Finally, Big Guns Fight the RIAA

In the past, it's been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA's strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university. However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA's efforts in a court filing, where it's noted that the very basis for many of the RIAA's lawsuits is very likely unconstitutional. He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called "theft" in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That's because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law. [TechDirt]

High Court Grants Marriage Rights For Same-Sex Couples

The Connecticut Supreme Court grants same-sex marriage rights. The state Supreme Court's 4-3 decision Friday that same-sex couples have the right to marry swept through the state with the force of a cultural tidal wave. While lead plaintiff Beth Kerrigan and her partner -- soon to be wife -- embraced and sobbed after learning of the ruling, opponents vowed to pursue a long and complicated route to change the constitution to ban gay marriage. The Supreme Court released its historic ruling at 11:30 a.m. Citing the equal protection clause of the state constitution, the justices ruled that civil unions were discriminatory and that the state's "understanding of marriage must yield to a more contemporary appreciation of the rights entitled to constitutional protection." "Interpreting our state constitutional provisions in accordance with firmly established equal protection principles leads inevitably to the conclusion that gay persons are entitled to marry the otherwise qualified same sex partner of their choice," the majority wrote. "To decide otherwise would require us to apply one set of constitutional principles to gay persons and another to all others." A relevant comment about that topic from the Connecticut Supreme Court ruling:

Although we acknowledge that many legislators and many of their constituents hold strong personal convictions with respect to preserving the traditional concept of marriage as a heterosexual institution, such beliefs, no matter how deeply held, do not constitute the exceedingly persuasive justification required to sustain a statute that discriminates on the basis of a quasi-suspect classification.

Apple Finally Realizes That NDAs For Developers Are A Bad Idea

It was definitely surprising to see Apple trying to enforce an NDA to stop iPhone developers from talking about their applications, so it's nice to see Apple (for once!) respond to the backlash by dropping the NDA. However, the company's explanation for why it had the NDA in the first place doesn't make much sense:

We put the NDA in place because the iPhone OS includes many Apple inventions and innovations that we would like to protect, so that others don't steal our work. It has happened before. While we have filed for hundreds of patents on iPhone technology, the NDA added yet another level of protection. We put it in place as one more way to help protect the iPhone from being ripped off by others.

It's good that Apple has recognized that such NDA's significantly limit its developers. It's tough to have much of a developer "community" when said developers are barred from communicating.

House Follows Senate In Giving The President A Copyright Czar

From TechDirt: While failing to do much of anything (other than fingerpointing) to deal with the economic crisis we're facing, the folks in the House did spend some time easily passing the ProIP bill that the Senate passed last week. So, now we just have to wait for the President to sign it, and the entertainment industry gets their own person in the White House whose job it is to prop up their business model. Hell, if Wall St. gets one of those, why not the entertainment industry?

Sad News - Glider Agrees to Pay Blizzard $6M in Bot Lawsuit

MDY, the makers of the World of Warcraft Bot Glider, has agreed to pay Blizzard $6M in the on going lawsuit brought by Blizzard. MDY realized it could owe more in damages following Janaury's (2009) trial, so it proposed this agreement. From Virtually Blind's article on the MDY v Blizzard Case:

This judgment does not entirely conclude the matter. Issues still slated for trial in January include whether MDY’s sales of Glider violated the Digital Millenium Copyright Act and whether MDY’s owner Michael Donnelly can be held personally liable for the $6,000,000 judgment.

Beyond trial, of course, there will almost certainly be an appeal to the 9th Circuit on the issue of liability, which would negate the stipulation, and thus the $6m damages judgment, if MDY prevails.

It's a sad day for us all when corporate interests override a person's fair use rights on his own computer.

On Fire In the Operating Room

MSNBC brings to our attention the latest under-reported operating room "accident" - surgical fires! I, for one, never thought that I might actually catch on fire while being operated on. It turns out, however, that surgical fires are at least five times as common as once thought, affecting between 550 and 650 patients a year, including 20 to 30 who suffer serious, disfiguring burns. Every year, one or two people die this way. In Pennsylvania, a state in which hospitals are required to report medical errors, fires occur in one in every 87,646 operations, according to the latest 2007 data. That amounts to 28 fires a year in Pennsylvania alone and allows researchers to estimate with greater certainty the incidents in the rest of the country. Surgical fires are still a tiny fraction of the 50 million surgeries performed each year. An excerpt of one patients horrifying tale (emphasis mine):

Rita Talbert's operation was supposed to be a simple thyroid surgery, three hours, in and out, in the spring of 2005. Instead, the Stafford, Va., woman woke up a week later in intensive care, in agonizing pain and horrified at the face she saw in the mirror. “I didn’t know it was me,” said Talbert, now 62. Her chin was gone; her nose was deformed. Her mouth was virtually melted, so damaged that after a dozen reconstructive operations, she still has trouble eating, drinking and breathing. There’d been an accident, the doctors explained. An electrosurgical tool had ignited oxygen inside a mask under surgery drapes during the operation, sparking flames that left second- and third-degree burns from Talbert’s chest to the top of her head. "It just caught fire," she said, still incredulous at the idea. "They didn't even know it had caught on fire."

