ICANN Takes First Step to Becoming a Global Content Regulator:


There has been wide coverage of ICANN's decision this week to adopt a new process for creating new global Top Level Domains (gTLDs). Publishing a clear, transparent and objective process is thought likely to result in a considerable expansion of gTLDs—although nobody really knows whether this means "quite a lot" or "many thousands”.
The decision endorses a 2007 report from GNSO Council, an ICANN structure that makes recommendations to the ICANN Board on gTLD policy.
Less attention has been given to one of the new tests ICANN will use when considering whether to approve a new gTLD, contained in GNSO's sixth recommendation:
Strings [meaning, new top level domain names] must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.
The report goes on to amplify on what it means by "generally accepted legal norms relating to morality and public order":
Examples of such principles of law include, but are not limited to, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination, intellectual property treaties administered by the World Intellectual Property Organisation (WIPO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).
Quite why intellectual property is included as an issue of "morality and public order" alongside the Universal Declaration of Human Rights isn't explained, and probably owes more to the lobbying power of the American music and film industry associations than anything else. That aside, not everybody is comfortable with ICANN making decisions on "morality and public order".
ICANN Board member Wendy Seltzer speaking for the At-Large Community (ALAC), that represents ordinary end users, commented:
[ALAC] expressed concern that putting these criteria into the gTLD approval process, even as opportunities for objection, injects ICANN into the business of making morality and public order decisions, or injects that into ICANN's processes in a way that, as ALAC put it, debases the ICANN process. And at-large does not want to see ICANN put into the business of adjudicating or even delegating the adjudication of morality or public order or community support. And so we hope that in implementation, these criteria can be kept sufficiently narrow so that they are both administrable and understandable and so that they do not involve ICANN, the organization, in making, or allowing to be made, determinations about any claim to generally accepted morality principles.
ICANN Board member Professor Susan Crawford agreed, going on to say:
[N]either national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses.
[...]
This wasn't done out of enthusiasm for the free market alone. The idea was also to avoid having sovereigns use the Domain Name System for their own content, control, desires. To avoid having the Domain Name System used as a choke point for content. Recommendation 6, which is the morality and public order recommendation, represents quite a sea change in this approach, because the recommendation is that strings must not be contrary to generally acceptable legal norms relating to morality and public order that are recognized under international principles of law. That's the language of the recommendation.
Now, if this is broadly implemented, this recommendation would allow for any government to effectively veto a string that made it uncomfortable. Having a government veto strings is not allowing the private sector to lead. It's allowing sovereigns to censor.
In the formal discussions, these issues are mainly debated in the abstract, but two key examples are bandied about in private: .jihad (which even the anti-censorship USA seems keen to prohibit) and .nazi (which is an example dear to the hearts of some European governments with strict anti-Nazi laws).
Civil libertarians supporting Susan Crawford's line argue that if governments are able to pressure ICANN into prohibiting .jihad (which has perfectly non-violent meanings in Islam as well as the terrorist connotations it has recently acquired in the West), then can a prohibition on .falun-gong be far behind?
Traditionalists among the Internet technical community might be less impressed with the cry to protect freedom of expression in top level domains, arguing that domain names—let alone top level domain names—are intended as identifiers in an addressing scheme, not as a medium of expression at all. However, even on this analysis there is cause for concern about the "morality string criterion"
Is it possible for a short phrase such as would be valid as a top level domain name to constitute an incitement to violence, or other generally accepted breach of public order, in and of itself? Does it not depend on how the domain is used? Does the objection to .nazi lie not so much in its identification of content that might relate to Nazi ideology and in history, but that it might be used by people sympathetic to the ideology?
Whether or not it is possible for a domain to inherently infringe principles of morality and public order, doesn't such a rule invite ICANN to investigate how such a domain might be used in any case? Surely it is inconceivable that ICANN would not consider the likely use of a domain. Is such an invitation a good idea? Do we really think ICANN is well equipped to perform this role?
If we accept that ICANN should consider the likely use of a top level domain, and weigh that against principles of morality and public order—not to mention intellectual property law—before deciding whether such a domain should exist, why should it stop there? Why shouldn't ICANN require the registries of gTLDs (including .com) to do the same at the second level? ICANN can impose terms on such registries by contract; the only thing that restrains it is a view that this is not ICANN's proper role or purpose. If we accept the principle that ICANN can adjudicate globally "generally accepted legal norms relating to morality and public order", why not require gTLD registries to enforce these principles at the second level? And why stop with new domains: wouldn't actual proof of "infringing" use be even more damning than speculation about how a new domain might be used in the future?
The string criteria debate may attract less attention than the creation of new TLDs, and may not immediately affect as many people as the introduction of Internationalised Domain Names. Nonetheless, history may yet come to view this as the watershed moment when the world first acquired a global Internet content regulator.
This article was cross-posted from the LINX Public Affairs blog

