Anonymous Posting

There has been some talk lately about eliminating anonymous posting. I find this argument too repulsive to behold. But the proponents of such legislation are correct to some degree - people are hurting others by posing as other people. This needs to be stopped. There are laws in place but this needs to be addressed carefully. I don't want these actions to be automatically treated as criminal behavior but posing as others cannot be considered acceptable. As for example this case in Arizona:

When he finally confessed to creating a fake porn profile for his son's assistant principal, Robert Dale Esparza Jr. of Gilbert, Arizona, "sort of laughed," says Dennis Ogorchock, a detective with the Maricopa County Sheriff's Office Computer Crimes Unit. But soon, Esparza may be laughing from a jail cell. Last year, Esparza created the profile of Frank Hendricsen, assistant principal of Gateway Pointe Elementary School, where his son attended, using the faculty member's full name and photos as a revenge prank, the detective told msnbc.com in a phone interview.
Dad busted for fake porn profile of kid's principal

Finance Group v Cox - Is there a positive outcome?

Jesse Jenike-Godshalk wrote a pursuasive piece that the Finance Group v Cox ruling was not as bad as it seemed on first blush. First, the judge ruled that opinion based blog posts are covered by the First Amendment.

the judge stated that blog posts, by their very nature, are usually “opinions” and not provable assertions of fact. Such “opinion posts” are protected under the First Amendment and are not actionable as defamation—regardless of whether the writer is “media.”

The Judge wrote that the:

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of
(1) any education in journalism;
(2) any credentials or proof of any affiliation with any recognized news entity;
(3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest;
(4) keeping notes of conversations and interviews conducted;
(5) mutual understanding or agreement of confidentiality between the defendant and his/her sources;
(6) creation of an independent product rather than assembling writings and postings of others;
or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”

This is very interesting. Except for points 1 and 2 these are standards that any blogger can meet. It points to ways independent writers can protect themselves: keep your notes and do your own research.

There's a lot more. If you're interested in the case I highly recommend reading the article.

Bloggers are not Protected by the First Amendement Freedom of Press Clause

Another travesty of justice, a blogger is sued by the company she is lambasting in her blog. The Federal judge rules that the blogger (Crystal Cox) in Finance Group v. Cox is not a journalist and is therefore NOT "entitled to the protections that media defendants enjoy in libel cases."

[Judge] Hernandez held that, under Oregon law, non-media defendants in libel cases are not entitled to any First Amendment protection and thus can be found liable even if they take reasonable care to assure the accuracy of their statements.

This minority view is rooted in the fact that all of the U.S. Supreme Court cases establishing First Amendment protections in libel cases involved news media defendants. While most state courts have held that the reasoning in these cases applies to non-media speakers, a few have clung to the view that private speech about matters of private concern is not constitutionally significant.
Troubling rulings paved way for blogger’s libel conviction

More than that, the Freedom of the Press clause, at the time of the signing of the US Constitution (1787) applied to all written pronouncements. There was no press as we know it today. Broadsides (analog cousins of today's blogs) could be published by anyone and were still be protected by the 1st A.

This ruling could be a horrible precursor of things to come. Libel is libel, but you needn't be hired by a news organization to be covered by Freedom of the Press. According to Judge Hernadez: “Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is ‘media,’ triggering the negligence standard.”

I would love to see if there are any positives to come out of this opinion. Investigative journalism cannot be the sole province of authorized entities.

UPDATE: 2/25/2012

See Finance Group v Cox

Google Liable for AutoComplete Defamation

More legal news from Italy. An undisclosed plaintiff sued Google for defamation.

People searching via Google ... were apparently presented with autocomplete suggestions including truffatore ("con man") and truffa ("fraud")....

This "caused a lot of trouble to the client, who has a public image both as an entrepreneur and provider of educational services in the field of personal finance".

Google loses autocomplete defamation case in Italy

Since the auto-complete algorithm was created and maintained by Google the court ruled that Google is to be held responsible for the outcomes.

So what is the result of this? Google must make certain that no words like "loser, fool, fraud, dummy" comes up in their auto-complete? Does Google simply remove auto-complete entirely so as not to invite further lawsuits? I never was a big fan of Google's autocomplete but all this will accomplish is to prevent new products from entering the workplace.

