The Tech Attorney Blog by Adam S. Feinsilver, Esquire

Where Techies, Business & the Law Converge…Or Clash

A federal appellate court handed Google (and potentially all other search engines) a big reprieve last Wednesday when the Court determined that Google didn’t violate US Copyright Law by displaying thumbnail-sized images of Perfect 10’s sexually explicit images.

Google’s Image Search is basically a web search for photos that are associated with the terms in the search query. On the other hand, Perfect 10 is in the business of selling titillating images of women, au natural, through magazines and its website. (Which company sounds like more fun to work for?)

Despite mounting pressure from Perfect 10, Google’s failed to stop Perfect’s pictures from popping up. Perfect 10 filed a complaint against Google in 2004. As part of the suit, Perfect 10 requested preliminary injunctive relief (asked the court to make Google “stop it now”).

The three judge panel determined that, since the thumbnails were only links to the actual images and not actual copies (”material objects”), the links weren’t directly infringing Perfect 10’s right to display its pictures. Since Google users would still have to navigate to Perfect 10’s site to get their hands on the full monty, Perfect’s right to distribute pictures wasn’t violated either.

It’s important to note one of the big differences here between copyright and trademark law. Someone visiting Google might not realize the image’s source is actually Perfect 10’s website. Whereas trademark law has provisions to avert consumer confusion, copyright law doesn’t. The two areas of intellectual property have different purposes (which are beyond the scope of this post).

The biggest blow to Perfect 10’s overall case was Google’s fair use defense. Basically, the Court concluded that Google’s use of the images is “transformative.” In the Normal People Dictionary, that means Google found a new way to use the copyrighted material. Parodies are often considered “transformative.” Google transformed the use into something that benefits the public.

No, I’m not saying Google gives us all quick access to “pROn.” I’m saying that that US Courts are starting to recognize the importance of tools such as Google in today’s culture. That’s one small step for the Net, but one giant leap for the judicial system.

As for the case - it heads back to the lower court to find out if Google knew of infringing copies of Perfect 10’s pictures across the Web and failed to withhold those sites from search results. *Sigh* As I said…one small step for the Net.

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In my experience, lawyers are very hesitant to call a duck a duck. It seems like the obligation to “zealously defend” your client comes to a grinding halt when the need to criticize another attorney arises. It’s a “don’t burn your bridges” concept taken too far (to the “whimpy” level).

Lawyers have an ethical responsibility for policing themselves and each other. We are officers of the court. When another lawyer or a government official (note that Congress is made up mostly of lawyers) is wrecking our stuff (the law), lawyers have an obligation to step up. Thank you, Harvard Law Class of 1982, for doing just that!

56 members of Harvard Law Class of 1982 put their convictions about U.S. Attorney General Alberto Gonzales in an open letter to the Attorney General. It was published yesterday, May 15th in the Washington Post. It’s a good read and a rare, good day for attorneys. The letter even got Dugg! It’s nice to see something that actually counters the stereotype every once in a while.

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That’s right! Bob Zitter, HBO’s chief technology officer, has been spending too much time brainstorming. Apparently, a cranial Laffer effect set in. Mr. Zitter apparently believes that he has come up with a solution to the problem with DRM.

Let’s back up for a ’sec for those unfamiliar with DRM. DRM is digital rights management. Imagine it’s 1990. You just bought “Ice, Ice Baby” on cassette and tried to play it in your “5.0″ (Mustang), but it won’t play because the tape is made only for the tape deck at home. DRM is what stops you from putting your iTunes downloads on your Zune. It’s what prevents you from ripping a store-bought DVD to your laptop without the right (or “wrong”) tools. It’s what keeps you from doing what you want with the movies and music you’ve actually paid good money for. Sure, you can play the movie you bought on DVD at home. Do you want to make a backup because the kids always scratch the DVDs…or so that you can have one in the car? No dice. No, we don’t like DRM.

Well, Bob’s solution goes right to the source and solves the problem! You don’t even have to install anything. Bob’s solution is a simple name change. He’d like to change “digital rights management” to “digital consumer enablement.” Zitter claims that his term is more accurate because it gives consumers ways to use media content in new ways, such as watching it on your video iPod. By calling DRM “digital consumer enablement,” consumers will realize that DRM is a good thing. Doesn’t that make you feel warm and fuzzy?

Here I was thinking that Apple gave us the ability to watch video on an iPod, but it has actually been DRM this whole time! That’s really thinking outside of the box, Bob. Instead of changing the technology, you fixed the real problem…people. I’m going to pick up some broccoli on the way home. My kids are going to love their green chocolate trees.

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Tech Tips – May 2007
Lawyers Get Pwned by Digg

Lawyers Are Out of Sync
Most lawyers don’t know squat about technology, so it’s no shocker that they can’t figure out the geek counter-culture. (Yes, it’s fun to step out of my “lawyer” shoes and point the finger.) After logging into Digg and finding the code for cracking HD-DVD copy protection splattered all over unrelated news stories, I knew that something screwy was afoot. My first thought was “Cool! Digg’s getting publicity.” A few seconds later, I was trying to figure out what the big deal was. Apparently, Gary Gnu was right. “No gnews” really is “good gnews.”

