Score One for the Internet: European Union Affirms the Right to Hyperlink

POSTED BY Andrew Clark

The European Court of Justice that sits in Luxembourg recently decided the Case of Nils Svensson et al. v. Retriever Sverige. The Plaintiffs in this case, Svensson et al., brought an action against the Defendant, Retriever Sverige, to obtain compensation for the use of hyperlinks by the Defendants, which directed users to the Plaintiff’s website. The question before the court was whether person who places a hyperlink to a copyrighted work with out the copyright holder’s permission violates copyright or related areas of law?

The EU Court held that there was no violation of copyright law by an unauthorized user directing website visitors to copyrighted works through the use of a hyperlink. The court specified that, “the owner of a website, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.” One important consideration to note is that the holding only applies to hyperlinked work that is freely available to the public; it does not include links that seek to avoid payment or restricted access.

The sanctity of the Internet was protected due to the EU Court’s holding. The Internet is a vast medium of information that is often easier found by clicking from Website to Website rather than searching for specific information. What if the court would have held conversely, that a copyright holder’s permission was required to place a hyperlink on a website? That holding would have made it impossible for users to click from one website to another that included complimentary information, thus forever changing the structure of the Internet. For example, had the converse holding been upheld it would have made writing this blog post difficult. Imagine reading a news article about a current legal issue, but where you’d normally find a hyperlink to the related court case there was nothing. You would then have to search the Internet for the specific source adding unnecessary delay and headache. I do agree with the differentiation between linking to publicly available Websites or works and those with restricted access. I do not feel that it would be appropriate to allow hyperlinks to be used to avoid paying to access a website or other specified restrictions. Thankfully, the holding in this case substantiated the Internet as a great space for the world to share information with others, so long as that information is freely accessible.

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Recent Supreme Judicial Court Ruling a Victory for Privacy Advocates

POSTED BY Micah-Shalom Kesselman

Complementing an article written by one of our very own in our most recent published issue, the Supreme Judicial Court of Massachusetts recently ruled on the issue of whether a warrant is needed to obtain cellular site location information (CSLI) from a third party under the state constitution. The lower courts had held that the state was required to obtain a warrant to access Shabazz Augustine’s CSLI, regardless if it retrieved the information under Federal law. The highest court in Massachusetts took the case on appeal and listened to arguments from both the state and Augstine, represented by the American Civil Liberties Union of Massachusetts, as well as receiving numerous amicus briefs from organizations such as the Electronic Frontier Foundation.

The SJC held that “the government-compelled production of the [Augstine’s] CSLI records by Sprint constituted a search in the constitutional sense to which the warrant requirement of art. 14 applied.” Before anyone celebrates this as a victory for privacy rights, it should be noted that the court explicitly refrained from wading into a Fourth Amendment analysis and decided the issue strictly along the contours of Article 14 of the Massachusetts Constitution. In its opinion, the SJC observed that “a majority of [Federal] courts [have] ruled that an individual has no reasonable expectation of privacy in the CSLI because it is a third-party business record.”

This is certainly a major and important victory for privacy advocates in Massachusetts. There are still major issues to be resolved. As the SJC itself explained, though the Circuits generally fall on the side of third-party CSLI being accessible without a warrant, there is still a split. The nature of federal law enforcement also makes it more likely that such investigative practices will be useful as compared to state law enforcement. Furthermore, the familiar issues of tracking via digital footsteps are still kicking about. So, though a privacy victory, let’s keep a practical sensibility and keep in mind the long haul still to go.

YouTube Matures Over Long Seven-Year Litigation Against Viacom

POSTED BY Abner Pinedo

YouTube is an efficient video sharing website owned by Google. It is known as the second largest search engine in the world. It is easy for just about anyone to upload any kind of media online nowadays. People use it for, including but not limited to, streaming music, television shows, tutorials, and news. However, over the past few years YouTube has been struggling in the realm of Copyright law and has fought fiercely.

In the past and currently, YouTube, as an Online Service Provider (OSP), protects itself using the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions found under 17 U.S.C. § 512, which exempts service providers from liability of infringement for a copyrighted work’s transmission. If YouTube is aware of any material on their website that violates a copyright holder’s rights it removes the video. At this point, the subscriber that originally uploaded the “infringing” material has an opportunity to counter YouTube (OSP) and can republish the material, if they so desire. This is were most lawsuits arise in the context of YouTube.