The root problem seems to be one of communication between the surgeon and the anesthesiologist. In most incidents, the surgeon was not informed that oxygen (O2) was flowing under the surgical drapes. The problem is exacerbated when the surgeon does not inform the anesthesiologist he is going to power on a electrical device in the surgical area. Oxygen concentrations of 50 percent and higher will create a flash fire. About 65 percent of surgical fires occur on the upper body or inside a patient's airway, another quarter occur elsewhere on the body and less than 10 percent actually occur inside the body cavity. Whatever the source, the head and neck region is grimly suited to hosting fires, especially in a high-oxygen atmosphere. There’s the vellus, the peach fuzz on your face and head - each tiny hair burns like a tiny sparkler and propagates a ripple of flame across the face.

Will Spore DRM Become EA's Rootkit Moment?

With the news coming out that some purchasers of the video game Spore have filed a class action lawsuit against EA for its inclusion of SecuROM DRM, it's reaching the point where you have to wonder if this is becoming EA's "rootkit" moment. The parallels are there. Both involved an overly draconian form of DRM that severely limited how a "purchased" product could be used. Both involved hidden files installed on a computer -- and both resulted in massive backlash from consumers, and a very slow response from the company. And, of course, the rootkit resulted in class action lawsuits as well. At some point, perhaps, companies will start to realize that treating your customers as criminals is probably a bad idea.

Apple Stifles Developer's Free Speech By Imposing NDA on Rejections

I've signed many NDA's (non-disclosure agreements) in my career as a software developer. It's a common practice for many companies, especially those dealing with new technology. However, I've never been asked to sign an NDA for being rejected for a job. If you're a developer and Apple rejects your iPhone application from its App Store, the company wants you to shut up and get over it.

Apple's serious about it: The company has extended the iPhone non-disclosure agreement, which prohibits application developers from discussing programming tips, to include rejection letters as well. Some developers in the past have shared their rejection letters on the web, but now, according to MacRumors, rejection letters include a clause that reads, "THE INFORMATION CONTAINED IN THIS MESSAGE IS UNDER NON-DISCLOSURE."

Score one for Android.

YouTube To Ban Terrorist Videos

Recent Article on TechDirt - YouTube Bans Terrorism Videos; Don't You Feel Much Safer?

Back in May we wrote about Senator Joseph Lieberman demanding that YouTube remove a bunch of videos of terrorists. At the time, YouTube reviewed the videos in question, and took down the ones that violated the site's terms of service, but left most of them up, noting that the ones they left up did not promote hate speech nor show violence. As we pointed out at the time, trying to ban terrorists from posting videos to YouTube seems incredibly short-sighted. First, it won't work. Those videos will quickly pop back up on other sites that won't take them down. Second, most of those videos are preaching to the choir. It's unlikely that very many people are being recruited to the terrorists' causes by a grainy video on YouTube. Third, letting terrorists post their videos to a mainstream site like YouTube should help authorities figure out who's posting the videos and where they're coming from. Fourth, and most important, one of the key founding principles of this country is the right to free speech, no matter how much one might disagree with that speech. But, part of that principle is that it allows people to respond. So, yes, the videos may be pure propaganda, but there's no reason that people can't respond to the videos and show why they're propaganda and wrong. Confronting your critics is a reasonable stance. Demanding that they cannot speak is not. Yet, a bunch of folks have been sending in links to a story claiming that Google has now caved to Sen. Lieberman, and will now ban terrorist videos on YouTube. The article says that YouTube's new terms of service will ban footage that "advertises" terrorism or "extremist causes," which seems pretty broad, and certainly open to abuse. The article describes some videos that show how to commit violent acts -- but those were already banned by YouTube, so that's rather misleading. These new terms are more disturbing. It's not going to stop the videos, it's just going to make it harder to keep track of them, harder to counter them -- all while making the terrorists feel more legitimate. Terrorists should be tracked down and stopped -- absolutely. But we should be dealing with the actual problem of terrorists, not some videos they made.

Anonymous Newspaper Commenters Protected By Same Law That Protects Reporters' Sources

From TechDirt:

While other countries often don't respect the right to be anonymous, the US has shown a strong willingness to protect anonymity rights. And, here's another such case, but for a somewhat different reason. Gigalaw points us to the news that a court has ruled that the Billings Gazette newspaper doesn't need to reveal anonymous commenters, relying on the same state (not federal) law that protects reporters in the state from having to reveal sources. The law specifically says that news organizations are protected from being forced to disclose "any information obtained or prepared" by the news organization -- and the identify of anonymous commenters apparently qualifies.

Can You Sue for a Backlink?

Here's an interesting idea... suppose someone creates a link to your site, but you don't want that link pointing to your site? There is nothing, inherently wrong with link (for example, it won't affect your SEO), you just don't like the site or company the link comes from. What do you do? In case of a Sheboygan woman, the city of Sheboygan sent a "cease and desist" letter to have the links removed. The woman, Jennifer Reisinger, says she felt intimidated by the city, so removed the links. Reisinger alleges her First Amendment rights were violated by the city. She seeks $250,000 in compensatory damages, unspecified punitive damages and unspecified declaratory relief. After reading the article, I gotta say I agree with Ms. Reisinger. It seems to me like the mayor and his staff were trying to retaliate against her because of her (failed) effort to have the mayor recalled. I'm very interested to see how this turns out. Read the full story: Sheboygan women files landmark case over Web links