6/8/01
6/7/01 -- Edward Felten, the Princeton University professor who withdrew his paper from an academic conference after receiving a threatening letter from the RIAA has filed a declaratory judgment suit against the RIAA, the SDMI coalition, the companies who own the encryption technologies tested as part of the hackSDMI challenge, and Attorney General John Ashcroft. Felten and his fellow researchers seek a declaration that publishing their paper violates neither the civil nor the criminal provisions of the DMCA. The RIAA says that it find's Felten's decision to sue "inexplicable". Read a Declan McCullagh's story for WIRED news.
6/7/01 -- The Washington State Supreme Court has upheld the state anti-spam law, reversing a lower court opinion that had held the statute unconstitutional.
6/6/01 -- Napster announced that it had reached a deal with MusicNet, RealNetworks, Warner Music Group, Bertelsmann and EMI that will allow it to offer its paying subscribers the ability to download a limited number of major label songs in a secure format for an additional fee. The three major labels insist that they will nost actually make their recordings available until Napster has satisfied them that it is operating in a legal, non-infringing manner and has successfully deployed a accurate file identification and tracking technology. Napster's initial announcement of a July 2001 launch date for its reconfigured service seems a wee bit optimistic. Read John Borland's story for c|net.
6/5/01 -- With Napster apparently on the ropes, and MP3.com about to become a division of Vivendi Universal, Aimster appears to be everybody's favorite litigation partner. Last month, Aimster filed a declaratory judgment action against the RIAA, seeking a declaration that its file trading network is legal. The recording industry responded by suing Aimster for copyright infringement. Read John Borland's story for c|net. Reuters has posted an account of the May 31 hearing before Judge Kahn.
6/5/01 --ICANN held its Board of Directors meeting in Stockholm over the weekend. Harvard's Berkman Center has posted an archive of the meeting. Instead of making my usual snippy comments, I want to refer you to the dedicated folks at ICANNWatch, who have more than enough of them to go around.
5/30/01 -- A divided UDRP panel has ordered Aimster to transfer aimster.com to America Online. It has also ordered the transfer of any domain names incorporating "AIM" or "ICQ"
5/9/01 -- EFF has posted the transcript of last week's oral argument before the Second Circuit. Folks who attended the argument have suggested that the court found Corley an unsympathetic appellant.
5/5/01 -- Aimster, the Napster-clone that piggybacks on AOL's instant messaging service, has decided that the best defense is a good offense. The RIAA sent out another one of its threatening letters to Aimster's Internet Service Provider, demanding that Aimster block trading of RIAA member recordings within a week or else. Aimster filed a declaratory judgment suit seeking a ruling that its peer-to-peer file swapping service is legal. The RIAA has expressed surpirse and dismay that Aimster would rather litigate than resolve the issues amicably. Read Brad King's story for WIRED.
4/26/01 --Earlier this year, the Secure Digital Music Initiative attempted to prevent Princeton Professor Edward Felten from delivering an academic paper describing his work defeating the SDMI watermark in response to SDMI's public challenge, by threatening to sue him under the DMCA. The threat appears to have persuaded Felten to withdraw his paper. Felten was scheduled to deliver the paper this morning. Instead, he read a statement explaining that the authors of the paper and the institutions with which they were affiliated had reached a collective decision to pull the paper in order to avoid the litigation that SDMI had threatened. Cryptome.org has posted the paper Felten was unable to deliver, and the threatening letter that impelled him to withdraw it.
4/4/01 -- The Senate Judiciary Committee held a Hearing on "Online Entertainment: Coming Soon to a Digital Device Near You " designed to throw a scare into the music and recording industries, who obligingly announced shortly before the hearing that they were preparing to license their catalogs to one another. Napster, MP3.com, and the Consumers Union insisted that expanded or new compulsory licenses were necessary. Don Henley and Alanis Morissette complained that the recording industry treated its artists shamefully and suggested that Congress should pay more attention to performers' interests. AOL and the RIAA claimed that they would provide digital music to consumers real soon now. Tower records suggested that the recording industry's inexplicable failure to exploit the online music market might be part of a plot to run retail record stores out of business. Senator Hatch talked about his first ASCAP royalty check. Senator Leahy snapped photos. You, too, can enjoy the entire hearing by watching Cspan's streamed video archive.
