“I’m disappointed with the way the Internet has gone in the past ten years. . . . I’ve always felt that the human-centered approach to computer science leads to more interesting, more exotic, more wild, and more heroic adventures than the machine-supremacy approach, where information is the highest goal.
“At the South by Southwest Interactive conference, in Austin, in March of 2010, Lanier gave a talk, before which he asked his audience not to blog, text, or tweet while he was speaking. He later wrote that his message to the crowd had been: “If you listen first, and write later, then whatever you write will have had time to filter through your brain, and you’ll be in what you say. This is what makes you exist. If you are only a reflector of information, are you really there?”‘
— From a profile of Jaron Lanier, author of You Are Not A Gadget and one of the pioneers of virtual reality technology, in Jennifer Kahn, “The Visionary,” The New Yorker, July 11 & 18, 2011, pp.46-53.
A group of major Internet service providers (ISPs), content provider organizations and two leading industry associations just announced last week the establishment of the Center for Copyright Information to better educate the public about appropriate online copyright usage and a soon-to-be-implemented uniform Copyright Alert System in hopes of deterring unauthorized Internet use of copyrighted materials. Included as signatories to the Memorandum of Understanding (the Copyright Alerts MOU), which outlines both initiatives, are the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), Disney Studios, Sony Pictures, Warner Bros., UMG, EMI, AT&T, Verizon, Comcast and Time Warner Cable.
Unlawful sharing, downloads and use of copyrighted materials over the Internet has been the bane of many creators of copyrighted works, particularly the major record labels and movie studios. The music industry has had some success in pursuing infringement through lawsuits against significant peer-to-peer site operators (e.g., Grokster and LimeWire). It has also experienced somewhat mixed results and lots of negative PR via aggressive lawsuits by RIAA against individual users. For their part, ISPs have been burdened with assisting, at least indirectly, in related policing efforts by virtue of administering takedown policies and procedures pursuant to Section 512 of the Digital Millenium Copyright Act (DMCA).
So, while not abandoning altogether their current practices and rights, the signatories to the Copyright Alerts MOU will implement a system of uniform notices that content organizations can send to participating ISPs, which will then issue a series of escalating alerts to alleged infringers that seek to halt the alleged infringing activity. The types of alerts in ascending order are (i) an Educational Step Copyright Alert, (ii) an Acknowledgment Step Copyright Alert, (iii) a Mitigation Measure Copyright Alert Step. For each step there may also be multiple alert notices provided to an applicable user. Measures proposed at the Mitigation Step include a reduction in upload/download transmission speeds, a step down to a lower tier service, redirection to a landing page until the matter is resolved, and restrictions on Internet access. There are several “warning bells” along the alert steps as well as an appeals procedure (although a user is required to pay a $35 fee to pursue an appeal).
The tenor of the Copyrights Alert MOU and an FAQ on the Center for Copyright Information’s website makes clear that this is intended as a sort of experiment to address a problem for which a solution has long eluded a diverse group of stakeholders. While it is too early to judge how this will work in practice, it appears to be a constructive effort worth watching.
In Barclays Capital, et al. v. Theflyonthewall.com, Inc., Docket No. 1-1372-cv (2nd Cir. June 20, 2011), the Second Circuit U.S. Court of Appeals dealt a significant blow to the viability of the tort of “hot news” misappropriation and thereby gave an additional boost to the status of online content aggregation companies.
As so-called “new media” companies go, the subset known as content aggregators — such as the Huffington Post or the Drudge Report — have been a curious burr in the side of many, more traditional media businesses engaged in news gathering and reporting. If content aggregation sites are readily able and without payment to repurpose the efforts of the old line news outfits such as the Associated Press, The New York Times or ABC News, for example, does this threaten the core news gathering and reporting functions of that latter group and, if so, should there be a prohibition on such aggregation activities.
Background of Hot News Doctrine
The “hot news” doctrine is intertwined with copyright law and derives from a 1918 U.S. Supreme Court case involving International New Service (INS) and the Associated Press (AP), in which INS was prohibited from free riding on the AP’s efforts by taking factual accounts derived from AP news stories and then presenting the news stories as INS’s own reports. International News Service v. Associated Press, 248 U.S. 215 (U.S. 1918). The doctrine was later severely limited by the Second Circuit in National Basketball Association v. Motorola, 105 F.3d 841 (2nd Cir. 1997), which addressed a collaboration between Motorola and a reporting service using pagers to transmit with only a few minutes delay game scores and data compiled from various sources and which competed somewhat with the NBA’s own efforts at packaging and selling games data in more or less real time. The NBA court articulated a multi-factor test for when a hot news misappropriation claim would survive copyright law preemption and ultimately concluded that the hot news claims asserted by the NBA were preempted by copyright law because the actions complained about by Motorola, among other things, did not involve any free riding and thus did not satisfy the elements of a hot news claim. Read the rest of this entry »
Mississippi’s data breach law, enacted in 2010, comes into effect today (July 1, 2011), and brings to 46 the number of U.S. states that have data breach notification laws in effect. The District of Columbia, Puerto Rico and the U.S. Virgin Islands also have such laws. The only states that remain without data breach notification laws are Alabama, Kentucky, New Mexico and South Dakota.
Mississippi’s statute on the matter is similar to that of most of the other states that address data breaches. Notification is required if there is a covered data breach by an entity or person doing business in the state, with exceptions for encrypted data or an incident that has been reasonably determined after an appropriate investigation to not be likely to result in harm to the affected individuals.
It’s not often that matters that fall into the techy-wonk category make the editorial page of the NY Times. So, it’s noteworthy that the lead editorial in yesterday’s Times expressed many of the commonly cited security and privacy concerns and risks associated with cloud computing. The commentary was by no means of the doom-and-gloom variety and could be viewed as both a validator that the cloud is now just about as mainstream as any technology phenomenon — if the recent fanfare around Apple’s announcement of iCloud or the seemingly ubiquitous “Cloud with Confidence” commercials by Cisco, among many other things, hasn’t already made that evident — and a harbinger of even more regulatory focus on ensuring online privacy and security, which has been simmering now for quite a while.
Photo Credit: Mammatus Storm Clouds, by Derrich, Wikimedia Commons