• The Copyright Office recently sought submissions for new exceptions to the Digital Millennium Copyright Act. The EFF yesterday filed a comment with the Office seeking an extension of last year’s exceptions for phones and remix videos, and urged that the Office expand its protection to the jailbreaking of smartphones, electronic tablets, and game consoles. Hypothetically, if I had a modded xbox 360 sitting at home, it would be nice to know that it wasn’t violative of the DMCA.
• According to a CBS report, 20% of wireless 911 calls are made inadvertently. I’d also like to take a moment to recognize the stupidity of making the 9 digit synonymous with reaching an outside line. The first two digits I press on my phone are 9 and 1. One double tap, and the police show up at my lab. Again, hypothetically.
• Carrier IQ is alleged to have silently recorded data from potentially millions of smart phone users. The first class action suit alleging violation of the Federal Wiretap Act was filed against Carrier IQ yesterday in the US District Court for the Eastern District of Missouri.
• You know those privacy screens some people in your office use? They’re pretty lame and mostly ineffective. Why not perform this relatively straight-forward hack and make the screen invisible without polarized glasses? I’m definitely doing this.

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1. Legal Geekery Roundup for 11.09.2011
2. Legal Geekery Roundup for 11.11.2011

• Justice Stevens defends his Kelo opinion while simultaneously criticizing Justice O’Connor for alleged inconsistencies in her dissenting opinion.
• If you play video games on your computer, it’s likely that your personal information, and maybe your credit card, were compromised in the recent Steam hacking. Lifehacker has some tips on what you should do if you have a Steam account.
• Gizmodo makes some persuasive arguments about why you should be very concerned about the HR 3035 bill, which would effectively legalize most robocaller services.
• While I don’t typically report on legal gossip, apropos of Veteran’s Day, Above the Law today published what can only be labeled a diatribe written by Professor Michael Avery of Suffolk Law School. In the email, he vehemently objects to students soliciting the staff for donations that would go into care packages for deployed American soldiers. Incidentally, this man was largely responsible for my decision to cross Suffolk Law off my list of potential law schools.
• Judge orders divorcing couple to exchange dating website and Facebook login credentials, in violation of Terms of Service. I guess we finally have definitive proof that absolutely no one reads click-wrap agreements.

You can find all of these links, as well as previous Roundups, on our Delicious page.

[Edit 11.12.11: Factual correction thanks to Louis Grube]

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1. Legal Geekery Roundup for 11.09.2011

• Wired begins licensing photographs taken by its staff with Creative Commons licenses.
• Adobe announces that it will be officially killing off Flash Player for mobile devices. Forces iOS competitors to lose the snarky site redirects.
• Stanford CIS reviews the Digital Advertising Alliance’s recently announced supplementary set of self-regularory principles for third parties on the web.
• An interesting Op-Ed in the NYTimes about whether solitary confinement is tantamount to torture.
• Speaking of Wired, they recently got their hands on one of the GPS devices that served as the basis for the recent SCOTUS United States vs. Jones case. The warrantless GPS device was found in the wild, well hidden inside a vehicle.

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1. Typography for Lawyers Brings Legal Geekery a New Design

Most of us [legal geeks] dream about a day where we’re presented with a minimalist solution to electronically signing documents. Adobe’s recent acquisition of electronic signature company EchoSign was rumored to be the beginning of just such a scenario. Adobe is allegedly gearing up to integrate the technology into Adobe Reader—and in the not-too-distant future.

But on July 18, the same day Adobe publicly announced its purchase of EchoSign, a patent infringement complaint was filed in the Eastern District of Texas¹ by e-signature company, RPost. EchoSign seeks permanent injunction against use of the allegedly infringing services, as well as damages and attorney’s fees.

According to the complaint, the following granted patents are potentially being infringed by EchoSign’s service:

1. U.S. Patent No. 7,707,624 entitled “System for, and Method of, Proving the Transmission, Receipt, and Content of a Reply to an Electronic Message.”
2. U.S. Patent No. 7,865,557 entitled “System and Method for Verifying Delivery and Integrity of Electronic Messages.”
3. U.S. Patent No. 7,966,372 entitled “System and Method for Verifying Delivery and Integrity of Electronic Messages.”
4. U.S. Patent No. 6,182,219 entitled “Apparatus and Method for Authenticating the Dispatch and Contents of Documents.”
5. U.S. Patent No. 6,571,334 entitled “Apparatus and Method for Authenticating the Dispatch and Contents of Documents.”

