In this case, several students were required to submit their class papers to turnitin.com, a plagiarism detection website.  The students’ schools had agreements with iParadigms, the company that owned the website, which allowed them to archive the papers.  The main issue in the case was whether this was a copyright violation, and that issue made it all the way to the 4th Circuit Court of Appeals.  However, the 4th Circuit left intact the District Court’s reasoning that by clicking “I agree” on the website when submitting their papers, they were bound by all the terms contained in the contract.
Noting that typically contracts with minors are voidable, and citing the principle that “[i]f an infant enters into any contract subject to conditions or stipulations, he cannot take the benefit of the contract without the burden of the conditions or stipulations,” the court concluded that they essentially received irrevocable benefits.

They received a grade from their teachers, allowing them the opportunity to maintain good standing in the classes in which they were enrolled. Additionally, Plaintiffs gained the benefit of standing to bring the present suit. Plaintiffs cannot use the infancy defense to void their contractual obligations while retaining the benefits of the contract. Thus, Plaintiffs’ infancy defense fails.

Regardless of whether the benefits the Court cites actually were benefits of the contract per se, one problem is the irrevocability of the benefits that the court cites.   Under this test, any irrevocable benefit that happens as a result of the contract would suffice to destroy the infancy defense.  For example, simply using the service would suffice if it confered a sufficient benefit.  In an age where services are migrating to the cloud and most services have extensive clickwrap contracts attached to them, are we losing the infancy defense altogether?

Federal Communications Commission – the players:

• Acting Chairman Michael Copps (D) – a former history professor who has been at the Commission since 2001
• Commissioner Jonathan Adelstein (D) – former Senate staffer who has been at the Commission since 2002, but will be leaving the Commission in the near future to head the Rural Utilities Service
• Commissioner Robert McDowell (R) – on the Commission since 2006, formerly a business executive in the telecom industry
• Julius Genachowski (D) – (nominated, but not yet confirmed) a former FCC general counsel who is actively involved on the web side of the tech industry, board memberfor a number of web sites and founder of LaunchBox Digital and Rock Creek Ventures
• Mignon Clyburn (D) – (nominated, but not yet confirmed) South Carolina Public service

Senator Rockefeller has stated that he plans to have held a hearing on Genachowski and Clyburn by the Memorial Day break.  This may be complicated by the lack of a nominee for the second Republican position on the Commission.  Several legislators have their favorite candidate for the spot, but as of yet have been unable to reach agreement.  Senate Republicans have stated that the Genachowski nomination won’t go through unless paired with a Republican counterpart.  Throwing a little more uncertainty into the mix is the state of Commissioner McDowell.  His term is up this coming June and may either be replaced or reconfirmed.

The final makeup of the Commission is far from certain, but we have a rough idea of how things are going.  With the DTV transition finalized in June and significant broadband work to be done, staff are anxious to figure out the final makeup of the Commission.

The order, unfortunately, is severely truncated.  The court does not go into in-depth legal analysis, so it is unclear whether either of the parties brought up one of the key issues in the case: the fact that the Facebook may be an electronic communication service (ECS) provider, and thereby potentially prohibited from disclosing electronic communications even when presented with a civil subpoena.  For a little bit more in discussion on what it means to be an ECS provider, take a look here.

There are a number of cases holding that providers of ECS cannot disclose communications even when presented with a civil subpoena.   While there are no cases out there  expressly holding that communications platforms like Facebook, MySpace, and the like are ECS providers, they conceivably fall within the definition in the statute.

The Recovery Act provision that mandates this plan, section 6001(k), is as follows:

(k)(1) Not later than 1 year after the date of enactment of
this section, the Commission shall submit to the Committee on
Energy and Commerce of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the
Senate, a report containing a national broadband plan.

(2) The national broadband plan required by this section
shall seek to ensure that all people of the United States have
access to broadband capability and shall establish benchmarks
for meeting that goal. The plan shall also include:

(A) an analysis of the most effective and efficient
mechanisms for ensuring broadband access by all people
of the United States;

(B) a detailed strategy for achieving affordability of
such service and maximum utilization of broadband infrastructure
and service by the public;

(C) an evaluation of the status of deployment of
broadband service, including progress of projects supported
by the grants made pursuant to this section; and

(D) a plan for use of broadband infrastructure and
services in advancing consumer welfare, civic participation,
public safety and homeland security, community development,
health care delivery, energy independence and efficiency,
education, worker training, private sector investment,
entrepreneurial activity, job creation and economic
growth, and other national purposes.

