S. Copyright Act gives creators a mechanism by which they can reclaim rights that they sold or licensed away many years ago. Often artists sign away their rights at the start of their careers when they lack sophisticated negotiating experience, access to good legal advice or any knowledge of the true value of their work so they face an unequal bargaining situation. The “termination of transfer” provisions are intended to give artists a way to rebalance the bargain, giving them a “second bite of the apple.” By allowing artists to reclaim their rights, the U.S. Congress hoped that authors could renegotiate old deals or negotiate new deals on stronger footing (and hopefully with greater remuneration too!!). A longer explanation of the purpose of the “termination of transfer” provisions is set out in this FAQ.

And here's the link to a very well organized FAQ on the provision of the Copyright Act and the tool: http://labs.creativecommons.org/termination/faq.php

Sony Settles DRM Class Action in 40 States & DC

Knowledgeable Cyberspace Law Committee members will recall that our own Eran Kahana presented a great 'Hot Topics' discussion at last Spring's Business Law Section Spring Meeting in Tampa, Florida regarding the Sony DRM fiasco. For Section members, you can grab a copy of the materials from that presentation here. Eran and his fellow member Elizabeth Bowles are now slated for publication in a future published in the current issue of the Section's monthly Business Law Today, discussing this matter with a bit more hindsight, and focusing on how businesses might avoid stepping into such public relations nightmares by being a bit less cavalier about use of electronic contracting but rather being a bit more willing to open up to the consumers who are being impacted.

But, what about the 'rest of the story' for Sony?

On December 21, 2006, forty states and the District of Columbia settled with Sony BMG Music Entertainment ("Sony") regarding the anti-copying software which was installed allegedly without consumer knowledge or agreement via music compact discs distributed in 2005. On December 21, Sony entered into an Assurance of Voluntary Compliance or Discontinuance and agreed to pay $4.25 million to the states, and also to pay up to $175 per consumer who incurred damage while trying to uninstall the software.

Sony has also agreed that it will not distribute music CDs with DRM software without first going through a series of corporate reforms, and that it will replace all of the affected CDs at no charge. I note that Sony has gone to great lengths to publish a 3rd party's audit report, which states the auditor's opinion that Sony never took advantage of any access it might have had to individual's personal information by way of the DRM software. (Personal identity information might have been the lurking issue underneath all of the discussions about people's computers getting trashed by the software that was getting the major press.)

Maybe this will mean a great deal for those of us who were ultimately concerned about the sanctity of our own computers, as well as the use of electronic contracting techniques to 'sneak' unexpected terms by unsuspecting consumers. In the end, those are the issues that should have mattered through this whole discussion.

But, one sitting above the fray might suspect that the public outcry was really less about computer sanctity and the majesty of knowing-contract, and really just another public protest against the whole concept of DRM. In that regard, the victory here is short-lived and rather meaningless. As I stare right now at my own iPod, of which about 25% is filled with tunes I downloaded off of Apple's store, I realize that the battle over copy protection is being waged (and likely won) through less obnoxious means than secretive software that takes over my computer's root functions. (And, before you ask—The other 75% are copies from my own purchased CDs—What do you take me for?)

(Fleming's aside: If you still believe regular folks were really up in arms over the 'sanctity of the computer' instead of just protesting copy-protection, I'd suggest that all of us tech-savvy readers, of which I suspect most of you reading this might be, go back and look carefully at your Uncle Alfred's vintage 1999 Windows ME machine, which he's just happy with using every day for e-mail and the occasional Web surf, particularly since he found all of those nice smiley-faced icons for his mouse that that one Web site was offering for free one day last year... Same goes for your 15 year old niece's machine that you get called about every few months because her home page keeps changing to some oddball search engine without warning instead of her boyfriend's mySpace page. You guys with me now? OK.)

Information on the Sony settlement is available here. For the time being I have posted a copy of the Assurance document here. (Given very limited space, I won't leave that document up for more than a couple of weeks, so get your copy soon!).

(Irony time: One of the 10 states that had not settled with Sony as of December 21 was my own home state of Minnesota—The company that is processing the consumer claims for the settlement is located in (you guessed it) Minnesota. What does that say about us? Anyway, I can't find any resource to find out which other states might have opted in since December 21.)

(UPDATE: I should have noted that California and Texas also entered into their own settlement with Sony apart from this 40 state thing. I have not had time to peruse whether the $175 to consumer part will apply to Californians and Texans as well. New York is apparently part of the 40 state thing, even though it had an earlier settlement with Sony from December, 2005.)

(Another aside: Is there any doubt that keyword advertising has come of age? Sony was obligated to publicize this settlement as follows:

SONY BMG shall continue, for at least 12 months from the date of this Assurance, its program of using “keyword buys” ” and “bannering” on capable CDs to give consumers notice of the known forms of security vulnerabilities to their computers and of information consumers can obtain regarding the protection of their property. The “keyword buys” and “bannering” shall also disclose to consumers any known loss of functionality that can occur following use of XCP or Media Max CDs, including, but not limited to, the disabling of a CD-ROM drive. SONY BMG shall consider in good faith any suggestions the States may offer concerning possible adjustments to the specific terms of the keyword buys program and the language displayed to consumers in connection with the relevant links and landing pages. SONY BMG shall adopt procedures to monitor and ensure that such keyword buys result in consumers receiving a Clear and Conspicuous link on the first page of returned results. The return result shall provide a warning of the security vulnerabilities and direct consumers to additional information on XCP and MediaMax patching and removal. SONY BMG shall adopt procedures to monitor and ensure that banner ads function properly and provide consumers with a Clear and Conspicuous warning of known forms of security vulnerabilities and the website address to obtain additional information on XCP and MediaMax patching and removal.

So, that means you now get this when you search for SONY DRM on Google (click to see a bit bigger):


Surely this is the coming of age for keyword advertising, no?