Ninth Circuit Ducks

On a time-honored basis – “mootness:” (update: not exactly; see below) Court rules against Yahoo in Nazi speech case [pdf]

In a case that pitted freedom of speech rights enshrined under U.S. law against European anti-hate group statutes, the San Francisco-based U.S. Court of Appeals for the Ninth Circuit reversed a district court ruling that had provided free speech protections to the U.S. company in its overseas operations.

The U.S. appeals court said that because Yahoo had complied “in large measure” with the French court’s orders and barred the the sale of Nazi memorabilia from its site in France, Yahoo’s free speech petition has become a moot issue.

“Unless and until Yahoo! changes its policy again, and thereby more clearly violates the French court’s orders, it is unclear how much is now actually in dispute,” the decision by a majority of the appeal court’s 11 judges who heard the case.

The opinion: Yahoo! Inc v. La Ligue Contre le Racisme et l’Antisemitisme

A majority of the en banc court (Judge W.A. Fletcher, joined by Chief Judge Schroeder and Judges Hawkins, Fisher, Gould, Paez, Clifton, and Bea) concludes that the district court had personal jurisdiction over the defendants. Of that majority, three judges (Chief Judge Schroeder, and Judges W.A. Fletcher and Gould) conclude that the action should be dismissed for lack of ripeness. Five judges (Judge Fisher, joined by Judges Hawkins, Paez, Clifton, and Bea) conclude that the case is ripe for adjudication. The three remaining judges (Judges Ferguson, O’Scannlain, and Tashima) conclude that the action should be dismissed because the district court lacked personal jurisdiction over the defendants.

Later, in the Conclusion:

First Amendment issues arising out of international Internet use are new, important and difficult. We should not rush to decide such issues based on an inadequate, incomplete or unclear record. We should proceed carefully, with awareness of the limitations of our judicial competence, in this undeveloped area of the law. Precisely because of the novelty, importance and difficulty of the First Amendment issues Yahoo! seeks to litigate, we should scrupulously observe the prudential limitations on the exercise of our power.

Yahoo! wants a decision providing broad First Amendment protection for speech and speech-related activities on the Internet that might violate the laws or offend the sensibilities of other countries. As currently framed, however, Yahoo!’s suit comes perilously close to a request for a forbidden advisory opinion. There was a live dispute when Yahoo! first filed suit in federal district court, but Yahoo! soon thereafter voluntarily changed its policy to comply, at least in part, with the commands of the French court’s interim orders. This change in policy may or may not have mooted Yahoo!’s federal suit, but it has at least come close. Unless and until Yahoo! changes its policy again, and thereby more clearly violates the French court’s orders, it is unclear how much is now actually in dispute.

[…] Until we know whether further restrictions on access by French, and possibly American, users are required, we cannot decide whether or to what degree the First Amendment might be violated by enforcement of the French court’s orders, and whether such enforcement would be repugnant to California public policy. We do not know whether further restrictions are required, and what they might be, because Yahoo! has chosen not to ask the French court. Instead, it has chosen to come home to ask for a declaratory judgment that the French court’s orders — whatever they may or may not require, and whatever First Amendment questions they may or may not present — are unenforceable in the United States.

[…] When the votes of the three judges who conclude that the suit is unripe are combined with the votes of the three dissenting judges who conclude that there is no personal jurisdiction over LICRA and UEJF, there are six votes to dismiss Yahoo!’s suit.

MS Gets to Patent FAT After All?!?

How did I miss this!?!? News: Microsoft wins FAT patent

Microsoft has won its battle with the US Patents and Trademarks Office (USPTO) over its attempt to patent the File Allocation Table or FAT, which formed the basis of the management of disk storage in the days of MS-DOS.

The company applied for a patent on FAT in 1996. However, because the format had become so widely used, there were fears that Microsoft would use the FAT licence to drive out competition. A particular risk were open source projects which used FAT as a standard method of storage who feared that large royalty demands would curtail their work.

The USPTO has now reversed its earlier decision that rejected the patents in September 2004 and has upheld the patent having rejected claims by Public Patent Foundation of ‘prior art’ which would have rendered the application as invalid. The USPTO has also rejected two patent applications from Microsoft related to long file names in October 2005.

