ETech: Laws and Emerging Technology

The Emerging Tech conference 2003 was kicked off by a day of tutorials which introduce the key concepts covered in the conference. I picked the Laws and Emerging Technology Tutorialpresented by my personal hero Fred von Lohmann and by Rajiv Patel.

Jamming P2P Networks

The first quarter of the tutorial covered the basic copyright issues that Fred had covered in previous conferences. Most of the material covered can be read in Fred's copyright white paper.

To underscore his examples of copyright infringement he outlined a lawsuit that is about to be announced: Hummer Winblad and former Napster CEO Hank Barry are being sued for secondary copyright infringement for investing into Napster.

At first glance this lawsuit looks ludicrous, but Fred outlined on what basis H&W and Hank Barry can be sued as vicarious infringers:

• There was direct infringement (of course)
• They had control over their users (Napster kicked people who violates the user agreement off the network)
• They had financial benefit, since they were shareholders in the company. (financial benefit includes tons of visitors coming a traffic site that contains a paid banner ad, as the Napster site did).

Given the outline of the law for vicarious infringers, this lawsuit is not as silly as it first seems.

Jamming web services

Fred outlined the common law concept of Trespass to Chattels which is now being used by companies to protect themselves from aggressive screen scrapers and users who use web services not in accordance with use policies. The legal concept of trespass to Chattles is the idea that one company can stop another company from meddling with their stuff, if they can show that some damage was caused. Putting this into everyday terms, Fred says: "Petting your neighbor's dog is not tresspass to Chattel, kicking the dog is tresspass to Chattel."

BiddersEdge was the prime example here -- BiddersEdge screen scaped the EBay website for pertinent auction information that they aggregated on their own site. EBay told them to stop and even blocked the BiddersEdge IP address, but BiddersEdge persisted. Finally EBay sued BiddersEdge on tresspass to chattel, citing EBays' degraded site performance due to BiddersEdge spidering, and the work that was required to block BiddersEdge. And EBay won an injunction against BiddersEdge.

The important note here is that at least $5000 of damage needs to be caused before someone can be sued under the trespass to Chattel law.

Jamming anything with a handshake

The Digital Millenium Copyright Act (DMCA) basically states two things:

• It is illegal for a person/campany to cirmcumvent technical protection measures, and
• It is illegal to traffic in devices/tools that circumvent protection measures

The best example for how the DMCA affected strange and bizzare areas of technology, Fred outlined the Lexmark v. DCC case, where Lexmark sued DCC for copyright infringement. Apparently Lexmark embedds a depleted flag into each printer cartridge, and when the printer cartridge runs low on ink, the depleted flag in the cartridge gets set. If the user has a depleted cartridge refilled and reinserted into the printer, the printer will refuse to print since the cartridge is marked as depleted.

To get around this, DCC started replacing the chips with fresh new chips that didn't have their depleted flag set. And by doing this they committed a copyright violation. Huh? Copyright violation? It turns out that the Lexmark folks had the lawyers involved from day one and they in turn got the engineers to design the print heads so that the print head would actually download required firmware in order to start printing. By inserting a DCC cartridge, proprietary code from the printer was copied onto a non-Lexmark component, thus creating a copyright violation. Lexmark was granted an injunction against DCC creating printer cartridges for Lexmark printers.

Whacky, but true.

For lots more info on the DMCA and all the crap that it has spawned, check out the EFF's DMCA and its unintended consequences.

This covers Fred's portion of the talk -- I'll try and blog about Rajiv's patent portion later...

Reminder: If you're at the Emerging Tech conference this week, please take a moment to fill out the groovy new online evaluation forms, to help O'Reilly make the conference even better. If that is possible. :-)

How much do you hate the DMCA??