January 23, 2008

Something A Little Closer To Home [4:45 pm]

From MIT’s student paper, The Tech: RIAA Sends Institute 19 Settlement Letters Alleging Infringementpdf

The RIAA identified alleged infringers by looking at their IP addresses. Since the RIAA cannot obtain the names of people connected with the IP addresses without a court order, it instead sent its demand letters directly to MIT and requested that the Institute forward the letters to the community members. MIT complied with the RIAA’s request and has forwarded the letters to the computer users corresponding to those addresses.

These requests come as part of the latest wave of 407 RIAA letters sent to college students from universities across the country this month. The RIAA has sent thousands of such letters in batches since February 2007. This is the third time that the RIAA has sent letters to groups of MIT affiliates: 23 letters were sent in May 2007, and 30 were sent in September 2007.

By asking for settlements in these letters, the RIAA avoids ordering costly subpoenas that force universities to release the identities of alleged infringers and following up on those subpoenas with copyright infringement lawsuits. The letters also, according to the RIAA, “provide students the opportunity to resolve copyright infringement claims against them at a discounted rate before a formal lawsuit is filed.” [...]

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Searches and Digital Devices [4:42 pm]

A provocative little article [via Machinist], suggesting that, under current precedent, an iPhone may be considered a container (see also the Boucher postings here): The iPhone Meets the Fourth Amendment by Adam Gershowitz

Imagine that Dan Defendant is stopped by the police for driving through a stop sign. The officer thinks that Dan looks suspicious, but has no probable cause to believe he has done anything illegal, other than driving recklessly. Nevertheless, because running a stop sign is an arrestable offense and the officer is suspicious that Dan might be involved in more serious criminal activity, the officer arrests Dan for the traffic violation.

Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. For instance, a standard search incident to arrest often turns up drugs located in a small container such as a cigarette pack. Yet, Dan does not have a cigarette pack in his pocket; instead, like millions of other technophiles, Dan is carrying an iPhone.

The officer removes the iPhone from Dan’s pocket and begins to rummage through Dan’s cell phone contacts, call history, emails, pictures, movies, and, perhaps most significantly, the browsing history from his use of the internet. In addition to finding Dan’s personal financial data and embarrassing personal information, the police also discover incriminating pictures of stolen contraband, emails evidencing drug transactions, and internet surfing of websites containing child pornography. Is all of this evidence admissible even though Dan has only been arrested for a traffic infraction and there was no probable cause (not to mention no warrant) to search the contents of his iPhone? When one considers the breadth of information located in Dan’s iPhone, it would seem shocking that officers need no suspicion whatsoever in order to search through that information. Yet, that conclusion appears to follow from longstanding Supreme Court precedent laid down well before handheld technology was even contemplated.

This essay demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The essay also offers approaches courts and legislatures might adopt to ensure greater protection for the soon to be pervasive iPhone devices.

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Slate Looks At A Patent Alternative [2:23 pm]

Should the government start handing out prizes for science breakthroughs?

Right now, senators, inventors, and tech companies are squabbling about how to reform the patent system to encourage more innovation. Some version of the embattled patent-reform legislation is expected to pass next month, and stakeholders are preparing for a gory fight over all sorts of itty-bitty nitty-gritties, such as how to calculate damages for patent infringement.

Meanwhile, some scholars and politicians are proposing something far more radical: They want to junk, rather than just rejigger, the patent system. Instead of handing out patent monopolies, they say, the government should offer cash prizes for inventions. In an ideal world, this would lead to cheaper products and motivate more research and development in fields that are unprofitable but socially valuable—such as new treatments for diseases that affect poor people. This solution may seem extreme, but targeting certain elements of the idea to particular inventions would be both politically feasible and entrepreneurially effective.

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AT&T Still Talking Trash [2:15 pm]

AT&T looking at Internet filteringpdf

CEO Randall Stephenson told a conference at the World Economic Forum that the company is looking at monitoring peer-to-peer file-sharing networks, one of the largest drivers of online traffic but also a common way to illegally exchange copyright files.

“Its like being in a store and watching someone steal a DVD. Do you act?” Stephenson asked.

Tim Wu has already offered up free advice on why this looks like a suicidal proposal for ISPs. It’s hard to believe that AT&T hates network neutrality as much as Wu suggests, but the only other explanation is that AT&T is expecting to eventually get complete and total immunity in their operations, period — now that’s a nightmare!

Comment at Machinist: Yes, AT&T is losing its mind (and might filter the Internet)

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More on the Boucher Case [8:59 am]

In Child Porn Case, a Digital Dilemmapdf

On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.

The government has appealed, and the case is being investigated by a grand jury, said Boucher’s attorney, James Boudreau of Boston. He said it would be “inappropriate” to comment while the case is pending. Justice Department officials also declined to comment.

But the ruling has caused controversy.

“The consequence of this decision being upheld is that the government would have to find other methods to get this information,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center. “But that’s as it should be. That’s what the Fifth Amendment is intended to protect.”

Mark D. Rasch, a privacy and technology expert with FTI Consulting and a former federal prosecutor, said the ruling was “dangerous” for law enforcement. “If it stands, it means that if you encrypt your documents, the government cannot force you to decrypt them,” he said. “So you’re going to see drug dealers and pedophiles encrypting their documents, secure in the knowledge that the police can’t get at them.”