(3) In developing the plan, the Commission shall have
access to data provided to other Government agencies under
the Broadband Data Improvement Act (47 U.S.C. 1301 note).

The plan is due February 17, 2010, and must seek to ensure ubiquitous broadband deployment.  Beyond that, the statute gives the FCC highlights of what the plan should include, but no guidance on the conclusions it should draw.  As a result, the FCC is opening this up to the public for comment.

The document is structured much like the statute, and ranges from questions as broad as how to define broadband to as narrow as how it should work with specific government agencies to achieve specific goals.  It also addresses how broadband relates to various public goals like security, education, healthcare and the like.   With appendix and signing statements it is well over 50 pages consisting largely of open-ended questions.

Since the analysis in the plan will only be as good as the data and ideas the FCC gets, the document is up for an extended comment period.  Initial written comments are due on June 8, and reply comments are due July 7.  The docket for this proceeding is 09-51, and the link to comment filing is here.  If you have something good, please share.

Full Disclosure: I was one of the drafters of this document and can’t comment on anything beyond its contents, since it is now an open proceeding.

The project, which is slated to go live in late May, is likely to be available in XML and exposed via the traditional HTTP GET, POST, PUT and DELETE operations.  The news on this project is pretty sparse so far.  For example it’s not entirely clear how different or more extensive this project is than http://www.usgovxml.com, a compendium of government XML datasets that are publicly available.   It is clear, though, that the mastermind behind this effort is the same one who is responsible for DC’s public data catalog.  For those interested in reading more, Wired has a good Wiki entry that catalogs the some of the current datasets available, how they can be made better, and suggestions for how data.gov should be run.  Enjoy.

The AP is headed after bloggers who are illegally using Associated Press copyrighted content.

The Associated Press (AP), one of the world’s largest news providers, plans to take legal action against Web portals and other sites that use its content without paying for a license, the organization said Monday.

via AP takes aim at Web sites over unlicensed news content | ITworld.

A New Jersey Court recently wrestled with the issue.  Basically, the employer had a clear policy that company computers and communications were not private and the employee used Yahoo Mail to contact her attorney during work hours.  The employee quit, the company imaged her hard drive, the employee sued, and the company used the cached emails on her work hard drive against her in court.  The key language from the case:

The Court finds that when an employee has knowledge of the employer’s electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer’s computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records, such communications are not protected by such attorney client privilege and are then not to be considered private or personal to any individual employee.

Of course, this isn’t the law everywhere;  many places this issue is still relatively untested.  Still, word to the wise: watch out what you do on your employer’s computer.

The case is here, and some more in depth analysis can be found at Proskauer’s New Media Law Blog here.

Then the current status of U.S. copyright law is not to your liking.  The U.S. code currently allows copyright holders to get $150k in damages where they prove that the object of their wrath willfully infringed their copyright, regardless of actual damages.  If you hoped that the Obama administration would undermine the statute, then the Obama Department of Justice has just disappointed you.

You might remember the case of former BU student who was challenging the statutory damages portion of the Copyright Act.  Back in February, the Obama DOJ notified that the court that it might intervene to opine on the constitutionality of that portion of the Act.  Well, it did, and it sided with the statute.  Now it’s up to the judge to decide whether the statute is constitutional, unless the judge can get around the question.

seek to ensure that all people of the United States have access to broadband capability and establish benchmarks for meeting that goal.

So, off to the races.
The wording of the statute raises a bunch of interesting and very broad questions.  For example, how do we define “broadband”?  What does it mean to “have access”?

The Commission is currently circulating a draft Notice of Inquiry (basically a document seeking ideas and information from the public to help develop a position on a topic) scheduled to be voted at the April meeting.  This is a great opportunity for folks in the general public to get their ideas out there, and I’ll blog more about it in the future if/when its finally released (though ethical obligations keep me from going into substance).

UPDATE: Link to video is live.

