Open Source at iTechLaw

If you can't be there, the next best thing is following Denise Howell's running commentary on the presentations. Check it out.

iTechLaw

Bag and Baggage

Lack of Corporate Structure "Achillies Heel" of Open Source?

The Open Source and Tech Community still doesn't seem to get it. Check out the articles on the Open Source/Patent spat brewing in the red hot model railroad indsutry. Both the eCommerce Times and VNUNetwork define the achillies heel of Open source as follows: "Because open source software lacks a corporate structure to handle legal issues, patent holders can go after individual developers or users of the application." Really? Does that capture the crux of the potential issues that arise from using Open Source software? A patent holder can always sue anyone to prevent them from making, using or selling their invention. What about the fact that it is developed, by design, by a broad, diverse, largely unknown group of individual contributors, such that it is impossible to know whether any of them might have contributed infringing code, knowingly or unknowingly. Or the potential viral effect of Open Source code on proprietary software, or the . . .
Shoot, if only we had a corporate structure.
Cease and Desist letter here.

Technonymous Doctiloquus

Technonymous Doctiloquus

Looks like FTC is going after the big dogs in enforcing the CAN SPAM act - a $45,000 judgement against a couple who can't pay. http://www.internetnews.com/xSP/article.php/3599796

ISP Right to Sue Under CAN SPAM Act

Although the CAN SPAM Act did not create a private right of actions for individuals or corporations to sue spammers under the act, ISP's have the right to do so. Under Section 7(g) of the CAN SPAM Act, an ISP may bring a civil action with respect to violations of section 5(a)(1), 5(b), or 5(d) or patterns or practices that violate paragraph (2),(3),(4), or (5) of section 5(a). Accordingly, corporations affected by significant SPAM should include in their contracts with ISP an affirmative obligation to pursue spammers under these provisions.

Swimsuit Model Ordered to Keep "Sexy Little Things" in the Drawer

A Sports Illustrated swimsuit model was blocked from launching her own line of panties emblazoned as "sexy little things" when a judge ruled that Victoria's Secret could sue her for trademark infringement. U.S. District Judge Harold Baer said Tuesday that Victoria's Secret appeared to acquire priority in the trademark use of "SEXY LITTLE THINGS" because it had used the label on lingerie sold online and through its retail stores and catalogues since July 28, 2004.

The judge refused a request by fashion model and actress Audrey Quock to declare that Victoria's Secret had no right to stop her from launching a line of women's underwear called "SEXY LITTLE THINGS."

The case is significant in that it provides this new blog with an opportunity to repeatedly use terms like "SEXY LITTLE THINGS", "VICTORIA'S SECRET" and "SWIMSUIT MODEL".

The "Too Small to Tarnish" Defense

Alternative title: "If You Dilute in the Woods, and Nobody Notices . . . . A U.S. District Court Judge has ruled that the Black Bear Micro-Roasterie can continue to use the name "Charbucks Blend" for a particular roast of its coffee, apparently siding with the claims of the defendant that they are simply too small to dilute Starbucks (pun intended), or otherwise tarnish the famous mark. "We're so small that there's no way, even if we wanted to, that we could cause harm to Starbucks," Jim Clark told Courttv.com in a telephone interview. Starbucks investors reacted by having another latte.

When the Barber Tells You That You Don't Need a Haircut . . .

. . . you probably don't. Same goes for what to do with those anonymous, annoying internet posters on message boards that are slamming your company. Experienced counsel will advise clients to proceed with caution, because they are much more likely to draw more attention to those unwanted comments than they would have ever received in the absence of a court challenge, and the client may very well emerge looking like a paranoid psycho control freak, rather than a mature and confident institution that is above paying attention to some ex-employee with an ax to grind. There are exceptions, of course, but for the most part, ignoring them is the answer. Consider the case of Juniper Networks, who recently sued anonymous posters to www.lightreading.com, who said such things as "this is a very unethical company" (Gasp!). The remarks have now been republished again and again, and finally garnered an article in Business Week. What would do more harm to the company's reputation, the remarks being posted on some obscure corner of the net (sorry lightreading.com), or having them be the subject of an article in Business Week? It's a tough one.

Google Sued for Trademark Infringement Based on Third-Level Subdomain

Eventually, various lawsuits against Google will define every conceivable issue of trademark infringement in the world of domain names. This one is a real stretch. This is a challenge to the use of JewsForJesus.Blogspot.com. Unlike the Keyword cases (GEICO, American Blinds, Rescuecom and JTH Tax), this lawsuit is based on a Blogspot blog URL, namely JewsForJesus.Blogspot.com. A very well reasoned analysis of the issues comes to us from Eric Goldman at CircleID.

Scalia High Court Comedian

Justice Antonin Scalia is 19 times funnier than Ruth Bader Ginsburg. According to wacky law journal The Green Bag, Scalia is good for 1.027 gags per arguement. But he's not the only funny man on the court. On Halloween, a light bulb exploded in the Court, prompting this repartee -

"It's a trick they play on new chief justices all the time," Chief Justice John G. Roberts Jr., who joined the court that month, said of the explosion.

"[Laughter.]"

"Happy Halloween," Justice Scalia retorted.

"[Laughter.]"

And then, the kicker. "We're even more in the dark now than before," Chief Justice Roberts said.

"[Laughter.]"

So it's not exactly Jay Leno, but the real shocker was when Clarence Thomas,who rarely speaks during oral agruement, came out with this one:

Thomas: "How many lawyers will it take to change that bulb"

Scalia: "How many Clarence?"

Thomas: "None, you can't find a lawyer that knows how to change a bulb, now if your looking for a lawyer to screw a bulb . . .

"[Laughter.]"

(O.K., we made the Clarence Thomas part up.)

On Anonymity

Simply stated, anonymity is the absence of identity. However, there are several variations of anonymity. A person may wish to be consistently identified by a certain pseudonym or 'Handle' and establish a reputation under it in some area, providing pseudo-anonymity. A person may wish to be completely untraceable for a single one-way message (a sort of 'Hit-and-run'). Or, a person may wish to be openly anonymous but carry on a conversation with others (with either known or anonymous identities) via an 'Anonymous return address'. A user may wish to appear as a 'Regular user' but actually be untraceable. Sometimes a user wishes to hide who he is sending mail to (in addition to the message itself). The anonymous item itself may be directed at individuals or groups. A user may wish to access some service and hide all signs of the association.

Anonymity is a powerful tool that can be beneficial or problematic depending on its use. Arguably absence of identification is important as the presence of it. It may be the case that many strong benefits from electronic anonymity will be discovered that were unforeseen and unpredicted, because true anonymity has been historically very difficult to establish. One can use anonymity to make personal statements to a colleague that would sabotage a relationship if stated openly (such as employer/employee scenarios). One can use it to pass information and evade any threat of direct retribution. For example, `whistleblowers' reporting on government abuses (economic, social, or political) can bring issues to light without fear of stigma or retaliation. Sensitive, personal, potentially damaging information is often posted to some USENET groups, a risky situation where anonymity allows conversations to be carried on completely independent of the identities of the participants. Some police departments run phone services that allow anonymous reporting of crimes; such uses would be straightforward on the network. Unfortunately, extortion and harassment become more insidious with true assurances of anonymity.

- 1993 L. Detweiler, Identity, Privacy and Anonymity on the Internet.