The most recent battle between YouTube and Viacom—owns MTV, Comedy Central, and Nickelodeon—deals with YouTube’s posting of Viacom’s programs on their website without their permission. Google was able to reach licensing agreements with several other entertainment companies, but were unable to reach an agreement with Viacom. Viacom originally sued YouTube back in 2007 for the alleging infringement of 79,000 unauthorized clips. Viacom’s unsuccessfully attempted to narrowly define the Online Service Provider definition in order to oust YouTube from its safe harbor protection. Recently, Viacom and Google have finally reached an undisclosed settlement agreement after a seven-year legal battle.

Over the course of the suit, YouTube has become a well-rounded copyright citizen. Viacom’s aggressive arguments of YouTube knowledgeable awareness of infringement has aided in YouTube’s new stricter take-down policies enabling them to work with more content owners. Through YouTube’s advertisement tactics and monetary opportunities they have created new opportunities for many known and unknown copyright owners. Now that the suit has finished it is only a matter of time before YouTube and Viacom agree to a partnership, increasing YouTube’s popularity and viewership success.

NameTags Like Never Before

POSTED BY Bridget Sarpu

Many people have attended events where they must sport the “Hello, My Name is…” nametags, in order for other guests to be able to easily identify one another. With new advancements in technology, traditional nametags may be obsolete, replaced with a much creepier, smartphone or Google Glass application.

NameTag is a new facial recognition app that lets users scan faces of strangers and match the face to the owner’s online and public record. If NameTag successfully locates the owner’s face online, it retrieves any public information and presents it to the user of the application. Information can include full name, relationship status, school attended, current occupation, interests, and more. According to a recent press release, NameTag also will be able to scan a face through the National Sex Offender Registry and can tell a user the criminal records of individual. Soon, people may not need traditional nametags if they can just scan a person’s face and receive all available information on their smartphone.

The app, developed by FacialNetwork.com, is available for iOS and Android devices and is believed to be available soon for Google Glass. Specifically, NameTag sends photographs wirelessly to a server, compares the photographs to millions of records and in seconds returns a match complete with a name, additional photos, and social medial profiles. Technology is already being developed to allow the scanning of profile photos from dating sites such as Match.com, PlentyOfFish.com, and OkCupid.com. For added peace of mind, the user can also cross-reference the photos against more than 450,000 entries in the National Sex Offender Registry.   Other criminal databases are perused and report information such as online court records. Once the application gathers all the details of the scanned face, it not only presents the information to the user who originally scanned the face but then it uploads them to FacialNetwork.com’s database for future easy access.

Kevin Alan Tussy, NameTag’s creator, claims to have developed the app for the purpose of safety. He believes there is an added benefit of giving users an easy way to learn more about their future friends, coworkers, or dates, creating an instant connection based on mutual interests or hobbies. Tussy said in a statement, “It is much easier to meet interesting new people when we can simply look at someone, see their Facebook, review their LinkedIn page or maybe even see their dating site profile. Often we were interacting with people blindly or not interacting at all.”[1]

The app is not officially sanctioned Glassware, applications accepted on Google’s new Glass wearable technology. Google has made clear that it is against their developer policies to approve any Glassware that has any sort of facial recognition technology. Therefore, Google will not make NameTag available through the company’s official channels. However, it could still be possible for the FacialNetwork.com to distribute the app themselves, and have users side load it. Plus, individuals using Glass could potentially “jailbreak” the technology and upload NameTag and begin to use it on a daily basis. Obviously, the issue of facial recognition has led some serious fears over the invasion of privacy, especially if the app could be used with Google Glass.

Invasion of privacy is a serious issue regarding NameTag and other application using facial recognition software. Legal and moral issues aside, NameTag says that their goal is not to invade user privacy. Tussy believes issues with privacy can be solved by having users sign up and create profiles on NameTag and choose to not have their profile shown in public searches. He states, “It’s not about invading anyone’s privacy; it’s about connecting people that want to be connected. We will even allow users to have one profile that is seen during business hours and another that is only seen in social situations.”[2] So, if a person does not want their information made available, they can actively sign on to NameTag and opt-out of the service. However, one has to know about the service in order to opt-out. Otherwise, people using the app can scan your face randomly when you walk pass them on the street. One argument is that it should be up to the person whether to opt-in to the service, not opt-out. That way, an individual would first need to create a profile and agree to have their information shared to the outside world.

