New Developments in Councilman

E-mail wiretapping case can proceed, court says [opinion]

In a closely watched case governing Internet privacy, a federal appeals court has reinstated a criminal case against an e-mail provider accused of violating wiretap laws.

The First Circuit Court of Appeals, in a 5-2 vote, ruled Thursday that an e-mail provider who allegedly read correspondence meant for his customers could be tried on federal criminal charges.

From the opinion:

In sum, the legislative history indicates that Congress included the electronic storage clause in the definition of “wire communication” provision for the sole reason that, without it, access to voicemail would have been regulated solely by the Stored Communications Act. Indeed, that is exactly what happened when Congress later removed the explicit reference to “electronic storage” from the definition of “wire communication” in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107-56, tit. II, § 209(1)(A), 115 Stat. 272, 283 (2001). See Robert A. Pikowsky, An Overview of the Law of Electronic Surveillance Post September 11, 2001, 94 Law Libr. J. 601, 608 (2002) (“[T]he USA PATRIOT Act amended the statutory scheme and unambiguously brought voicemail under the Stored Communications Act.”).

3. Conclusion

We conclude that the term “electronic communication” includes transient electronic storage that is intrinsic to the communication process for such communications. That conclusion is consistent with our precedent. See Blumofe v. Pharmatrak, Inc. (In re Pharmatrak Privacy Litig.), 329 F.3d 9, 21 (1st Cir. 2003) (a rigid “storage-transit dichotomy . . . may be less than apt to address current problems”); Footnote see also Hall v. EarthLink Network, Inc., 396 F.3d 500, 503 n.1 (2d Cir. 2005) (rejecting arguments that “communication over the Internet can only be electronic communication while it is in transit, not while it is in electronic storage”). Consequently, in this context we reject Councilman’s proposed distinction between “in transit” and “in storage.”

[…] Councilman’s core argument on appeal is that because the messages at issue, when acquired, were in transient electronic storage, they were not “electronic communication[s]” and, therefore, section 2511(1)’s prohibition on “intercept[ion]” of any “electronic communication” did not apply. That is the argument that we have now rejected in holding that an e-mail message does not cease to be an “electronic communication” during the momentary intervals, intrinsic to the communication process, at which the message resides in transient electronic storage. See supra Part II.A.

Councilman’s appeal does not provide any other basis for finding that the acquisitions were not “intercept[ions]” of “electronic communication[s].” To be sure, Councilman does argue that “Congress intended ‘intercept’ to cover acquisitions ‘contemporaneous with transmission.'” However, his entire argument on this point is based on the theory, as he writes in his brief, that “[c]ourts uniformly have understood ‘electronic storage’ to negate the ‘contemporaneous with transmission’ element of a Wiretap Act ‘intercept,'” and therefore “an e-mail in ‘electronic storage’ . . . cannot by definition be acquired ‘contemporaneous with transmission.'” That argument is simply a variation on, and entirely subsumed within, his primary argument concerning “storage” — the very argument that we have now rejected.

Apple v. Sony — Competition in Digital Distribution

An interesting fight, particularly given the tradition of Japanese companies to charge high prices in their home markets to support competitive pricing overseas: Musicians working to join iTunes in Japan [pdf] [via Slashdot]

Japanese musicians under contract with Sony and other labels that haven’t joined Apple’s iTunes Music Store are starting to defy their recording companies and trying to get their music on the popular download service launched last week in Japan.

At least one artist has already gone against his label to offer his songs on iTunes. And a major agency that manages Japanese musicians said Wednesday it was interested in a possible deal with Apple Computer Inc., regardless of the recording companies’ positions.

Online music stores had not taken off in Japan until iTune’s arrival last Thursday, which opened with a million songs from 15 Japanese record labels.

[…] iTunes’ popularity in Japan has been stunning. The publicity campaign, including a rare personal appearance by Chief Executive Steve Jobs, has grabbed media attention here.