Posted by mikki at 12:07 PM | Permalink

Federal court enforces Facebook trade secret settlement with ConnectU:


[JURIST] A US District Court for the Northern District of California judge Wednesday granted a motion to enforce a previous settlement agreement between two social networking websites, Facebook and ConnectU. The ruling effectively ends the two companies' ongoing legal battle concerning ownership of source code forming the basis of Facebook, the popular social networking site. The two sides had agreed on a settlement in February, but ConnectU had sought to annul that agreement, arguing that Facebook had committed fraud in the procurement, material terms were missing, and the agreement did not reflect the parties' intentions. Judge Ware rejected ConnectU's arguments of unclear terms and fraud, writing:

Posted by mikki at 11:16 AM | Permalink

Judge Orders Legal Fees in RIAA v Andersen | Threat Level from Wired.com:


A federal judge is awarding Tanya Andersen, who defeated the Recording Industry Association of America's file sharing lawsuit, $108,000 in legal fees to compensate for defending herself against the RIAA.
The award, made public Wedesday by U.S. District Judge James A. Redden of Oregon, marks the second time that a target of the RIAA who beat a lawsuit was awarded attorney's fees. In August, a federal judge ordered the RIAA to pay $68,685 in litigation costs to two Oklahoma women whose case was dismissed.
Whether RIAA defendants who successfully defend such suits are automatically entitled to legal fees is on appeal to the U.S. Supreme Court. The dispute is whether judges must award fees to a prevailing party under the Copyright Act.
Judge Redden ruled (.pdf) that RIAA's arguments against legal fees were "misplaced."
"An award of attorney's fees to the prevailing party are 'the rule rather than the exception' under the Copyright Act, and 'should be awarded routinely,'" Redden wrote.
The RIAA dropped the case against Andersen last year after concluding her hard drive didn't contain purloined music tracks. The RIAA initially claimed a Kazaa shared directory that linked to her internet-protocol address was unlawfully distributing thousands of songs.
In response to the lawsuit against her, Andersen has countersued the RIAA in a case seeking class-action status to represent what her attorneys say is thousands of persons wrongly sued by the RIAA. That case has been dismissed three times, and its fourth try is pending.
Andersen attorney Lory Lybeck requested $300,000 and the RIAA suggested $30,000 was more appropriate. The award is upwards of $190 a hour.
The RIAA has sued more than 20,000 people for copyright infringement

Posted by mikki at 10:17 AM | Permalink

Brand Owners Express Concern Over Introduction of New Top-Level Domains:


Monika Ermert reporting on Intellectual Property Watch says: "Some think ICANN should have moved much faster to introduce new names in the Internet to join the likes of .com and .org. Others moan about the widespread trademark infringement they expect to occur when the private internet governance body introduces several long-awaited new top-level domains. But the prospect of news about the next round in extending the global domain name space has brought them all to ICANN's Paris meeting that might emerge as the largest in the organisation's history." The ICANN Board will decide on Thursday which Top-Level Domains will move and which ones will not.

Posted by mikki at 10:10 AM | Permalink

Canadian DMCA will criminalize emailing your kids' class photos to their grandparents:


Michael Geist continues his ongoing series on activities that will be illegal under Canada's new copyright act, the so-called Canadian DMCA (Bill C-61). Today, backing up DVDs and scanning school photos:

Diane, who is four years old, is a huge fan of the popular TV character Dora the Explorer. For her birthday, she received four Dora DVDs. Given Diane’s habit of scratching them, her dad has begun to create backup versions. That day, Diane brings home her kindergarten class photo, which was taken by a local photographer. Josee digitizes the photo and sends a copy to Diane’s grandmother.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 does not allow users to make backup copies of DVDs. The act of backing up the DVD is an infringement. Moreover, in order to make the backup copy, users must typically circumvent the copy-protection on the DVD, also an act of infringement.

For decades, Canadian copyright law has vested copyright in commissioned photographs – like school photographs – in the person who commissions the photo. Bill C-61 reverses that practice so that copyright now belongs to the photographer. (repeal of Section 13.2) Assuming the photograph came with an all rights reserved restriction, the act of distributing the digitized photo to Diane’s grandmother now violates the law. (Section 29.21 (1)(e))

I'm pretty sure that every Canadian reading Boing Boing knows about this law and what's wrong with it, and I hope you've all contacted your MPs. But the point of these posts is to help you communicate to your less tech-savvy friends about these issues. Did you email your grandmother a photo of your kids' kindergarten photos? Call her up and tell her that you won't be able to do it again with the grade one pics next year unless she calls up her MP and puts him on notice that he'd better oppose the CDMCA or lose her vote. Did your brother back up his DVDs to his laptop when he went away to university? Call him now and let him know that he'll be a criminal next year unless he calls and writes to his MP and lets her know what he thinks of Bill C-61.