Clearly these patents cover related subject matter, but the claims aren’t egregiously broad. Whatever your position may be on software patents, whether or not actual infringement is occurring here will likely only be determined after some serious discovery. Because of the way the claims are drafted (admittedly, this only goes for the three patents I reviewed) the method by which EchoSign employs their technology is an important question that must be answered before we can perform a meaningful analysis.

We’ll continue covering the story, but in the meantime, you can review a copy of the here.

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1. A shocking choice of venue, indeed!

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There’s been a lot of chatter on the internet lately about the above picture. For the uninitiated, this is a picture of an Indonesian macaque monkey. “What’s the big deal,” you may be asking yourself, “it’s just a National Geographic looking picture of a monkey.”

The big deal, friend, is that the monkey itself took those photos.

David Slater, a professional photographer, was in Indonesia photographing the local wildlife when a macaque monkey decided to take his camera. Apparently, “hundreds” of photos were taken as the monkey fooled around with the camera. The Telegraph hypothesizes that the monkey was actually interested in his reflection, causing him to make faces at the lens. They also suggest that the monkey enjoyed the sound of the shutter, causing him to repeatedly snap photos of himself as he admired his reflection. For our limited purposes, it doesn’t really matter why “the author” decided to take the photographs — it’s sufficient to know that he took them.

So then, what about copyright? Well, it would seem that the image is within the public domain as a matter of Copyright Office policy. To my knowledge, nothing in the Copyright Act indicates that this image is not entitled to copyright protection. However, the US Copyright Office’s Compendium II, a manual intended primarily for Copyright Office staff, makes clear the following:

503.03(a) Works-not originated by a human author.
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable.

One might argue that but-for the photographer’s participation, these photographs would not exist, and therefore this is the product of human authorship. In my opinion, the example of a mechanical process given in the section above envisions a mechanical process constructed by a human, which would meet the same but-for test. Still, it can’t really be said that Slater gave “no contribution” to the photo, can it? Regardless, my reading of the spirit of the policy is that while the photographs may satisfy the traditional test for whether or not a work is copyrightable, the policies of the Copyright Office relegate our monkey friend to polished and mounted driftwood status.

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Editor’s note: For two months now I have been trying, unsuccessfully, to get the following editorial published under the working title, “Time For Apple to Kill Text Messaging.” Today at WWDC, Apple scooped me and announced a BBM-like app. If done properly, I firmly believe this is the beginning of the end for text messaging. I have included my editorial submission in this article because I think it’s important to understand why we need to get behind this launch and start adopting it as soon as possible. Way to go, Apple.

As of the beginning of this year, 69.5 million people in the United States owned smart phones. Together, Apple and Google smart phones accounted for over half of all smart phones owned by consumers in the United States. In February of 2011, 68.8% of mobile subscribers used text messaging on their phone.

The time has come for the major mobile operating system vendors to put an end to the era of text message price gouging. Several years ago, there was outcry from mobile users regarding the price of text messaging. Some basic math reveals that mobile users pay roughly $1500 per megabyte of text messaging data. A few years ago that may have made sense, but now that many consumers enjoy a data plan on their smart phones where they pay a more reasonable fee of 7.5 cents per megabyte of data, this pricing scheme approaches absurdity — particularly where consumers are being double billed for data at an astronomical mark-up.

We have arrived at an important point in our digital history where some particularly strong vendors are uniquely situated to stand up to the cellular carriers. In the past, Apple may not have had the market power necessary to include text messaging as a feature of the iPhone operating system; but they do now.  As Apple’s market power has grown, it has slowly begun the quiet process of taking power away from the cellular companies. FaceTime is an iOS application that comes preinstalled on the iPhone 4 and allows users to partake in video conferencing. What many people do not realize is that once the software converts the call from a traditional voice call into a FaceTime call, the wireless provider is no longer billing for that time. In other words: the revolution has begun.

An entire industry has already sprung up around the goal of creating the first fully-functional text message replacement app. Research In Motion, creators of the BlackBerry device, introduced a text message replacement feature into their operating system known as BlackBerry Messaging (BBM) several years ago. Having never owned a BlackBerry, I can’t speak to the quality of the service, but the effort should be applauded nonetheless. What I can say that many of my classmates in law school swore by the BBM service. The problem, of course, is that the vast majority of consumers do not own a BlackBerry and can’t take part in BBM discussions — a fact not lost on one hoaxer who recently convinced many credible technology blogs that iOS and Android BBM apps would launch at the end of April. Sadly, Research In Motion denied the claims and put an end to the hope that text messaging will be replaced in the very near future.