Before iTunes’ arrival, Japan’s top music download service, which is backed by Sony and includes Sony recording artists, averaged about 450,000 downloads a month.

By offering its service for lower prices, Apple is undercutting such online music services. Japanese are accustomed to paying twice as much as Apple is charging in Japan, which are still higher than the 99 cents charged in the U.S.

Expensive, and Limiting

MPEG-LA’s customers are still not happy; and they’re taking on others via the European Commission: DVD makers complain they are forced to overpay [pdf]

Independent makers of pre-recorded DVDs have told the European Commission that a coterie of big companies use patents to choke their income, violating European Union law.

But those who license the technology say they follow the patent licensing rules for pre-recorded optical discs.

The independent fabricators make a quarter of the 3 billion DVDs produced annually worldwide and believe the situation is at a turning point because new, high-capacity Blue Ray and HD DVD discs for high-definition movies debut next year.

“There will be new formats coming and we feel it’s important that a line should be drawn in the sand by regulators,” said Guy Marriott, head of the International Optical Disc Replicators Association (iODRA) in Geneva.

[…] MPEG LA’s logo says it provides “fair, reasonable, non-discriminatory access” to patents, as patent pools are generally required to do.

But iODRA’s Marriott says corporations and MPEG LA make them pay a bigger percentage of costs than they paid in the late 1990s.

Prices have crashed from the late 1990. DVD fabrication for movie companies once fetched $1 a disc but large runs nowadays are worth 30 cents or less.

See also Blu-Ray to Include New Copy Protection

My Tax Dollars At Work … Promoting MS Hegemony?

Here’s something in the Copyright Office’s supplemental notice of proposed rulemaking having to do with online registration of materials for copyright registration: Federal Register: Preregistration of Certain Unpublished Copyright Claims (via Copyright Office poll: IE-only OK?)

In accordance with the Artists’ Rights and Theft Prevention Act of 2005 (the ART Act), Title I of the Family Entertainment and Copyright Act, Pub. L. No. 109-9, 119 Stat. 218, the Copyright Office recently proposed implementing regulations for preregistration of eligible copyright claims. 70 FR 42286 (July 22, 2005). To be eligible for preregistration, a work must be unpublished, in the process of being prepared for commercial distribution, and in a class of works that the Register of Copyrights determines has had a history of copyright infringement.

Section 104 of the ART Act directs that preregistration procedures must be in place by October 24, 2005. 17 U.S.C. 408(f)(1). To comply with this time frame and to facilitate efficient processing of preregistration claims, inter alia, the proposed rule calls for filing such claims by electronic means only. At this point in the process of developing the Copyright Office’s system for online preregistration, it is not entirely clear whether the system will be compatible with web browsers other than Microsoft Internet Explorer versions 5.1 and higher. Filers of preregistration applications will be able to employ these Internet Explorer browsers successfully. Support for Netscape 7.2, Firefox 1.0.3, and Mozilla 1.7.7 is planned but will not be available when preregistration goes into effect. Present users of these browsers may experience problems when filing claims.

In order to ensure that preregistration can be implemented in a smoothly functioning and timely manner, the Office now seeks comments that will assist it in determining whether any eligible parties will be prevented from preregistering a claim due to browser requirements of the preregistration system. Therefore, this notice seeks information whether any potential preregistration filers would have difficulties using Internet Explorer (version 5.1 or higher) to file preregistration claims, and if so, why. More generally, in the interest of achieving support for browsers in the Office’s preregistration processing environment, this notice inquires whether (and why) an eligible party who anticipates preregistering a claim on the electronic-only form will not be able to use Internet Explorer to do so, or will choose not to preregister if it is necessary to use Internet Explorer.

A particularly good comment:

This is ridiculous – this is the same government that SUED Microsoft for Anti-trust issues – over the very same browser – and now they are FORCING people to use it. Someone needs to tell the Copyright office – that this is the the 00’s – crap like this was acceptable back in the late 90’s.

How much you want to bet that even w/ IE – the site won’t be ADA accessible?