Other privacy issues concerns question whether NameTag’s ability to access sex offender registries is a good thing. Sex offender lists are publicly accessible but some advocates conclude that public sex registries do not increase public safety. According to Kieran Mccartan, an associate professor in criminology at the University of the West of England, is one who questions whether access to such registries will harm social relationships, instead of build them. In an article in the Conversation, Mccartan writes, “The notion that you can check whether a new partner has offending history suggests a less trusting and more suspicious approach to relationships, as well as an attempt to foresee and future-proof any potential problems.”[3] Mccartan also question database maintenance, accuracy and reliability in the use of apps like NameTag. Instead of relying on an app, people should ask their date those pressing questions and base their future on those answers. NameTag’s angle is the program will help enhance people’s social lives and potentially protect individuals who want to know if someone is registered as a sex offender before engaging with them or allowing their children to be near them.

Individuals are not standing by and waiting for apps like NameTag to hit the market, some are taking action. U.S. Senator Al Franken from Minnesota, recently send a letter to FacialNetwork.com. In the letter he expresses his concerns with NameTag, noting that NameTag lets strangers get a broad range of personal information, done without the person’s knowledge or consent, which crosses a bright line for privacy and personal safety. Senator Franken concluded his letter by asking numerous questions regarding NameTag. Questions include whether NameTag will administer an opt-in program, rather than an opt-out program, how NameTag plans on addressing users who may be stalkers, how NameTag is addressing Google’s prohibition on facial recognition software for Glass, etc. The majority of questions come down to whether publicly available data should be easily accessed by others. One argument is that if a person chooses to post pictures on Facebook for everyone to see, he should not complain if others access the information. On the flipside, the opposing argument is individuals do not realize that by uploading their photos to Facebook they may be subjecting themselves to other outside program access.

Although there is plenty of excitement for future technologies like Google Glass, apps capable of using facial recognition software like NameTag will continue to alarm society. Sure, smartphones have cameras that where people could take pictures of strangers without their knowledge but the easy of accessibility of public information with a simple click can be disturbing. NameTag is only in the beta version and not ready for public distribution but the end result is inevitable and society will quickly be forced to wonder who is scanning their faces and what information is readily available for all to see.

[1] Press Release, FacialNetwork.com Announces Beta Release of “NameTag” the First Real-Time Facial Recognition App for Google Glass, http://www.nametag.ws/.
[2]Id. 
[3] Kieran Mccartan, The App that Checks Whether Your Date is a Sex Offender, The Conversation (Jan. 13, 2014), http://theconversation.com/the-app-that-checks-whether-your-date-is-a-sex-offender-21941.

 

Zuckerberg Calls Obama about the NSA

POSTED BY Stephanie Surette

On Wednesday, March 12, Mark Zuckerberg (Facebook founder) called President Obama to express his frustration with the NSA’s surveillance. The controversy around the NSA’s spying has been widely covered in the news since Edward Snowden released data in 2013 revealing the extent of the government agency’s electronic surveillance. So why did Zuckberg call now?

A report from The Intercept revealed some new details about the NSA’s past to “covertly hack into computers on a mass scale.” Originally, the NSA used this technology to gain information from targets where a traditional wiretap was not feasible for one reason or another. The NSA has allegedly accelerated this program and it can now be conducted on a mass scale as some aspects can now be done by a computer that were previously handled by a person.

The below except from The Intercept explains the NSA’s methods to “hack” into individual computers:

In some cases the NSA has masqueraded as a fake Facebook server, using the social media site as a launching pad to infect a target’s computer and exfiltrate files from a hard drive. In others, it has sent out spam emails laced with the malware, which can be tailored to covertly record audio from a computer’s microphone and take snapshots with its webcam. The hacking systems have also enabled the NSA to launch cyberattacks by corrupting and disrupting file downloads or denying access to websites.

Zuckerberg wrote on his Facebook the day after his conversation with the President: “When our engineers work tirelessly to improve security, we imagine we’re protecting you against criminals, not our own government.”  The White House confirmed that President Obama spoke with Zuckerberg, but did not provide details about their conversation.

The allegation that Facebook’s servers are being imitated by the NSA is a serious concern to the private company. Unfortunately, this is not the only recent example of private U.S. technology companies becoming tied up in the NSA scandal. This USA Today article highlights issues that U.S. technology companies are facing selling to foreign consumers because they allegedly turned over information to the NSA. Technology companies, and not just private citizens, have now become entangled in the NSA scandal.

Energy Harvesting: Capturing Ambient Energy to Fuel Wireless Devices May Raise IP and Property Questions

POSTED BY Rebecca Ferrante

Energy harvesting involves the collection of low grade ambient energy from the environment and converting it into usable electrical energy that can power wireless electronic devices.  The energy is sourced from radio frequency waves, environmental radiation, thermal gradients and light or vibration in the environment. As the world’s consumption of fuel grows exponentially, energy harvesting is one viable potential resource for alternative power.