Link

Posted by mikki at 06:09 AM | Permalink

China begins anti-monopoly investigation into Microsoft, software companies:


[JURIST] China's State Intellectual Property Office (SIPO) Wednesday announced an anti-monopoly investigation into Microsoft and other international software companies suspected of dominating the Chinese software market, unfairly raising prices and bundling software. Software companies will likely face increased liability for alleged anti-competitive practices beginning August 1, when a new anti-monopoly law takes effect. Officials at Microsoft China said that they did not know about the investigation. AFP has more.

In February, the European Commission (EC) fined Microsoft 899 million euros for failing to comply with a 2004 order requiring the company to share technical information with competitors. In response to the European decision and other judgments, the corporation has instituted an Antitrust Compliance Committee. In January, the European Commission began an investigation into new allegations that Microsoft has misused its market position. Last month, Microsoft announced it had filed an appeal with the European Court of First Instance, seeking to annul the fine.

Posted by mikki at 09:40 AM | Permalink

Judge Takes Hard Line in First Economic Espionage Sentence:


On Wednesday, Judge Jeremy Fogel became the first judge in the U.S. to
sentence a defendant convicted under economic espionage statutes.
Xiaodong Sheldon Meng was hit with a 24-month sentence, the maximum
under a plea deal in which he admitted possessing night vision software
that he used to benefit the Chinese government. While Fogel noted Meng's
remorse, the judge stressed the importance of sending a message to other
would-be thieves of American technology.

Posted by mikki at 09:34 AM | Permalink

Federal Judge Rules 'Patent Troll' Must Pay $3.8 Million in Attorney Fees:


Chrysler and Mercedes-Benz have been awarded almost $4 million for attorney fees after beating back a patent infringement suit brought by one of several interlocking companies whose "primary source of income is from litigation settlements," according to a Wisconsin federal judge. The automakers' opponents were companies controlled by Texas entrepreneur Erich Spangenberg. A Kilpatrick Stockton partner described the Spangenberg companies as "patent trolls," which exist solely to acquire and enforce patents.

Posted by mikki at 09:33 AM | Permalink

TracFone wins another DMCA round:

Tracfone Wireless, Inc. v. GSM Group, Inc., --- F. Supp. 2d --, 2008 WL 2215059 (S.D. Fla.) (magistrate)

Following the lead of an earlier case, the court held that buying plaintiff’s prepaid wireless phones, then reconfiguring them so they could be used on networks outside the US, violated the DMCA. Phones are sold below cost in order to sell the airtime cards, and defendants’ practices mean that phone buyers don’t need to buy the airtime cards. The procedure allegedly involves the “alteration, erasure or removal” of TracFone’s software.

Tracfone sued for breach of contract, trademark infringement, unfair competition, copyright infringement, circumvention, trafficking in circumvention technology, false advertising, and generic state torts.

Defendants argued that the Librarian’s §1201 rulemaking provided them with an exemption for circumvention that enables wireless handsets to connect to a wireless network, when circumvention has the “sole purpose” of lawfully connecting to a wireless network. The magistrate, following the earlier—uncontested—case, held that since defendants sold the handsets for profit, they didn’t have the “sole purpose” of connecting to a network. As I said before, I call shenanigans; the exemption only has meaning if it allows people to open the phones and resell them, because otherwise the exemption is useless. “Sole purpose” should refer to whether there’s any relationship to copyright infringement—see also the Lexmark and Chamberlain cases.

The court also refused to dismiss the state-law deceptive and unfair trade practices claims. The argument was that buying TracFone phones in bulk, removing the software, then reselling the phones as new was a deceptive trade practice. The court found that trademark infringement is an unfair and deceptive trade practice that triggers state law. (Let me get this straight: removing restrictions on the phones, so they’re more useful to consumers, is an unfair trade practice. Look, I’m all for consumer protection, but TracFone’s practices don’t protect consumers, they protect its business model. To the extent that defendants’ practices invalidate the warranty, that needs to be disclosed to avoid trademark infringement and consumer deception, but I’d sure like to know how many warranty claims defendants’ customers are likely to make. I think the motion to dismiss was properly denied, but unless there are some other facts present I wouldn’t think this would survive summary judgment.)