4/4/01 -- WIRED's Joanna Glasner reports that US District Court Judges James Ware ordered Stephen Michael Cohen to pay $65,000,000 in damages for his misappropriation of the sex.com domain. Mr. Cohen may be somewhere in Tijuana.
3/20/01 -- The ACLU filed a lawsuit today challenging the Children's Internet Protection Act, which requires public libraries to install Internet filtering software on all of their Internet terminals. Read Lisa Bowman's story for c|net.The American Library Association filed a parallel lawsuit challenging the law in the same court. Reuters covered the ALA press conference.
3/12/01 --ICANN's Melbourne meeting has turned into a circus. The proposal to amend the NSI agreement to allow NSI to keep control of the .com registry while continuing its lucrative business as the dominant .com registrar has proved extremely unpopular with ICANN constituencies. Read Stewart Taggart's story for WIRED. ICANN Vice President, Secretary and General Counsel Louis Touton has apparently been assuring everyone that that's just too bad. Meanwhile, AP's Anick Jesdanun reports that ICANN's committee to study what to do about At Large Membership (wherein Internet users who persist are permitted to elect a minority of ICANN directors, to the chagrin of ICANN staff) has been carefully constituted to omit representation of at-large members. Harvard's Berkman Center has posted archives of the meeting thus far, and is webcasting the meeting as it happens. The folks at ICANNWatch are keeping track.
3/12/01 -- Jane Doe sued America Online claiming that a sexual predator used the service to lure her minor son, John Doe, to engage in sexual activity, and to market videotapes recording the activity. The Florida Supreme Court ruled 4-3 that section 230 of the Communications Decency Act shields AOL from any such lawsuit. Read Jackie Hallifax's story for AP. Last week, a Calfornia Court of Appeals reached the same conclusion in Kathleen R v.City of Livermore, a suit challenging a library's failure to operate content-filtering software on its Internet-connected computers.
3/7/01 -- WIRED's Declan McCullagh reports that two MIT programmers have devised a nifty little Perl program that goes like this:
$_='while(read+STDIN,$_,2048){$a=29;$b=73;$c=142;$t=255;@t=map{$_%16or$t^=$c^=(
$m=(11,10,116,100,11,122,20,100)[$_/16%8])&110;$t^=(72,@z=(64,72,$a^=12*($_%16
-2?0:$m&17)),$b^=$_%64?12:0,@z)[$_%8]}(16..271);if((@a=unx"C*",$_)[20]&48){$h
=5;$_=unxb24,join"",@b=map{xB8,unxb8,chr($_^$a[--$h+84])}@ARGV;s/...$/1$&/;$
d=unxV,xb25,$_;$e=256|(ord$b[4])<<9|ord$b[3];$d=$d>>8^($f=$t&($d>>12^$d>>4^
$d^$d/8))<<17,$e=$e>>8^($t&($g=($q=$e>>14&7^$e)^$q*8^$q<<6))<<9,$_=$t[$_]^
(($h>>=8)+=$f+(~$g&$t))for@a[128..$#a]}print+x"C*",@a}';s/x/pack+/g;eval
3/7/01 --The litigation monster burped, wiped its chops, and cast around for someone besides Napster to chomp on. Its eyes lit on an old favorite. Reuters reports that on Tuesday, shortly after MP3.com lost another round in the multiplicity of suits filed against it by copyright owners enraged at its "Beam It" service, it was sued by its liability insurer, which seeks to avoid paying up under MP3.com's liability policy.
