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Yearly Archives: 2007

web 2.0 & the law

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Another story from  The Register communicating a warning from the EFF about the inherent legal risks of Web 2.0 stuff. The nub:

The Electronic Frontier Foundation (EFF) has given Web 2.0 media sharing start-ups some non-technical advice: run your ideas past a lawyer first to stay on the right side of copyright law.

Can’t argue with that. Continuing on:

“One of the big mistakes I see in this space is failure to engage legal counsel soon enough. Often these involve business issues – like how do you want users and employees to interact on the site,” staff attorney Fred von Lohman said.

The choice of whether to offer buzzy features like mash-ups or to profit from other people’s content on the server may also have a bearing on a company’s legal exposure. “Techies will tell you it [server-side computing] is about efficiencies, the reality is lawyers will tell you to think hard about it,” von Lohman said.

While you might think executives running sites that suck in other people’s content have most at risk, von Lohman pointed out that investors are also in the firing line. He cited EMI and Universal’s decision to drag Bertelsmann through the US courts over its $100m investment in the old Napster, which they claimed helped the P2P site infringe on their works.

So there you have it. Straight from the EFF.

cigarettes save lives

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Well, not quite technology, not quite law. But in a tech publication so close enough. The Register reported on a story of a woman whose life was saved by cigarettes – or rather one cigarette:

Brenda Comer, of Rock Hill, had just finished washing the dishes at around 11am when she popped out for a gasper. At that moment, The Seattle Times dramatically recalls, “an 80-foot-tall oak tree, felled by winds gusting up to 40mph, crashed through the roof”.

Of course, that doesn’t quite make up for the hundreds of millions of other deaths caused by smoking. But at least its something positive.

a rose by any other name…

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or, a study on the idea/expression dichotomy in copyright law as illustrated through flatulent dolls. The interesting decision in JCW Investments v. Novelty, Inc. centers around how copyright can inhere in toy farting dolls:

Somewhat to our surprise, it turns out that there is a niche market for farting dolls, and it is quite lucrative. Tekky Toys, an Illinois corporation, designs and sells a whole line of them. Fred was just the beginning. Fred’s creators, Jamie Wirt and Geoff Bevington, began working on Fred in 1997, and had a finished doll in 1999. They applied for a copyright registration on Fred as a “plush toy with sound,” and received a certificate of copyright on February 5, 2001; later, they assigned the certificate to Tekky. In the meantime, Tekky sent out its first Fred dolls to distributors in 1999. By the time this case arose, in addition to Fred, Tekky’s line of farting plush toys had expanded to Pull My Finger® Frankie (Fred’s blonde, motorcycle-riding cousin), Santa, Freddy Jr., Count Fartula (purple, like the Count on Sesame Street), and Fat Bastard (character licensed from New Line Cinema’s“Austin Powers” movies), among others. By March 2004, Tekky had sold more than 400,000 farting dolls.

400,000! Anyway, on to the actual law part of it. Basically, another company, Novelty, came along and developed a similar doll and the court found them offside:

It is not the idea of a farting, crude man that is protected, but this particular embodiment of that concept. Novelty could have created another plush doll of a middle-aged farting man that would seem nothing like Fred. He could, for example, have a blond mullet and wear flannel, have a nose that is drawn on rather than protruding substantially from the rest of the head, be standing rather than ensconced in an arm-chair, and be wearing shorts rather than blue pants.

Well. Good to know that one can’t own the idea of a farting, crude man – only the particular expression of a farting, crude man.

There was of course also the trademark aspect to it:

The jury found Novelty liable for trademark infringement because Novelty used the words “Pull My Finger” to sell its farting Santa dolls, and this use infringed Novelty’s mark for those words as related to plush dolls.

There you have it. “Pull My Finger” is a trademark.

all in the genes

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Wired has a story about the passage in the US HR of the Genetic Information Nondiscrimination Act. The nub:

If legislation passed Wednesday by the House of Representatives becomes law, it will be illegal to deny a job or health insurance on the basis of a person’s genetic makeup.With more links drawn between genetic profiles and disease predispositions every day, supporters of the Genetic Information Nondiscrimination Act say the bill will ease patients’ worries of being singled out for faulty genes.

As genetic technology becomes more and more advanced and accessible, it will be interesting to see how things develop. For example, although this bill makes it illegal to deny someone employment based on genes, what happens if people start voluntarily disclosing their genetic results in order to make them stand out as a better candidate? If they do, the end result could be the same. And what then? Might the result not be the same? Would there be legislation then introduced to preclude positive, as well as negative discrimination?

It also makes for rather interesting ethical questions. For example, one argument that could be advanced is that genes simply reveal various characteristics of a person that may or may not make that person suitable for a job. For example, if genetic testing determines that an individual has a 90% chance of having a fatal stroke in the next year (and no, I have no idea whether or not that is an accurate example), should that person be hired as the pilot of a 747? Why would it not be reasonable to not hire that person on the basis of those results?

Of course, that very argument, if taken to its ultimate conclusion, also has the potential to lead to truly horrific (at least IMHO) dystopian societies.

