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Great Firewall Maybe Not So Great

Australia has announced plans to implement mandatory content filtering by its internet service providers for certain kinds of web content, essentially attempting to block all Australian internet users from these categories of sites. (See Yahoo article here) China had attempted this sort of thing earlier in 2009, but placed its plans on hold. These plans had apparently included requiring computer makers that sold computers in China to install filtering software on the computer that would limit user access to certain “objectionable” web sites.

I suspect that one day, the older internet users among us will look back with nostalgia at the days when we could freely look at bestiality, hardcore violence, and sites on freeing Tibet from Chinese rule. Sadly, today’s debate in Australia seems to be framed as a conflict between the mainstream, ordinary folk against the scum of the earth that produce child porn and other nastiness. And why would anybody want child porn sites to be available to anyone? The problem is always in how we define the things to be filtered. In Australia’s plan, the non-government entity responsible for doing the filtering would receive complaints from the public about a site, and then the entity would filter the site for all. So, I could claim that yahoo.com is actually a child pornography site and file a complaint. Hopefully, the entity that reviews these complaints would have a reasonable process to filter the wheat from the chaff, and not automatically add whatever site is complained of to the filter list.

I would also hope there would be some process to be unlisted from the filter with some due process protections if you get an adverse decision by the filtering entity. But, as you can imagine, this only increases the overall cost of the filtering system, which is passed on to Australian taxpayers, who could probably avoid going to such dirty sites by not clicking on them in the first place, hence saving all a significant amount of time and cost to civil liberties.

I’m not a fatalist in saying, from the start, that this plan is doomed to failure. Enough talented people put into a room can come up with a workable and effective solution to this problem. Instead, I think this internet filter concept was created by a group of people with a solution looking for a problem to solve that, so far, does not exist but in the minds of some easily offended by the internet. In my opinion, public monies would be better spent stopping phishing attacks and similar malicious web sites, and enforcing the existing laws that criminalize the wholesale theft of identity and credit card information that occurs today on the internet.

Why Blame Society when you can Blame Activision?

Ever wondered why lawyers get a bad rap? Because we get blamed when guys like this file lawsuits (though Mr. Estavillo is apparently going this pro se against the likes of Activision/Blizzard Entertainment). Mr. Estavillo is a serial technology litigant, in that he has sued Sony, Nintendo, and Microsoft for other injuries sustained as the result of being banned, not being able to run hacked software, and broken equipment, respectively. In the most recent case against Activision, Mr. Estavillo is apparently complaining that World of Warcraft has alienated him from society. I didn’t learn about that tort when I was in law school, but perhaps this case will help get it in the Restatement (Fourth) of Torts.

His expert witness on this topic is the song writer from Depeche Mode, Martin Gore. I’m sure Mr. Gore is quite knowledgeable about alienation – the court need only listen to one or two tracks from any number of his Depeche Mode hits to be convinced.

At least Mr. Estavillo knows to go where the money is, in suing large and profitable companies like Activision/Blizzard. He might amend his complaint to also sue society for alienating him, but I understand that society is broke, what, with the recession and that stimulus package, and all that. I’m sure this will be a bang up case. I hope that somebody posts it to youtube.

From My Pen to Your e-Record

Vernon Huang, an anesthesiologist, and his company, Shareable Ink, have created a pen that both writes on paper, and transfers your writing to an electronic health record system through the use of a tiny camera in the pen that keeps track of what you are writing. (see article here) Given that a majority of health care providers still use paper records today as a way to document patient visits, a pen that allows for conversion to paper’s electronic cousin is a welcome improvement in the health records environment.

Dr. Huang also notes that the pen allows for the conversion of data into discrete data elements as part of the import process to the health record. So, for example, a medical assistant documenting a patient’s heart rate and blood pressure on paper with the pen can have those discrete data elements entered into the patient’s chart as individual data elements for reporting and analysis.

This invention is an interesting twist on EHR adoption issues. One of the main problems that users complain about is the loss of speed (or the sense of loss of speed) that results from having to use a keyboard and mouse to document patient care. This is particularly acute in practices that rely on high daily patient volumes to keep the doors open, such as the private practice of your family doctor, pediatricians, and some specialists (my dermatologist was done with me in 8 minutes flat, and that included me getting undressed).