Valued at $131.4 million in 2012, the energy harvesting industry segment is estimated to increase to $4.2 billion in 2019 with growth based on global demand for sensors and wireless sensor networks paired with the driving need for clean energy.  Current applications include vibration-based wireless train monitoring, oil field monitoring systems, windup laptops for use in remote regions, wireless light switches and temperature control, environmental monitoring and alert systems for detecting pollution, forest fires, intrusion, or movement around a border fence.  Newer advancements are marked by mechanisms that charge by human movement including not only the average cell phone, by pacemakers and other electrical biomedical devices.

Currently, little regulation exists that adequately addresses this broad and varied market since the industry is fairly new and high growth, coupled with the fact that the technology is being developed and applied in a myriad of ways.  To help overcome this challenge, the University of Southampton coordinated the Energy Harvesting Open Access Data Repository to collect and post data from researchers and to assist in developing a unified framework from which developers could build while applying established best practices.  As a booming young industry however, one might question the validity of an open source repository that hosts research data, requiring contributors to share their findings for “unrestricted use” subject only to acknowledging the contributor.  Here, intellectual property rights and patent infringement concerns take a back seat; as does commercial competition that operates to restrict cost.

Because ambient energy is plucked from the environment, energy harvesting is often called energy scavenging and as the term implies, likened to stealing.  This concept is promulgated in part by urban legends of radio authorities sent out to diagnose pockets of weak signal strength, only to find a nearby homeowner with fluorescent lights fueled by coiled wire that captured and channeled the station’s radio frequency waves from the air.  In 2013 however, a German student developed an electromagnetic harvester that collected energy from the air that re-charged a AA battery.  This energy is sourced from radio and television transmitters, cell phone networks and satellite communications systems, and so the question may be from whom is the ambient energy stolen and do they have any rights to it.

As technology continues to enable our transition to clean and renewable energy sources, regulations for commerce, safety and resource management will need to keep pace while promoting best practices and competition.

Netflix Refuses ISP Restrictions

POSTED BY Alex Zamenhof

Earlier this month, Netflix and Comcast announced a special arrangement that the two have entered into: namely, that Netflix streaming will be faster for people who have Comcast as their ISP. In a recent article, I found a fantastic description that breaks down exactly how video traffic on the internet works:

“Video traffic on the Internet, like the service that Netflix runs, is very sensitive to delays. As a result the Internet is built in such a way that content is distributed throughout the network in what’s known as content delivery networks, or CDNs. These services strategically place servers throughout the Internet and then they cache certain content, like streaming video, on these servers, so that when customers request a particular video it can easily and quickly be delivered to them. This reduces overall traffic on what’s known as the Internet backbone. And it results in a more efficient use of network resources. It also greatly improves performance and quality of service.”

Netflix has already built its own CDN (Content Delivery Network). The idea behind this is that Netflix would not have to pay a third party to provide its service to an ISP. However, big ISPs believe that Netflix should have to pay for the requisite increase in service necessary to stream effectively. While Netflix is trying to cut out the middle-man, the big ISPs are aiming to charge Netflix just as if it were a CDN itself. How do they achieve this? By dropping not so subtle hints that should Netflix refuse their offers of deals, then Netflix streaming may experience a slower connection on their servers.

This is tantamount to extortion in my book. Netflix is stepping on the toes of big ISPs, and they recognize this. With Comcast’s imminent merger with Time Warner, the ISP provider is slated to become the biggest provider in the US, owning some 30% of the market. Aside from antitrust issues, which are already being lobbed, it creates problems for emerging services like Netflix, Hulu, and Amazon who are all on the verge of premiering their own video streaming services, networks, or other similar things that have historically been the sole ground of the ISPs.

Netflix has made the logical statement that users who stream using Netflix’s own CDN experience significantly better viewing – a fact that is not in dispute by ISPs. This is now the critical juncture, where either Netflix tries to stand up for itself, or gets amalgamated into one or more of the existing ISPs.  Unfortunately, because Netflix is on top of its game in the streaming world, it is true that ISPs must spend more money to upgrade their servers to keep pace with Netflix – therefore, it does make sense that those ISPs want a portion of the pie in exchange for upgrading their servers. I believe that in the near future, we will either see one or two ISPs dominate, or a whole host of choices: perhaps Netflix, Amazon, Hulu, Facebook, etc. will begin to pioneer their own subscription services to compete with the big ISPs. This would put the US more in line with other nations around the world, where there are a multitude of choices, rather than just a few big names.