Author Archives: Michael Froomkin

$50 Million to Burn In SCO’s Campaign Against Linux

Posted on October 17, 2003 by Michael Froomkin

A venture capital firm called Baystar Capital was crazy enough to invest $50 million in SCO, the people making what appear to the naked eye to be highly preposterous claims about 'owning' unix. (Full details at Groklaw, of course.) If this is a Microsoft-inspired way of keeping a cloud on the legal status of Linux, it's depressing. If the Baystar people actually are wrong enough to think that SCO has a case, that's really depressing — think of all the better uses for $50 million! (And if you want better investments in the internet/tech field, call me — I can point you to a really great investment you can make for one twentieth of that amount.)

There is of course a third logical possibility, however unlikely: Baystar have made a smart bet. Very unlikely, and far too depressing to contemplate.

Posted in Law: Copyright and DMCA | 1 Comment

Unhappy Troops

Posted on October 16, 2003 by Michael Froomkin

Another false thing Fred Barnes said the other day was that our troops in Iraq are really happy to be there. The audience found that not credible (“read the letters to Stars and Stripes” I shouted, but couldn't be heard over the other incredulous reactions). Now that low morale is on the front page of the Washington Post, maybe he'll retire that talking point? See Many Troops Dissatisfied, Iraq Poll Finds: “A broad survey of U.S. troops in Iraq by a Pentagon-funded newspaper found that half of those questioned described their unit's morale as low and their training as insufficient, and said they do not plan to reenlist.”

Clinton left Bush a great Army, and Bush is destroying it.

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French Court Says Google’s Sponsored Links (Adwords) Can Be a Trademark Problem

Posted on October 16, 2003 by Michael Froomkin

Monday a French court, the Tribunal de Grande Instance de Nanterre, 2ème chambre ruled in Sté Viaticum et Sté Luteciel c/ Sté Google France that Google France violated the trademark rights of a complainant when it displayed a competitor's sponsored links (via its Adword program) in response to a search for the plaintiff's trademark. The decision is subject to appeal.

Google's Adword Trademark policy offers limited review; it's mostly 'let's you and him fight'.

There is one US case that I know of which discusses the issue in the context of serving banner ads, Playboy Enterprises, Inc. v. Netscape Communications Corp., 55 F.Supp.2d 1070 (C.D.Cal., 1999), but it's only a district court, and fairly fact-specific. The court just wasn't persuaded that the use of the terms “playboy” and “playmate”—which it thought generic—was infringement. Even if they weren't generic, it said the banner ads were not infringing or dilution since they clearly advertised something other than the plaintiff's magazine or in any way interfered with the association between the plaintiff's mark and the product. (There may be more cases (there certainly are on meta-tags!), I haven't done a search on this recently.)

The very reliable Trademark Blog has in the past suggested that the US law in this surprisingly complex area is unstable, which seems fair enough as a descriptive matter. But I hope the French rule isn't adopted here.

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9/11 Commission Finds Its Spine

Posted on October 16, 2003 by Michael Froomkin

Another story buried inside the national edition of the Times is Commission on 9/11 Attacks Issues Subpoena to the F.A.A. Here's the key part:

In a statement, the 10-member commission said it learned within the last few days that “various tapes, statements, interview reports and agency self-assessments highly material to our inquiry inexplicably had not been included” in the materials from the aviation agency. “It is clear that the F.A.A.'s delay has significantly impeded the progress of our investigation,” the statement said.

…

Government officials with knowledge of the commission's work said the panel and its staff were particularly alarmed by the discovery that they had not been provided with detailed transcripts and other information about communications on Sept. 11 between the the F.A.A. and the North American Aerospace Defense Command, or Norad, the unit of the Pentagon that is responsible for defending American air space.

I've argued before that the 9/11 commission is a possible sleeper issue of serious magnitude. This latest develpment (cover-up?) is consistent with that hypothesis.

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Leaks About Leaking Investigation

Posted on October 16, 2003 by Michael Froomkin

Much of the most interesting news today was nowhere near the front page of my paper. One of these was the buried item, Senior Federal Prosecutors and F.B.I. Officials Fault Ashcroft Over Leak Inquiry, which appeared on page A16 of the national edition of the New York Times.

Mostly it's a bunch of near-gossip, albeit firmly based on prosecutorial experience: people in charge of investigations that touch their bosses and friends usually suffer, even when they don't screw it up accidentally or on purpose. Recusals protect more than the investigation — they also protect the person with the conflict from accusations. So the professional prosecutors and mid-level politicals in Justice are worried that either Ashcroft will do something bad, or he won't and still get unfairly blamed for it. Either way, the unamed sources think it would be better to get him out of the picture.

There is, however, one smoking gun here. Inexplicably you have to read to the end of the story to find it.

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The Bernstein Cryptography Case Is Dismissed

Posted on October 15, 2003 by Michael Froomkin

It ended not with a bang, but a whimper. Thanks to a strategy of strategic amelioration of rules whenever they looked about to be struck down, combined with judicious promises not to prosecute people who were otherwise covered by the letter of the law, the US government has dodged the whole hail of bullets that was the Bernstein cryptography case. The proceedings produced a great opinion — Bernstein v. U.S. Dept. of Justice, 176 F.3d 1132 (9th Cir. 1999), but it was withdrawn, Bernstein v. U.S. Dept. of Justice, 192 F.3d 1308 (9th Cir. 1999) pending an en banc hearing that never happened. Then it was remanded.

Now comes news that, the Bernstein Cryptography Case Is Dismissed.

Chicago, 15 October 2003 – The longest-running court case against the government's encryption regulations has come to an end, for now.

The regulations were challenged by Daniel J. Bernstein, a professor of mathematics, statistics, and computer science at the University of Illinois at Chicago. Bernstein filed his lawsuit in February 1995 and won four court decisions against the constitutionality of the government's previous regulations.

In an October 2002 court hearing on the current encryption regulations, Department of Justice attorney Tony Coppolino told the court that the government would not enforce several portions of the regulations.

“I can assure you that the regulatory authority does not want [researchers who are collaborating at conferences] sending us an e-mail every time they change something in an algorithm,'' Coppolino told the court. Coppolino also said that commmercial book publishers and assembly-language publishers did not need to obtain licenses.

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