3/21/01 -- Judge Patel's ambiguous injunction is generating precisely the sort of bickering one would expect, as each side argues that the other's compliance is defective. Napster complains that the lists of infringing material furnished by the record companies include works that the record companies don't own. The record companies concede that that may be so, but insist that the injunction nonetheless requires Napster to prevent the downloading of songs they do own, which are also on the lists. Napster's complaints about record companies' compliance with the injunction, they suggest, are a simple stalling tactic. While Napster's blocking tactics have apparently reduced downloads by 50%, the recording industry accuses it of deliberately deploying ineffective filters.
3/7/01 -- Hopping on the bandwagon, both emusic.com and the producers of last month's Grammy Awards telecast have filed copyright infringement suits against Napster. Reuters has posted reports on both the eMusic suit and the Grammy suit.
3/6/01 -- Napster's file-blocking system is up and running. The folks at Aimster have posted a handy little response.
3/6/01 -- Judge Patel has issued the modified preliminary injunction. The injunction obliges Napster to block access to infringing files identified by the plaintiffs, files likely to be infringing variants of those files, files identified by Napster in the course of regular searches it must conduct to find material likely to infringe plaintiffs' copyrights, and files that infringe recordings identified by plaintiffs in advance of their release. Napster has three business days from receipt of reasonable notice to block access to files identified in the notice. In addition, within three days of notice, Napster must search the Napster directories of all users at log on, and "prevent the downloading, uploading, transmitting or distributing of the noticed copyrighted sound recordings." Presumably, the scope of that last obligation will be the subject of ongoing dispute.
3/6/01 -- ICANN staffers are again behaving as if the fact that ICANN has a Board of Directors who are supposed to make official decisions during elaborately organized official meetings is an inconvenient technicality undeserving of serious attention. Indeed, staffers seem to have persuaded each other that the fact that ICANN has a Board of Directors is an inconvenient technicality undeserving of serious attention. In the preparations for ICANN's next official meeting -- scheduled next week in Melbourne -- staff have been notably casual in their decisions about what ought to appear on the agenda, and when the ICANN membership ought to be notified about what matters will come up. Meanwhile, the deployment of new gTLDs is behind schedule again, apparently because ICANN legal staff are determined to incorporate a variety of staff policy preferences into the contracts with the new registries. Read Michael Froomkin's critique for ICANNWatch.
In a related story, startup New.net is offering 20 new top level domains that ICANN declined to authorize. If you've always hankered after a domain name in .law (or .shop, .mp3, .inc, .sport, .kids or .xxx) you may now register yourname.law with New.net. Here's how it works: Software deployed by New.net's partners, or available for free download as a browser plug-in, routes a request for "geek.law" to New.net's DNS servers, which will resolve the domain name to "geek.law.new.net." Newnet has signed up an impressive initial roster of partners who have agreed to implement the new system, including Earthlink, Excite@home, NetZero, and MP3.com. Read Andy Patrizio's story for WIRED.
3/2/01 -- During a hearing on the scope of the revised preliminary injunction that Judge Patel will enter against Napster, Napster's counsel announced that it would launch a system to prevent downloading of thousands of recordings previously identified as infringing by the record companies and other plaintiffs, and that it expected the system to be operational over the weekend. Read Brad King's story for WIRED News.
Earlier Napster news is here.
3/1/01 -- In the beginning (well, actually, in the middle), the U.S. Department of Commerce invented ICANN, and charged it with the responsibility of introducing competition into the business of domain name registration. One of the cardinal principles of the handoff was that NSI, until that moment the sole entity in charge of .com, .org, and .net, would cease to operate as both registry and registry for the .com, .net and .org domains. NSI agreed that it would get out of the registrar business as a condition for its continuing to operate the profitable .com registry. ICANN, in its wisdom, has now agreed that NSI may continue to control the .com registry while acting as a .com registrar. In return for this beneficence, NSI will eventually surrender control of the less profitable .org registry. Read Joris Evers's story for Infoworld.