On its website Microsoft offers to licence the FAT IP. Pricing for this license is $0.25 per unit with a cap on total royalties of $250,000 per manufacturer. Among those who might find themselves on the receiving end of a royalty demand from Microsoft are likely to be Linux vendors and memory stick manufacturers.

Privacy and iTunes

After running my system upgrade yesterday, I noticed the new window in my iTunes – now to see if I can make it go away – not to make it invisible; to take it away. Suggestions out there? iTunes Offers Upgrade, Privacy Concerns Emerge

Update: According to this article, Eyeing the iTunes MiniStore, disabling the window does, in fact, also stop the network traffic.

The MiniStore can be easily disabled—just hit Shift-Command-M, or choose Edit: Hide MiniStore, and it’s gone. Once hidden, no more data is transmitted, as confirmed by Kirk McElhearn using the Unix program tcpdump, which watches traffic sent over your network connection. Disable the MiniStore, and your private listening habits will stay just that—private.

However, this isn’t about the MiniStore itself. It’s about Apple’s attitude in rolling this change out to the millions of iTunes users, without as much as a peep about what’s going on behind the scenes. […]

Later: Snooping fears plague new iTunes

Kristin Hersh: An Experiment in Sustainability

Can’t contain her free spirit [pdf]

Remember when Courtney Love boasted in a righteous, record-contract-hating rage that she would bring down the music business with relentless, deep-pocketed litigation? Well, singer-songwriter Kristin Hersh has no money for lawyers, but she does have an approach that, while still a longshot, is more likely to work: give her music away.

“It’s kind of an unpopular argument, that musicians shouldn’t make money,” says the Altadena resident, laughing. “But really, they shouldn’t.” So, the former leader of pioneering college-rock band Throwing Muses is offering the latest EP by her trio, 50 Foot Wave — pointedly titled “Free Music” — as a free, high-quality audio download on her websites.

[…] “It used to be that folk singers, blues players, would walk from town to town, from party to party, from bar to bar, from church to church, and music would happen,” she says. “Then somebody said, ‘I’m going to record you, so I can make money from music happening.’ And that right there is the problem.” She laughs. “And it’s a bigger problem than ever.”

O’Connell says media consolidation is affecting independent artists’ ability to reach new ears, even cutting into that most traditional of grass-roots outreach, touring. “The majors have brought money and influence and their reach into the equation,” he says, “so even at the club level, even at the college and community radio level, there are fewer ways of getting your music out there.”

Digital distribution costs are minor, he says, adding that they plan to stop charging for any Hersh-related downloads that exist in other formats, which means pretty much everything but the “Works in Progress” series of otherwise unreleased Hersh and Muses tunes.

[…] “I’m not saying this is an easy or smart thing to do,” she says. “But when we play, we remember our drug. It’s our only chance to get a fix.” She laughs. “And when that’s taken away, we lose something, and the audience loses something. Maybe in the next few decades, [the music business] will seriously crumble, and we won’t have to suffer the effects of it anymore. But right now, these are dark days for everyone.”

Rep. Christopher Smith Says “Enough”

Lawmaker aims to stop China’s Net censorship [pdf]

Representative Christopher H. Smith, a New Jersey Republican and chairman of a House subcommittee on human rights, plans to hold hearings next month on reports that US Internet companies, including Yahoo Inc. and Microsoft Corp., aid efforts by the government of China to suppress free speech. The issue has simmered for years as American companies have raced to enter the Chinese Internet market, already the second-largest on earth and rapidly growing.

US businesses and politicians have long said the growth of Internet use in China would lead to greater freedom of expression; in turn, this would encourage the world’s most populous nation to begin a gradual transition toward democracy.

Instead, the government has repeatedly censored political speech on the Internet in China. And to the dismay of Smith and other human rights activists, American companies have often acquiesced to this censorship. […]

[…] Smith said such a law is probably the only way to stop US firms from cooperating with overseas censorship. He said that no US company should ever comply with China’s political censorship policies, even if it means they lose the right to do business in China.

“Call them on their bluff,” Smith said. ”We want an amelioration of your behavior, or we will not do business with you.”

Later: From BusinessWeek online – The Great Firewall of China [pdf]