See earlier The Power of Inconvenience

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OT: One Side Heard From [8:44 am]

This is bound to get some juices flowing somewhere — but the study’s web site offers up a pretty comprehensive picture: Study: Bush, other officials issued hundreds of false statements before Iraq invasionpdf

A study by two nonprofit journalism organizations found that President Bush and top administration officials issued hundreds of false statements about the national security threat from Iraq in the two years following the 2001 terrorist attacks.

The study concluded that the statements “were part of an orchestrated campaign that effectively galvanized public opinion and, in the process, led the nation to war under decidedly false pretenses.”

From the study’s web page: The War Card: Orchestrated Deception On The Path To War

The massive database at the heart of this project juxtaposes what President Bush and these seven top officials were saying for public consumption against what was known, or should have been known, on a day-to-day basis. This fully searchable database includes the public statements, drawn from both primary sources (such as official transcripts) and secondary sources (chiefly major news organizations) over the two years beginning on September 11, 2001. It also interlaces relevant information from more than 25 government reports, books, articles, speeches, and interviews.

Later: Tim Grieve gives us the comments on the report from this afternoon’s White House briefing (there’s also some positioning on FISA, too).

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The *Perfect* Combination! [7:38 am]

Google and Ad Conglomerate Teaming Up

The chief executives of Publicis Groupe, the advertising conglomerate, and Google, the Internet giant, said Tuesday that they would jointly develop an approach to digital advertising that was both creative and technologically savvy, a combination they said is lacking.

Neither Maurice Lévy of Publicis nor Eric E. Schmidt of Google, speaking with the press at Publicis’s headquarters here, would put a value on the partnership, which is not exclusive. But they asserted that the collaboration gave them a “first-mover advantage” in combining the programming knowledge of Google with the creativity of advertising agencies.

The resulting tools and business intelligence would not necessarily be proprietary to the two companies but could help propel the growth of digital advertising, they said.

Who wouldn’t want this?

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So How Gutless *Are* The Democrats? [7:32 am]

I guess we’ll get to see, but it looks like the answer is going to be “pretty much entirely gutless” when it comes to telecom amnesty. This article offers up a pretty clear portrait of Harry Reid’s gutlessness: Democrats Try to Delay Eavesdropping Vote

Senate Democrats concede that they probably lack the votes needed to stop a White House-backed plan to give immunity to phone utilities that helped the National Security Agency’s eavesdropping, and they are seeking to put off the vote for another month.

[...] Advocates for civil liberties fault the Senate majority leader, Harry Reid of Nevada, for what they see as a weak effort to block the White House immunity plan. Mr. Reid opposes immunity, but his decision to allow an initial vote on the Intelligence Committee plan, with immunity, has angered opponents.

“If Senator Reid wanted to win, he would have put the judiciary vote on the floor first,” Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union, said. “It seems as if he wants to lose.”

See Glenn Greenwald’s screed: Will the Democratic presidential candidates adhere to their rhetoric? — pointing out that no one is going to help Senator Dodd block this shameful amnesty. Also, see this later post — Your Harry Reid-led Senate in action

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LATimes Editorial on EMI’s Restructuring Efforts [7:26 am]

How to stop declining album salespdf

The prolonged slide has prompted record companies to package and deliver their products in new ways, ranging from online subscription services to reality TV shows. But these efforts can’t disguise the fact that their main strategy — placing expensive bets on numerous artists and counting on a few hits big enough to cover all the misses — isn’t working anymore.

Labels have tried cutting costs and trimming rosters, but it wasn’t until last week that a major record company announced plans to abandon the high-risk, high-reward business model. Guy Hands, a venture capitalist whose investment firm bought out EMI last year, said his label group couldn’t survive if it continued to lose money on new releases. In Hands’ view, EMI needs to become more of a service provider, enabling it to team profitably with acts large and small. And he plans to spend more money finding and developing artists, then trying to build audiences for them using new technology.

Hands offered few details, so it’s hard to judge his plan. Still, at least he’s seeking a fundamental change in the way his company does business. [...]

See earlier EMI Makes Some Hard Decisions and Taking My Ball and Going Home

See also To Cut Costs, NBC Universal Ends Pilots

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Are You Surprised? [7:18 am]

Of course, it’s not the most earth-shattering analysis, yet: Downloading by Students Overstatedpdf

In its campaign urging lawmakers and colleges to take the issue of on-campus illegal file sharing seriously, the Motion Picture Association of America has wielded an array of legal arguments, facts and statistics. It now appears that a central figure in that arsenal was high by a factor of three, galvanizing its opponents who maintain that colleges have been singled out unfairly as havens of downloading activity.

The association often notes that according to a 2005 study it commissioned, 44 percent of the money the industry lost within the United States that year was attributable to peer-to-peer file sharing by college students. It now appears that the figure was closer to 15 percent, or $243 million. Mark Luker, a vice president at Educause, an organization promoting technology use in higher education, said the numbers reflected college students both on and off campus even though college Internet service providers, the target of pressure from both Congress and the MPAA to step up anti-piracy efforts, typically only serve on-campus residents. It would be “reasonable,” Luker said, to divide the MPAA numbers by five, since about a fifth of college students live on campus, leaving the figure somewhere around 3 percent of domestic losses.

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