Posted by mikki at 04:13 PM | Permalink

Bit Caps, Consolidation, and Clearwire:


The news that Comcast, Time Warner, and AT&T are all considering capping use of their networks -- so that "overuse" would trigger a charge -- has prompted intense discussion of just why these network operators are moving in this direction. One camp suggests that these operators have to do *something* to manage congestion, and because any protocol-specific discrimination plan raises howls of protest from the Net Neutrality side of the fence adopting bit-usage discrimination schemes is inevitable. It's the least-bad approach, following this view. More...

Posted by mikki at 12:41 PM | Permalink

FTC Halts Cross Border Domain Name Con Artists:


A U.S. District Court Judge has ordered a halt to the illegal practices of Canadian operators who deceptively posed as domain name registrars and sent bogus bills to thousands of U.S. small businesses and nonprofit organizations for their annual "WEBSITE ADDRESS LISTING." Many of the businesses and nonprofits believed they would lose their domain names unless they paid the bill, so they paid. The Federal Trade Commission alleged that in most cases the defendants did not provide domain registration services, did not provide the "search optimization" services it claimed to provide, and bilked small businesses and nonprofits out of millions of dollars. More...

Posted by mikki at 12:39 PM | Permalink

Regional Internet Registries Appeal for IPv6 Investment at OECD Conference:


Ministers from more than 40 countries are discussing the future of Internet economy at OECD meeting in Seol, Korea, 17-18 Jun. Discussions include security, competition, and strengthening the role of the Internet economy in enhancing social and economic development as well as agreement on new ways to improve global co-ordination and co-operation. The Number Resource Organization (NRO) today issued an appeal for investment in IPv6 infrastructure. More...

Posted by mikki at 12:37 PM | Permalink

CIRA Creates Backdoor WHOIS Exceptions for Police and IP Owners:


Earlier this year, I wrote glowingly about the new CIRA whois policy, which took effect today and which I described as striking the right balance between access and privacy. The policy was to have provided new privacy protection to individual registrants — hundreds of thousands of Canadians — by removing the public disclosure of their personal contact information (though the information is collected and stored by domain name registrars).

Apparently I spoke too soon. Faced with the prospect of a privacy balance, special interests representing law enforcement and trademark holders quietly pressured CIRA to create a backdoor that will enable these two groups (and these two groups alone) to have special access to registrant information. In the case of law enforcement, police can bring cases to CIRA involving immediate risk to children or the Internet (ie. denial-of-service attacks) and CIRA will hand over registrant information without court oversight. In the case of trademark holders (as well as copyright and patent owners), claims that a domain name infringes their rights will be enough to allow CIRA to again disclose registrant information.

This represents a stunning about-face after years of public consultation on the whois policy. While the law enforcement exception appears to be narrowly tailored, the exception for trademark, copyright, and patent interests undermines a crucial part of the whois policy, namely compliance with Canadian privacy law (the policy now arguably violates the law) and the appropriate balance between privacy and access. For example, consider a Canadian that registers companysucks.ca (name your company) as a whistleblower site about a particular company. They understandably wish to remain anonymous to the general public since disclosure of their personal information could lead to negative repercussions. Under the new CIRA policy, if they use fake registrant information, they risk losing the domain. On the other hand, the backdoor exception means that the trademark holder can easily smoke out the identity of the registrant as CIRA will simply hand over this information.

Just over six weeks ago, CIRA celebrated its one millionth domain name registration and claimed world class status. Today, the organization has betrayed the very principles of consultation upon which it was built and sent a discouraging message that special interests matter more its own members.

Posted by mikki at 10:53 AM | Permalink

FTC opens Intel antitrust probe:


[JURIST] The US Federal Trade Commission (FTC) [official website] has begun a formal antitrust investigation of US computer chip manufacturer Intel Corporation [corporate website; JURIST news archive]. Intel's chip manufacturing rival, Advanced Micro Devices (AMD) [corporate website] has claimed for years [AMD advocacy website] that Intel has been engaged in uncompetitive business practices, but this is the first formal action taken by the FTC. The probe constitutes a reversal of course for the Commission, which last fall was reported to have rejected the option of an investigation [JURIST report]. The New York Times has more. The San Francisco Chronicle has additional coverage.

In a statement [text] issued Friday when the probe was publicly disclosed, Intel said it has and will continue to provide information to the FTC and that it has not acted illegally:

Since 2006 Intel has been working closely with the FTC on an informal inquiry into competition in the microprocessor market and has provided the commission staff with a considerable amount of information and thousands of documents.

Consistent with its standard practice Intel will work cooperatively with the FTC staff to comply with the subpoena and continue providing information. The company believes its business practices are well within U.S. law. The evidence that this industry is fiercely competitive and working is compelling.