Several small developers have created fantastic mobile apps in the hopes of replacing text messaging. Unfortunately, while their products may enjoy some minor financial successes, they will fail in their ultimate goal. FaceTime works because the service revolves around the consumer’s mobile phone number and not some arbitrary username or number generated by a third party. If I have a new contact’s phone number and she is using a device capable of FaceTime, I can initiate a FaceTime call with her without knowing anything else. The killer app for text messaging has to do the same thing. If you give me your phone number, 99% of the time the killer app has to allow me to send you a text message without knowing any additional information. Anything short of that and no matter how well developed and seamlessly integrated the app may be, it won’t replace text messaging.

Only the big boys can compete in this space, and compete they should; for the sake of text-happy consumers everywhere.

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1. Are You a Student in the Market for a Mac? Hold Off.

Just a quick note to our law student readers in the market for a new Mac: BGR reports that credible sources say Apple’s yearly back-to-school special may be $200 off the purchase price of an iPad (with the purchase of a new Mac).

Even if you’re not interested in an iPad, the buyer market is still super strong. Why not pick one up at a discount and sell it to recoup some of the costs of your ridiculously overpriced new piece of hardware? (I can say that because I am typing this post from a brand new 15″ Macbook Pro.)

[Source]

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In a letter to Eric Schmidt (Google), James Balsillie (RIM), Michael Lazaridis (RIM), and Scott Forstall (Apple), Senators Reid (D–NV), Schumer (D–NY), Lautenberg (D–NJ), and Udall (D–NM) have urged the smartphone industry to ban smartphone apps designed to alert users to local DUI checkpoints.

The law behind DUI checkpoints can be tricky, and it’s not an incredibly simple task for law enforcement to move a checkpoint on the fly. Usually the decision regarding where to drop a checkpoint has to be done by someone off-site serving in an administrative capacity, and there has to be solid data indicating that drunk drivers are likely to be traveling in that area. There also generally must be a place for drivers to turn off to avoid the checkpoint.

What I find interesting is that although the law (at least in Pennsylvania, and maybe nationwide, if memory serves) plainly requires a driver make a conscious decision whether or not to go through the checkpoint, the idea of a driver making the decision at a relaxed pace rather than while driving and having to make a split section decision about whether or not to turn off, is apparently a deal-breaker.

After the break, find the full text of the letter:

Dear Mr. Schmidt, Balsillie, Lazaridis and Forstall,

We write today with grave concern regarding the ease with which downloadable applications for Apple, Blackberry and Android operating systems for smartphones allow customers to identify where local police officers have set up DUI checkpoints. With more than 10,000 Americans dying in drunk-driving crashes every year, providing access to applications that alert users to DUI checkpoints is harmful to public safety.

We know that your companies share our desire to end the scourge of drunk driving and we therefore would ask you to remove these applications from your store unless they are altered to remove the DUI/DWI checkpoint functionality.

One application contains a database of DUI checkpoints updated in real-time. Another application, with more than 10 million users, also allows users to alert each other to DUI checkpoints in real time.

Police officers from across the country have voiced concern about these products, with one police Captain saying, “If people are going to use those, what other purpose are they going to use them for except to drink and drive?” With a person dying every 50 minutes in a drunk-driving crash, this technology should not be promoted to your customers – in fact, it shouldn’t even be available.

We appreciate the technology that has allowed millions of Americans to have information at their fingertips, but giving drunk drivers a free tool to evade checkpoints, putting innocent families and children at risk, is a matter of public concern. We hope that you will give our request to make these applications unavailable immediate consideration.

Thank you for your prompt and careful consideration of this matter.  Should you have additional questions, please do not hesitate to contact our offices.

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Whatever you do in this life, unless your name is John W. Spiegel and you work at Munger, Tolles & Olson, you haven’t had the opportunity to lay down the most epic of all public smackdowns in recent history.

This letter, posted on TMZ,¹ calls out Sheen’s recent behavior in a hilariously not-so-subtle fashion, which should probably serve as the template for all “lawyer pants” letters in the future.

“Your letters paint a picture of Mr. Sheen’s condition and conduct that has no connection to reality. Let us set the record straight.”

Well done, Mr. Spiegel. Well done.

(Yes, as friend of LG @ouij notes, the law firm’s letterhead may make your eyes bleed.)

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1. Gavel bang to my former classmate Danya, as I probably never would have seen this.

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The parties in Sony Computer Entertainment America LLC v. Hotz, et al. apparently came to an unfortunately overbroad ESI agreement, before the Electronic Frontier Foundation managed to send off a letter in opposition to the judge, whereby Twitter, YouTube, Bluehost, and Google have been compelled by a N.D. Cal. magistrate judge to turn over data relating to Playstation 3 jailbreaker — and rapper — George Hotz (pictured above).

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