The International Herald Tribune has a great article on it.  Here’s one of the key quotes:

“I’ve never seen this level of lobbying before by American companies in Brussels,” said Laurence Vandewalle, a technology adviser to the European Green Party since 1997. Referring to AT&T and Verizon, she added: “They want European Parliament to take a position against net neutrality in order to sell it in the U.S.”

Retention of Certain Records and Information- A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.

Now, electronic communication service and remote computing service are terms that are defined elsewhere in the U.S. Code.  ECS, particularly has a very broad definition, i.e. “any service which provides to users thereof the ability to send or receive wire or electronic communications”.   Currently, there are a host of laws applying to ECS providers – among others the Wiretap Act, the Pen Register/Trap Act, and the one that started it all, the Electronic Communications Privacy Act.  All, broadly speaking, deal with privacy, interception, and disclosure of electronic communications.

The DOJ Cybercrime manual provides a pretty decent overview of what it means to be a provider of ECS (and an interesting look as to how opinions about the issue change over time), although the legislative history on the actual term itself is pretty hazy.  Courts have gone either way on the issue, sometimes holding that incidental providers of ECS, like businesses that provide internet access to their employees, are providers and sometimes not.

Ultimately, it is sufficiently ambiguous to go either way.  Given how cybercrime statutes can sometimes be used in novel ways (e.g., Lori Drew), there is a non-zero chance that a statute like this could be enforced against an unlikely suspect.

For each of the near term reporting requirements (major communications, formula block grant
allocations, weekly reports) agencies are required to provide a feed (preferred: Atom 1.0,
acceptable: RSS) of the information so that content can be delivered via subscription.

Hopefully this will provide some insight into how the money is spent.

A judge has dismissed a lawsuit filed by a Pennsylvania family against Google after the company took and posted images of the outside of their house in its Maps service.

The lawsuit, filed in April 2008, drew attention because it sought to challenge Google’s right to take street-level photos for its Maps’ Street View feature.

via Judge dismisses Google Street View case | ITworld.

The other major development this year is turning a website’s terms of service into a quasi-criminal code, punishable under the Computer Fraud and Abuse Act.  The theory of the case applied the “exceeding authorized access” language in the CFAA to the Myspace terms of service.  Essentially (with several important layrs of nuance removed), a jury found Lori drew guilty of violating Myspace’s terms of service, and convicted her under the CFAA.  Why is this a bad thing?  Because people don’t even read the terms of service on websites, much less attach criminal importance to them.  Aside from the case’s uniquely terrible circumstances, which certainly were a major impetus, this opens the door to prosecution based on terms of service.  Many states also have similar “exceeding authorized access” language built into various computer-related criminal statutes.  Could this case open the floodgates for state prosecution on this issues?  Only time will tell.

“They don’t have the right to read a book out loud,” said Paul Aiken, executive director of the Authors Guild. “That’s an audio right, which is derivative under copyright law.” [WSJ]

So, is electronically reading a book aloud infringing the author’s copyright?

The Authors Guild analysis fails for two major reasons: no creativity and no fixation.  In order to be copyrightable, even derivative works have to be minimally creative.  An audio recreation of this sort is doubtfully creative because it is merely a software translation; the application doing the text-to-speech may be creative, but its use is probably not.  Essentially, an audio recreation of the book cannot be a derivative work or a copy because copyright law requires derivative works or copies to be in a fixed medium.  Ephemeral sounds simply don’t cut it, at least according to the 9th Circuit.

So it seems like Kindle is in the clear, but who knows.  If there is enough at stake, they may go at it in court.

Notably, the Senate version of the bill does not require the FCC to define what “open access” means , and does not require the parties who receive the grants to be “open access” providers.  Depending on what comes out of the conference, we may or may not have network neutrality provisions attached to the funding.  More importantly, we might not have a hammered-down definition of what “open access” means.

The two bills differ in broadband speed definitoins as well.  The House version distinguishes between advanced broadband and advanced wireless broadband, tagging up/down speeds for the former at 45/15mbps  and the latter at 3/1mbps.  The Senate version distinguishes between next-gen and current-gen. Up/down for the former is 100/20mbps, and for the latter it is at least 5/1mbps for wired, 3mbps/768kbps for wireless.  If the Senate definitions win out, within a few years we could see speeds approach one tenth of those planned in South Korea.

Let the negotiations begin…