There are other security concerns with a pen that makes entries into a database system (like non-repudiation – that we know who purports to be using the pen is really the person they say they are), but this invention may go a long way to moving resistant practices to an EHR. Remember – Medicare and Medicaid will pay between $50,000 and $60,000 per qualified health care provider in incentives for those that adopt an EHR and demonstrate “meaningful use.” Stay tuned.

iVirus: Proof of Popularity

So another virus was detected recently that is targeting iPhone users that have jailbroken their phones without changing the default SSH password (see article). Back in the good old days, Mac users would go: “100,000 viruses for Microsoft, 2 for Mac.” Now, the numbers are more like: “100,000 viruses for Microsoft, 2 for Mac, and 3 for jailbroken iPhones.” Look out Microsoft, Apple is catching up! Well, not quite yet (at least not yet on the virus popularity scale). But, the fact that there are viruses being written for the iPhone is evidence that the iPhone is getting more popular as there is a relationship between widespread adoption and virus activity. It goes hand in hand with another rule of thumb: the more widespread use a computer device enjoys, the less secure it is.

So, to all you iPhone users out there who have jailbroken your phone – change your SSH password!

Google’s Not the Only Online Book Deal

The academics have been working on digitizing their book collections with Google’s help. (See Article here) I suspect that, in spite of the fact that Google is ahead of the pack in total books digitized today, there may be a fair number of other groups that get together to digitize collections down the road, and as new books are written and published, most will be available electronically anyway.

In spite of the Copyright Office’s current objections to the original Google book deal, my bet is that the market in the future will push changes in how copyright ownership is managed, or perhaps streamline the management of these interests (for example, by requiring a statutory fee for access payable to the copyright owner).

Are You Smarter than Your Computer?

The answer appears to still be yes (even if you sometimes don’t feel that way) – see article here. The folks at IBM have been working on simulating part of a cat’s brain with their super computer, and it takes a whole lot of processors to do that – almost 145,000 all together.

“Sentient” computers are not expected soon, and the simulation that IBM put on did not result in the massive super computer licking itself or chasing mice, but these kinds of advances will likely lead to more sophisticated infrastructure management systems for air traffic control, weather forecasting, traffic management, and perhaps information security systems. We take for granted the number of computer systems that surround us today. For example, your car probably has well over 12 processors that handle a number of tasks for you, like monitoring your tire pressure to helping you get from point A to point B. Traffic lights, power grids, newer street signs and billboards – many of these are managed by increasingly sophisticated information systems.

And there is more to come, if Mr. Moore has anything to say about it.

Psystar’s Star Dims a Bit

Psystar and Apple have been in a tech law tango based on Apple’s allegations that Psystar violated the end user licensing agreement when it started releasing the OS X operating system on non-Apple manufactured clone computers. The federal court ruled in favor of Apple on its claims on a motion for summary judgment. (See article here) (You can find a copy of the judge’s decision here)

The Court’s decision to grant summary judgment for Apple is primarily based on Apple’s copyright infringement claims against Psystar. The Court addresses the exclusive reproduction, distribution, and preparation of derivative work rights under the Copyright Act that are exclusive to Apple. Apple alleged that Psystar, by taking a copy of OS X, modifying it so that it would boot on a non-Apple made computer, and selling that modified work to the public, had violated Apple’s copyright in OS X. The Court examines the possibility of a section 117 defense under the Copyright Act which does grant the owner of a copy of a copyrighted work a limited right to make an additional copy of adaptation of the work. 17 U.S.C. § 117(a). There are two possibilities under section 117: a copy of the work is made as an “essential step” in using the computer program, or the copy is made for archival purposes.

The Court held that Psystar had essentially waived this defense by not timely raising it. In any case, Psystar had been making a lot more than a single copy of OS X when it cloned its modified copy of the operating system and installed it to computers that Psystar offered for sale to the public. The language in section 117 is more geared towards us consumers that might make a backup copy of our OS X disk, or backup the operating system to our Time Machines in the event of a failure of our prized Macbooks.

The Court briefly addresses section 107, fair use, noting only that Psystar doesn’t attempt to justify its use as a “fair use” under section 107. Most likely, that Psystar offered a copy of OS X for sale with its computers without paying the “customary” licensing price to Apple would have doomed such a defense anyway under the first element of this test.

Psystar then raised the first sale doctrine as a defense, under section 109. Under this section, I have the right to resell a copyrighted work I have purchased to the general public, without responsibility to the copyright owner (for example, to resell at a set price). So, if I were to buy a legitimate copy of Snow Leopard for $100, and offer it on ebay for $50, I have that right under section 109. The Court found that Psystar was not doing this at all in modifying OS X and then selling this modified copy on computers to which it was installed. Section 109 does not really help Psystar.