4 8 15 16 23 42-Wait…That’s not It!
Let’s do a quick recap of the story. AACS (Advanced Access Content System) key for unlocking almost any current HD-DVD was posted on the Digg.com social news site by one of its million-plus registered users. Digg initially complied with a demand letter from AACS requesting removal of the key from Digg.com. In response, the Digg community posted thousands of messages throughout the site containing the key and flaming (lambasting) Kevin Rose, Digg’s founder. Rose and Digg CEO Jay Adelson decided to stand behind its members, allow the HD-DVD code posts, and accept the legal repercussions. The circus left town and Digg has returned to “virtually” normal.

In theory, Digg was faced with a situation where they could either have wound up outgunned in a legal suit or simply removed the posts to the potentially infringing material. Well, common lawyer-sense would tell you to take down the posts and avoid the legal fallout.

A lawyer who actually understands the community would see the bigger picture. Of course, it’s easy to say what I would have suggested in hindsight…so I will. Digg should have explained the foreseeable fallout to the AASC. Even though the lawyers couldn’t figure it out for themselves (there’s no form letter covering this), the clients should have been able to see that leaving the issue alone would have avoided the outbreak.

Purely as a marketing move, reversing the censorship decision was brilliant. In reality, I think the decision to reverse course was made to save the company (or at least its integrity). In Digg’s world, caving into AACS would go over as well as a skunk in a steakhouse. The publicity was just a byproduct of a catch 22.

TWIT, Wired, Boing-Biong, GeekBrief and the rest of the tech outlets were all over the story. It’s great tech fodder. The big media outlets must have thought they were going to miss the boat…again. Articles later turned up on the New York Times, Forbes, Money, Market Watch, and CNN websites. The only glitch in the system was that there really wasn’t any substance behind the story. The code was on the Net months ago.

Legal Mumbo Jumbo
The Digg community posts rambled on about free speech. Lawyers seem to feel that Digg is unlikely to succeed on a DMCA (Digital Millennium Copyright Act) lawsuit. I disagree with both sides and see it as a trade secret issue.

All rights that come to mind have restrictions. Free speech isn’t omnipresent. If you write a book, I can’t get around copyright laws by posting the book on my website and claiming “free speech!” Even if the First Amendment were relevant, a “fair use” defense would be tenuous at best. The hexadecimals aren’t newsworthy.

The entertainment industry loves leaning on the DMCA in its ongoing efforts to avoid figuring out how to survive the digital age. It’s not applicable to the Digg story for two reasons. First, Digg didn’t give users a program (or “tool” in DMCA terms) for cracking DVDs as is the case in most relevant DMCA lawsuits. Second, the 32-bit hexadecimal code can’t be used on its own for cracking HD-DVDs. Directions weren’t even posted. (Even with a program, the directions, and the key, few of us, at this point, would take the time to rip a 9 GB disk just to save a few dollars.) Someone on TWIT (the “This Week in Tech” podcast) commented that more people have the code than an HD-DVD player.

The code was nothing more than a trade secret. If Digg allowed the distribution of a crack (an application to circumvent copy protection), then there would be a DMCA issue here. The code is only a string of numbers and letters. Once that string is out of the bag, it can’t be put back in. In other words, the code loses its protection. It is no longer a “trade secret.” Since the code was posted around the Net back in February, Digg didn’t expose a trade secret.

Lawyers Can’t Compute
As someone who grew up on computers, it’s kind of funny and pathetic at the same time to see lawyers fumble around with today’s younger generation (what letter are we on?). It seems like most lawyers either mentally withdrew from the tech community in law school or never were a part of it. Then, they graduate, buy a Blackberry and suddenly are “733+” and capable of counseling businesses involved in emerging online technologies. I just listened to a legal podcast with a tech lawyer. She said that she is a “unique” computer user because she would look for a music video on-line instead of on TV. That must be hard to do from her home in 1995 with her 56K modem. Talk about being out of touch with the mainstream!

In most cases, advising a client to remove a potentially infringing item from a website would be the right move. Any good attorney wants to minimize the client’s exposure to a lawsuit. This isn’t “most cases.”

When the end users are tech-savvy teens and twenty-somethings and the product or problem involves music, video, videogames, social networking, blogging, pocasting, etc., the disconnected attorneys hide in “the law.” Well, how do expect that lawyer to know what to do when there’s a breakout on Digg? Sure, get out the big mallet and slam ‘em with a nasty demand letter. The legal system always works! (This is starting to feel like a recap of my RIAA rant.) Congratulations, you guys struck a hornet’s nest.

Knowing the law alone isn’t good enough for the tech world. When pop and tech culture is your business, make sure your lawyer speaks the language.

Copyright 2007 Adam S. Feinsilver, Esq.

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