Time to go watch Gattaca again.

taking the fun out of blogging

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As a lawyer, I understand the need for policies, procedures, practices, etc. when running a business, managing vendors, employees, etc. Of course. Sure. That’s part of work – both my work and the work of my clients. But when I see an article entitled “Blogging Policies and Best Practices for Lawyers and Law Firms” well, gotta say, my eyes start glazing over.

Not that there’s anything particularly bad or wrong about the article. In fact, it offers some good advice on avoiding “ethical minefields”, creating “powerful marketing tools” and ensuring you realize a good return on your “investment”.

Ugh. To be perfectly honest one of the primary reasons I blog is not to realize a return on investment, or to create a powerful marketing tool, but rather just to offer casual observations (or ruminations) on my work or things related to my work. In other words, its a bit of fun, as compared, for example, to writing a formal research paper, journal article, or a 100 page outsourcing contract. For those types of writing, there are many, many rules, requirements and policies to remember and adhere to, amongst other considerations. And relatively speaking, its not quite as much writing that stuff as it is posting what are ostensibly meandering ramblings about the next new thing. Don’t get me wrong, its certainly interesting and challenging work, but its not the type of thing one typically does to relax.

I guess what I’m getting at is along the same lines as the previous post about making blogging part of someone’s job. Its kind of like saying that its part of your job to chat up your friends at work on a regular basis. Its kind of like saying that there should be internal policies governing who you go to lunch with, and what you talk about over lunch. In other words, to me, it seems to take all the fun out of it. It makes it seem like work. It puts you in the mindset that it is work. And, to be perfectly honest, I think it makes it less interesting, because you’re too worried about the time being put into it. Too worried about whether you’re writing for your “target market”. Too worried about “visualizing and addressing your market”. Too worried on making your blog sound “informal and conversational”. Too worried about this, that and the other thing, none of which have much to do with the subject matter of what you’re writing about.

Of course, this is just my take on blogging and what I hope to achieve (or perhaps rather not to achieve) by doing it.

you know its time to stop blogging when…

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Well. From the “this is rather sad, isn’t it” department, The Register reports on how blogging has now become part of official employment duties at some shops:

According to an official release from the group, Ged Doherty, chairman and chief executive of SonyBMG in UK and Ireland, said the company “has made it obligatory for all senior staff at both Columbia Records and RCA Records to start blogging actively”.

So what happens to staff who refuse to toe the corporate line, or perhaps fail to produce the required quantity of blog blather?

We had to find out.

A spokesperson for SonyBMG told us “you won’t be sacked for failing to blog”, but added, rather ominously: “If you don’t blog, it’s going to be frowned upon. Ged has made it clear that staff are expected to blog and participate in the community. He sees it as part of people’s jobs.”

Surprising to say the least. Wasn’t there a time not long ago when one could get fired for blogging? If memory serves the term was “dooced”, after the blog of the same name. Rather ironic to now hear this.

Dunno – seems rather to take a bit of the fun and spontaneity out of it if its actually part of the job. And isn’t that what makes blogs interesting in the first place? I can’t imagine things being very spontaneous if someone is “frowning upon” you for not blogging, particularly when the person doing the frowning happens to be your boss.

student rant = protected speech?

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Alas, my dabbling with blogging took a bit of a nosedive lately. As things get busy with the day job something has to give, and as between playing a little bit with the boy and writing another entry in the blog, the boy always wins.

Anyway, to kick off a backlog of a zillion entries, E-Commerce News reports on a finding by the Indiana Court of Appeals:

The Indiana Court of Appeals has ruled that a student’s obscenity-filled MySpace post blasting a school principal is protected free speech. The student, who is identified as “A.B.” in court documents, was originally placed on probation by a lower court judge in Indiana after she commented about her body piercings and school policy on a MySpace page created by another student.

“While we have little regard for A.B.’s use of vulgar epithets, we conclude that her overall message constitutes political speech,” the Indiana Court of Appeals notes in its opinion on the case.

The key finding in this particular case is that A.B. was speaking out against her principal and his policies rather than causing actual harm.

This is rather interesting given that there have been one or two cases in Canada where students have been suspended for commenting negatively on their teachers. From what I recall, the stories characterized the activities or comments as “cyber-bullying”. In fact I believe The Toronto Star reported riot policing intervening at a protest by students over the suspension of one student for just this type of activity.

It will be interesting to see whether cases like this one will work their way up to Canada, and whether students, given the somewhat less litigious environment in Canada, will proceed with legal challenges of a similar nature.

can’t do it in new jersey

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V. quick one (things r busy) from The Reg (gotta love those Brits) – story on how…

Authorities in New Jersey are considering making it an offence to send text messages while driving.

Interesting timing given my prior little rant.  Quoth an Assemblyman from the state:

“It requires you to completely take your eyes off the road. I see people driving down the street using both their thumbs to send a text message, and I can only imagine they are steering with their knees.”

Ah, so that’s how they do it – I was wondering whether it was the elbows or the knees. My only thought – its not an offence already? I wonder whether it is here (Canada)…