This is another horrible court coming from the EU. I fear with the new privacy ruling, going into effect on May 25, whereby websites must get "explicit consent" from web users before being tracked with a cookie that the EU is destroying innovation and intent on "controlling" the internet. As regards the EU privacy law I'm still not certain if this law applies only to client-side cookies or applies to server-side and session variables as well.

Yahoo is Responsible for Illegal Downloads

There was a horrible decision from the Court of Rome. Apparently people could view pirated copies of a movie (About Elly) on line. The Court of Rome ordered Yahoo to remove any link to the unlawful copies of the movie.

The only reason the Court did not include Google and other SEs is because the Italian division of those companies did not have an active role in the management of the search engines and thus were outside the jurisdiction of the court.

If this decision stands then search engines would be responsible for the content found through their site. The court did say that it would be impossible for the SE to police the material themselves but was responsible for promptly acting when a copyrite holder makes a claim about pirated material. The court also took into consideration the fact that the illegal sites were ranked higher than the official site. SEO anyone? Bueller? Bueller?

The fact that a SE is, in anyway, responsible for the material on the web is a horrible precedence. Intentional or not this is the first step to shutting down commercial activity across the web; the first step to eliminated any non-approved site. This is a special concern to anyone who is interested in privacy rights and free speech.

I can't find an English translation of the case but if you can read Italian here it is.

Facebook Being Sued to Remove Data

Two years ago a woman was murdered in Staten Island, NY. The EMT who arrived at the scene took a photo of the murder scene and posted it on his Facebook page. The murderer was caught and convicted and the EMT lost his job and certification. Now the family is suing Facebook regarding turning over the photos in question and identifying the users who saw and downloaded the photos.

I'm not a fan of Facebook as it concerns privacy rights but in this case the family is in the wrong. The only thing that can be done is to remove the offending photo from the EMT's account (and, if it's in the TOS, to close the account). However, now the family is asking the courts to force Facebook to violate others' privacy by finding out who "viewed" and "downloaded" the photos. Assuming the data exists (unlikely) and assuming that the newspaper account of the suit is correct the family is asking something quite unreasonable.

EU outlaws cookies?

It looks as if, starting May 25, it will be illegal for websites coming under the jurisdiction of the EU to use cookies without prior explicit consent from the user. This will impact all sites that advertise or monitor their site usage with Google Analytics or any other such provider.

I'm still a little up-in-the-air about what is truly restricted. Some reports say that it only applies to client-side cookies whereas others seem to include server-side cookies as well.

Microsoft versus i4i: Patent Trolling or Patent Infringement

There's a good article in eWeek, Patent Ruling Against Microsoft Hinges on Meaning of Custom XML, reviewing the patent infringement lawsuit between i4i and Microsoft.

Here's the kicker: Reading through the decision, it's almost as if both the jury and judge felt that the XML editor portion of Word was the only place where XML was being used (it's not) and that this is where the alleged metacode data structure was being created (doubtful; if there is one, it would be created elsewhere).

One of the problems I have with this lawsuit is that the process which was "patented" in 1994 had become commonplace five years later - without i4i doing anything to bring it into the market. It seems more and more to me like patent trolling to me.

Patent Trolling or Patent Infringement

It's hard trying to make head or tails about the i4i v Microsoft case. Anybody interested in a robust tech industry needs to be concerned about this. Large, powerful entities can't simply take processes created by smaller firms but neither should we allow the copyright process be taken advantage of.

The patent in question is for separating the manipulation of content from the architecture of the document, which the company, named i4i argues, covers basic XML editing. It's quite troubling that doing something as simple as adding an XML editor should infringe on a patent, but what's even more troubling is that the court somehow ruled that such an editor was worth $98 in the copies of Microsoft Word where it was used. An XML editor. $98. And people say patent awards aren't out of sync with reality?
Wait, Editing An XML Document Is Patented And Worth $98 Per Application?

Doug Cawley, i4i’s lead trial lawyer argued that i4i demonstrated its product to Microsoft in 2001 and that Microsoft, instead of buying it incorporated a similar function of its own. i4i did not accuse Microsoft of copying its code or product. The question then is - how is this a patent infringement? I'm not a patent lawyer, nor have I read the patent in detail, but it seems as if i4i is arguing that any XML editor written now, or in the future, owes i4i royalties. What would change my mind would be if the i4i patent was for something truly insightful. I'm not getting that impression in any of the reporting.

Patent Litigation Weekly: E.D. Tex Unkind to Tech; PubPat's Other Suits