Dan's New Blog

So says Wired. What I never knew is that it took them 7 years to get to the point where they indexed all federal and state courts.

Yesterday a jury returned its verdict in the seven-year legal battle between SCO Group and Novell: SCO does not own the copyrights to UNIX and, by extension, they cannot demand licensing fees from companies that use Linux.

Huh?

Let’s explore the case. Back in late 1995 Novell sold Unix to The Santa Cruz Operation, SCO’s predecessor. The contract was confusing as to who actually owned the copyright for the code. SCO claimed that it was the rightful owner — or if it wasn’t, it should be as a result of the sale. Eight years later, SCO sued IBM, claiming IBM included bits of SCO’s copyrighted UNIX code in its version of Linux. Novell disputed that claim, saying that it owned the copyrighted code and it was just fine with Novell if IBM used it in Linux. (Still with me? Good.)

Three court cases enused. SCO lost the first in August 2007 when a Utah federal judge ruled that SCO didn’t own the copyrighted code. However, SCO sorta won when the Tenth Circuit ruled last August that the issue of who owned the copyrights needed to be settled by a jury. Hence the decision yesterday.

Despite its 1-2 won-loss record in this case, SCO isn’t giving up. According to The Salt Lake Tribune:

“As for SCO, [Edward] Cahn [the trustee running SCO as part of its bankruptcy proceedings] said the company would discuss what the ruling means for its Unix business. He pointed out that presiding U.S. District Judge Ted Stewart still has parts of a verdict to render that will affect the case’s final outcome. For example, Stewart is being asked to rule whether Novell still needs to transfer the copyrights to SCO as part of the sales contract and whether Novell had the right to waive SCO’s claims against IBM. ‘We still have claims against IBM irrespective of this verdict,’ Cahn said.”

The takeaways?

• Whenever you buy something really big or expensive, always take the time to read the fine print. (I’m looking at you, eBay.)

• SCO’s sole line of business appears to be litigation. (Look for the highlighted words.)

• This is a big deal for Linux and open source software, but will go unnoticed by almost everyone.

It was Weekend Update time a couple of days early yesterday as YouTube-Google and Viacom fired point-counterpoint blog posts at each other in their ongoing (never-ending?) copyright infringement suit.

Viacom opened with a pithy statement about the facts of the case:

“YouTube was intentionally built on infringement and there are countless internal YouTube communications demonstrating that YouTube’s founders and its employees intended to profit from that infringement … Google bought YouTube because it was a haven of infringement … The law is clear that Google and YouTube are liable for their infringement. The Supreme Court unanimously held in Grokster that a service that intends infringement is liable for that infringement. No case has ever suggested that the [Digital Millennium Copyright Act] immunizes rampant intentional infringement of the sort Google and YouTube have engaged in.”

(Could you say “infringement” one more time, please, in case somebody out there didn’t get it?)

YouTube’s counterpoint can be boiled down thusly:

“With some minor exceptions, all videos are automatically copyrighted from the moment they are created, regardless of who creates them … The issue in this lawsuit is not whether a video is copyrighted, but whether it’s authorized to be on the site. The DMCA (and common sense) recognizes that content owners, not service providers like YouTube, are in the best position to know whether a specific video is authorized to be on an Internet hosting service. Because content owners large and small use YouTube in so many different ways, determining a particular copyright holder’s preference or a particular uploader’s authority over a given video on YouTube is difficult at best. And in this case, it was made even harder by Viacom’s own practices. For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately ‘roughed up’ the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom … Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself. Given Viacom’s own actions, there is no way YouTube could ever have known which Viacom content was and was not authorized to be on the site. But Viacom thinks YouTube should somehow have figured it out. The legal rule that Viacom seeks would require YouTube — and every Web platform — to investigate and police all content users upload, and would subject those web sites to crushing liability if they get it wrong.”

(Both Viacom and YouTube have figured out that in the legal biz, if the other side does something more than once, you call it “countless”.)

Now over to Viacom for the last word:

“The statements by Google regarding Viacom activities are merely red herrings and have no relevance on the legal facts of this case.”

The USPTO has concluded its reexamination of Amazon’s “1-Click” patent and has confirmed it:

“As amended, claims 1 and 11 now positively recite ‘a shopping cart model’.”

(Dramatic, huh?)

Anyway, Amazon isn’t out of the woods on this one yet. The U.S. Supreme Court has agreed to hear the Bilski case, which concerns whether business methods can be patented. If the court rules against them, 1-Click could be toast anyway.

BoingBoing reports on a suspected ATM-skimmer who swallowed a USB flash drive containing incriminating data while he was being arrested by the Secret Service. After 4 days with zero throughput, doctors had to remove the device. (I swear I thought of that before I read the comments on the BB post.)

Last August Mr. Macy (Eric Schmidt of Google) and Mr. Gimbel (Apple’s Steve Jobs) had to part ways. It was ostensibly for antitrust reasons — the 2 competing companies had common board members, including Schmidt himself. Today we found out another reason: Apple has filed suit against mobile handset maker HTC (JC Penny?), who just happens to make many of the Android-based phones that Google’s so fond of.