The Court next addressed whether Psystar was creating a derivative work of OS X, by modifying certain operating system files so that OS X would load onto a non-Apple manufactured computer. Psystar tries to assert that because it did not modify the kernel of OS X, only the bootloader file and certain kernel extensions (disabling Apple extensions and adding its own extensions for the software to run on non-Apple hardware), it had not created a derivative work. Again, the Court sides with Apple. Even the modification of such humble files is the preparation of a derivative work, which was unauthorized under the Copyright Act.

Psystar also alleged that Apple was misusing its copyright. This doctrine addresses a copyright holder who attempts to leverage his limited copyright monopoly to control areas outside of the monopoly. For example, if I write blog software, and license it under an agreement that requires that you never write blog software, I am misusing my copyright in the work. I don’t have the right to prevent you from writing a competing software package.

Psystar is arguing that Apple is unfairly limiting where its operating system can be installed, which is perhaps anti-competitive. Unlike Windows, which can run on a broad range of hardware that Microsoft does not manufacture, Apple limits OS X to Apple-made hardware. Psystar is essentially arguing that Apple should do what Microsoft does with its operating system, to allow for competition. The Court sided with Apple on this argument as well, reasoning that Apple was only trying to control the subject matter of its copyright – the software itself. I don’t think the Court was persuaded that Apple must license its software as others have in the market. Apple may also have a legitimate reason for controlling the hardware on which the software is operated, given the drivers mess that is created with most Microsoft operating system releases. Older versions of Linux also struggled with this problem, in spite of the many volunteer developers who write drivers for the Linux system in its many flavors.

iPhone Virus – Aiiiiieeeeeeeeeeee!!!!

Yahoo reported today a virus that infects jailbroken iPhones has been released into the wild. (See story here) Apparently the worm will change your phone’s wall paper. In order to be infected, you must be running SSH and have left the default password on the service. I’d expect more of these kinds of viruses as smart phones get smarter and more distributed.

Apple Moves to iTouch for in-Store Checkout

Wired reported today that Apple’s stores will be moving to use the iTouch for roving checkout instead of the existing Windows CE-based devices in use today. I linked to this story in part for the entertaining Wired reader comments, particularly to the partisans of Apple and Windows that continue the division between the companies. Besides the entertainment value, this circumstance identifies two interesting themes: first, Apple and Microsoft have worked together and continue to innovate within the same, larger technology market (and neither is the consistent leader of the other as a result), and second, Apple gave the Windows CE devices a valiant try and elected to improve the process based on staff input (which is what healthy companies should do, even if it means using the competitions products to do it).

As to the former, Apple was not the first to have stores where people could come to buy their technology products. Gateway (remember them?) had stores throughout the U.S. in its heyday to sell its brand of personal computers. Gateway ultimately went under and was replaced by other vendors like Dell and HP (who notably do not have in-person stores). Apple added a twist to their stores, by also providing a walk-in help desk (the “genius bar” staffed by your kids who know way more than you about computers), and later, by implementing roaming check out staff with wireless credit card terminals. And, if you have ever been to the Apple store in New York City, they also have some cool architecture (a glass building with most of the store underground, utilizing the natural light from the outside to expand the space downstairs).

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This year, Microsoft started its own line of stores, having recruited former Apple staff to open them. Microsoft originally had licensed Apple’s initial graphical user interface for its own Windows 1.0, and then later expanded and changed the interface over the last 25 years to the interface we have today in Windows 7. On the other hand, Microsoft has led (because of enormous market pressure) on improving security to its operating systems. Apple still does not have the kinds of business enterprise products that Microsoft has developed over the years, like SQL Server and Exchange. And one might argue that Microsoft’s Office Suite is still the better product compared to the tools that Apple has developed, like Numbers (though I do use and like Apple’s Keynote for presentations, but PowerPoint has been around for far longer).

As to the performance improvement issue, I think Apple is right on to try something out (they have been using these Windows CE devices for over a year at their Towson store), and then see how they can improve them. My observation of these in the store was that they did need to be rebooted regularly and could be unreliable – especially when Apple first released the iPhone 3G. Whether Apple employees would hate on these just because they weren’t Apple (as one commentator on the Wired story suggested) is anyone’s guess. My opinion is that the employees had to use them every day, and were in the best position to say if they worked or not. Good for Apple to actually ask for input rather than just make a management decision at a conference table.

Red Flags for Attorneys – Update

The ABA has prevailed upon a federal district court to interpret the Federal Trade Commission’s Red Flags rule to not apply to attorneys. (See ABA Press Release here) The Court had granted the ABA partial summary judgment on its complaint, with a full opinion to be issued separately. (See Order here) So you attorneys out there can breath a sign of relief – the Red Flags rule does not apply to you. Whether this interpretation further limits the rule’s applicability to just banks and lenders, however, is yet to be determined.