3/1/01 -- Book publishing contracts are commonly silent as to the disposition of electronic rights, a circumstance that has apparently caused publishers to believe that they have acquired them while their authors insist that they have retained them. USA Today reports that Random House has filed suit against online publisher Rosetta Books. Rosetta has licensed electronic rights from popular authors like Kurt Vonnegut, Pat Conroy and William Styron. Random House claims that the authors were not entitled to authorize Rosetta to post their books. Rosetta has retained David Boies.
2/27/01 -- The Standard's Boris Gršndahl reports that Ferraro, which markets a popular chocolate hazelnut nougat spread under the name Nutella, has successfully ousted domain name owners from gnutella.de and newtella.de on trademark infringement grounds.
2/26/01 -- You, too, can listen in to this week's arguments in US v. Microsoft. The court of appeals for the DC Circuit has announced that it will webcast oral arguments. The fun begins at 9:30 a.m. today and tomorrow. Read Stephen Labaton's story for the NY Times.
2/26/01 -- The United States has intervened in the DeCSS case, filing a brief with the 2d Circuit arguing that there's no constitutional problem with section 1201 as applied, because dissemination of dissemination of DeCSS is insufficiently expressive to warrant any first amendment protection at all. Harvard's Berkman Center has posted links to all the briefs.
2/26/01 -- Napster has filed a petition for rehearing en banc in the 9th Circuit. Meanwhile, Judge Patel has scheduled a March 2d hearing on the scope of the injunction ordered in the 9th Circuit's February 12 opinion. Both Napster and the recording industry have filed proposed injunctions. Neither party has released the text of its proposal to the press.
2/19/01 -- c|net's John Borland reports that Napster has offered the record companies suing it $1 billion over five years as license fees for music downloads. Napster and the record companies have been pursuing settlement negotiations for the past two months with the assistance of a mediator appointed by Judge Patel, but the RIAA has reportedly asked Judge Patel to halt the mediation. Napster has posted a press release describing its offer and giving details of its new business model. The RIAA has posted a response.
Earlier Napster news is here.
2/14/01 -- The Court of Appeals for the Federal Circuit has vacated the preliminary injunction in Amazon.com's patent infringment suit against barnesandnoble.com over Amazon.com's "one click" patent. Read Carol King's story for Internetnews.com.
2/14/01 -- Not to be outdone, the Senate Commerce Committee is holding a Hearing this morning "to examine the structure of Internet Corporation for Assigned Names and Numbers ... and the effort underway to expand available domain names." Cspan.org will webcast the proceddings at 9:30 am from its Congressional Hearings site, http://www.capitolhearings.org/. The first panel of witnesses should be particularly interesting. It includes two witnesses: Mike Roberts, the outgoing CEO of ICANN who reportedly favors abolishing the election of at large directors and Karl Auerbach, one of the five recently elected at large directors whose selection presumably influenced Robert's views.
2/12/01 -- The Ninth Circuit has issued its decision in the Napster case. (Another copy is here.) The unanimous panel agreed with Judge Patel (1) that individual Napster users infringe the record companies' reproduction and distribution rights, (2) that use of Napster is not fair use, (3) that section 1008 of the Audio Home Recording Act does not apply,(4) that Napster may therefore be both contributorily and vicariously liable for its users infringment, and (5) that the balance of hardships tips decidedly in the record companies favor. The panel found the scope of the injunction overbroad, however, and ordered Judge Patel to modify it to require only that Napster block access to infringing material when it is notified of the availability of that material by the record companies, and to police infringment on its own system to the limits of its current architecture.
2/12/01 -- The Privacy Coalition, an ad hoc alliance of groups interested in privacy (including EPIC, the American Association of Law Libraries, the ACLU, the Center for Media Education, Consumer Federation of America, Consumers Union, Eagle Forum (Phyllis Schlafly), the UAW, Junkbusters, Media Access Project, National Consumers League, Privacy Times, and U.S. PIRG), will hold a press conference today to announce an effort to encourage state and federal legislators to sign a "privacy pledge." Tech Law Journal is unimpressed. "The membership of the Privacy Coalition is narrow," it writes, "It is made up mostly of consumer, civil liberties, and privacy groups."
2/9/00 -- The FBI, in a move demonstrating great sensitivity to the privacy issues raised by its controverisal Carnivore, has changed the surveillance system's name to " DCS1000." Isn't that a relief? Read Erich Luening's story for c|net.
In an unrelated story, WIRED's Declan McCullagh reports that the FBI, has launched an investigation into BonsaiKitten.com, a gruesome but funny parody site launched by a pseudonymous MIT student. MIT has been served with a grand jury subpoena demanding subscriber information about the site. Apparently, the little noticed Public Law No. 106-152 criminalizes the depiction of animal cruelty.
2/9/01 -- The court of appeals for the Ninth Circuit has announced that it will issue its decision in the Napster case on Monday, February 12. Read John Borland's story for C|net.
2/6/01 -- The Telecommunications Subcommittee of the House Commerce Committee will hold a Hearing on "Is ICANN's New Generation of Internet Domain Name Selection Process Thwarting Competition?" on Thursday, Feb. 8. The Subcommittee plans to examine ICANN's recent selection of seven new gTLDs. The Hearing will be webcast live at 10:00 a.m. from the Commerce Committee website. Scheduled witnesses include Professor A Michael Froomkin, who has urged the U.S. Commerce Department to repudiate ICANN's selection process, and and Leah Gallegos, who claims longstanding prior rights in the .biz TLD. Read Jim Wagner's article for InternetNews.com.
2/9/01 Update -- Missed the Hearing in real time? The Telecomm Subscommittee has posted an audio archive. Brock Meeks covered the Hearing for MSNBC.
2/6/01 -- The proceedings of last month's Future of Music Policy summit are now online, courtesy of Webnoize.
2/6/01 -- AOL has filed a suit againt adult website operator Cyber Entertainment Network, seeking to hold it liable because its advertising affiliates are violating AOL's anti-spam policy. Read Randy Bartlett's story for Interactive week.
2/5/01 -- Juno.com, one of the remaining concerns offering free Internet service in return for your eyeballs (and the demographic information to go with them), has a new plan to boost its profitabitity. Eyeballs aren't worth as much as they used to be, now that dot-coms have discovered that even people who promise to look at ads don't click through very often, so Juno has announced that in addition to serving targeted ads to its subscribers, it would also sell eager customers the use of its subscribers' computers. The idea, apparently, is that free Juno subscribers would consent to allow the company to use their computers whenever they were idle, and would agree to keep their computers on and their connections live at all times, so that their machines could perform the tasks Juno assigned to them and then phone home with the results. Juno would then sell the use of its subscriber distributed computing network to as-yet unidentified customers in the market for virtual supercomputation. If this idea gives you the creeps, you can always pay Juno money to upgrade your service from what the company is still insisting on calling "free." Read the AP story.
1/31/01 -- The Electronic Frontier Foundation has posted its opening brief in the appeal to the Second Circuit on behalf of appellant 2600 magazine and the amicus curiae briefs of eight different supporters. Last year, a federal district court enjoined 2600 from posting or linking to this code. Several of the briefs argue that the DMCA as interpreted by Judge Kaplan, is unconstitutional. Read Declan McCullagh's story for WIRED.
1/22/01 -- To celebrate the November 2001 release of the first Harry Potter movie, Warner Brothers is biting the hands that feed it. Behemoth AOL-Time Warner has launched a crackdown on fan sites like this one and this one. Read Stephanie Grunier's and John Lippman's story for WSJ Interactive.
1/15/00 -- In September, the Secure Digital Music Initiative finally announced that it had developed an unbreakable watermarking technology as phase one in its effort to devise a leak-proof technological protection measure for music files. It then dared the hackers of the world to try to crack its system, offering a $10,000 for each successful break in. 47 people responded. In order to have their submissions reviewed, however, the SDMI consortium required applicants for the bounty to participate in a second phase of the test, and, not so incidentally, to sign a non-disclosure agreement. Princeton Professor Edward Felton declined to sign the agreement, since his purpose all along had been to publish his account of the research. As a result, SDMI refused to evaluate his hack. Some one from the SDMI consortium asked Felton in a telephone call whether he was fully aware of the anticircumvention provisions of the Digital Millennium Copyright Act. Felton and his fellow researchers consulted a lawyer, who has advised them that even though they conducted their research in response to SDMI's public challenge and never signed a non-disclosure agreement, publishing their results could subject them to criminal liability for providing a technology designed to circumvent a technological protection measure. Read Amy Harmon's story for the New York Times.
What would we do without The Register?
1/12/01 -- The FCC has signed off on the AOL-Time Warner merger, imposing additional conditions intended to encourage more nearly open-access. Read c|net's special coverage. Hours later, the affianced pair officially closed the deal. The FCC has posted its Opinion and Order here.
1/11/01 -- According to CNN's most recent numbers, a total of 50,456,159 voters voted for President George W. Bush. According to Napster's new lobbyist Manus Cooney, who spoke yesterday at the Future of Music policy summit, Napster's users currently number 51,000,000. Read Margret Johnson's coverage of the summit for InfoWorld.
1/11/01 -- This week's news is decidedly mixed. AP reports that the bankrupt Toysmart.com, which once assured its customers that their data would never be shared and then offered to sell it as an asset in bankruptcy, has agreed to destroy the database in return for a $50,000 payment from corporate parent Disney. In an unrelated story, the Department of Commerce reported that businesses have been reluctant to take advantage of the safe harbor painfully negotiated with Europe, under which U.S. businesses would promise not to share EU citizens' personal information, and Europe would agree not to complain that those promises were largely unenforceable. (Perhaps they've been waiting to see what happened to Toysmart.) Meanwhile, eBay apparently decided it would be fun to reset users' "opt out" preferences to transform them into "opt in" preferences. EBay's theory appears to have been that if the software default had required affirmative action to opt out, many of its users would not have managed to do so. That persuaded eBay that those users' true constructive preference was to receive lots of spam, junk mail and telemarketing phone calls. Read Michelle Delio's story for WIRED.
1/10/01 -- In the latest episode of conceding defeat on the installment plan, the White House announced that it would once again relax its export restrictions on encryption technology. Read Juliana Gruenwald's story for Interactive Week.
1/10/01 -- Robert Konop operated a password-restricted website for pilots, in which he criticized the Airline Pilots Association for supporting wage concessions, and urged his fellow pilots to seek new union representatives. In 1995, his boss at Hawaiian Airlines persuaded another pilot to share his password, and used it to gain access to Konop's website. Then he called the union. Konop sued the airline, claiming that gaining unauthorized access to his website violated the federal Wiretap Act, and telling the union about it violated the Railway Labor Act. The trial court dismissed the suit, but, on Monday, the 9th Circuit reinstated it. Read the AP story.
If the same thing were to happen today, of course, there'd be no need to rely on novel interpretations of the Federal Wiretap Act, since using a borrowed password for almost any imaginable purpose straightforwardly violates the letter of the Digital Millennium Copyright Act. Back in the bad old days of 1995, however, everyone had to rely on old-fangled tools.
1/9/01 -- Yahoo, after losing a French lawsuit seeking to force it to block French citizens' access to any Nazi material posted on its U.S. server, and then running into U.S. court looking for a ruling that the French judgment was unenforceable, has announced that it will no longer permit Nazi and Ku Klux Klan-related material to be posted on its site. Read Carl Kaplan's story for CyberTimes.
1/23/01 UPDATE -- Reuters reports that Charles Korman, a lawyer representing a group of french survivors of German concentration camps, has filed a new suit against Yahoo, claiming that its pursuit of a US court ruling barring the enforcement of the French judgment amounted to justification of war crimes in violation of French law.
You can find earlier news HERE.
If you don't have a viewer for PDF files, you can download an Acrobat reader free from Adobe, HERE
Look at earlier New Developments pages:
Return to the Sources page.
Return to the Syllabus.
Send me an email message: litman@mindspring.com