I’m not thinking Macy’s is gonna want to send customers to Gimbels the way they did before.

After yesterday’s crazy guilty verdict for 3 Google execs in the Italian YouTube case, I decided to do a quick-and-dirty recap of the state of Internet censorship in the European countries with the highest rates of Internet access.

Germany

Last week German President Horst Kohler signed a law aimed at blocking access to child porn sites. That law was introduced by the previous coalition government. It was very unpopular and the new government doesn’t want to enforce it:

“The German government now finds itself in the embarrassing situation of having a law it no longer wants. Justice Minister Sabine Leutheusser-Schnarrenberger said Wednesday that the government was unanimous that it would not apply the new law. ‘New regulations will quickly be introduced that correspond to the principle of deleting rather than blocking access,’ she said. The Interior Ministry also said in a statement that the government plans to introduce a new law reflecting the new approach. Until that law is passed, the government’s position is that offensive sites should be deleted, rather than access blocked, the statement said.”

UK

The Internet Watch Foundation is the choke point that “combat[s] online child sexual abuse content in partnership with police, government and the online industry”. The only problem, according to Frank Fisher of The Guardian, is:

“The IWF, a notionally independent charity, in fact acts as a quasi-governmental clearing house for every nutjob with a bee in his bonnet about other people’s surfing habits. Without any legal authority or legislative backing, this secretive group prepares a list of prohibited IP addresses, which it forwards to ISPs, and to the British government. We’re not privy to any information regarding the British government’s own additions to the list – they could add anything. No one outside a tiny department in the Home Office would know.”

France

A law making its way through the French parliament would, if approved, allow the government to block access to “criminal” Websites. Again, this is all under the guise of fighting child porn. Unlike the UK system, the French Interior Ministry would maintain the list of banned sites.

Did I mention that this is an election year?

“The French government’s hard line should not surprise anyone. In a few weeks’ time, regional elections will take place in France. In the 2004 regional elections, Sarkozy’s UMP party did particularly badly. By showing himself to be a tough leader, Sarkozy hopes to avoid history repeating itself and shore up support for his policies … He is hoping that fear of criminals will convince voters to come to the polling booths. In that respect, there is no more suitable issue than child pornography on the Internet and the hunt for pedophile criminals whose only desire is to seduce innocents via their home computers. According to that argument, it is necessary to impose controls on the digital world and introduce state surveillance, so that a pro-active Big Brother can fight the cyber world’s sexual deviants who are, in all likelihood, lurking on Facebook or Twitter.”

Italy

The NY Times reports today that the case may not have been about “protecting human dignity,” as the prosecutor said:

“In Italy, where Prime Minister Silvio Berlusconi owns most private media [including television stations - ed.] and indirectly controls public media, there is a strong push to regulate the Internet more assertively than it is controlled elsewhere in Europe. Several measures are pending in Parliament here that seek to impose various controls on the Internet. Critics of Mr. Berlusconi say the measures go beyond routine copyright questions and are a way to stave off competition from the Web to public television stations and his own private channels — and to keep a tighter grip on public debate.”

The NY Times reports that regulators are looking at whether Google is stifling search competition in Europe. The case involves 3 search competitors: UK price-comparison site, Foundem; French legal search engine ejustice.fr, and Ciao! from Bing. They are claiming that Google doesn’t give them the search rankings they deserve.

I’ve noted before how the EU seems to regard U.S. tech companies as ATM machines. Google, however, is pointing the finger at Microsoft:

“Given that these complaints will generate interest in the media, we wanted to provide some background to them. First, search. Foundem – a member of an organisation called ICOMP which is funded partly by Microsoft – argues that our algorithms demote their site in our results because they are a vertical search engine and so a direct competitor to Google. ejustice.fr’s complaint seems to echo these concerns … Regarding Ciao!, they were a long-time AdSense partner of Google’s, with whom we always had a good relationship. However, after Microsoft acquired Ciao! in 2008 (renaming it Ciao! from Bing) we started receiving complaints about our standard terms and conditions.”

Or maybe not. Italian judge Oscar Magi yesterday convicted 3 Google executives — David Drummond, Peter Fleischer and George Reyes — of violating Italian privacy laws in the case of a YouTube video uploaded by students tormenting a handicapped classmate. Google removed the offending video immediately once it was notified about it, but apparently that wasn’t enough for the Italian court.

When I blogged about this previously, I asked, “Does this make sense to you?” I’m still asking this question. Why doesn’t Google have a safe harbor in this case? Google wants to know, too:

“But we are deeply troubled by this conviction for another equally important reason. It attacks the very principles of freedom on which the Internet is built. Common sense dictates that only the person who films and uploads a video to a hosting platform could take the steps necessary to protect the privacy and obtain the consent of the people they are filming. European Union law was drafted specifically to give hosting providers a safe harbor from liability so long as they remove illegal content once they are notified of its existence. The belief, rightly in our opinion, was that a notice and take down regime of this kind would help creativity flourish and support free speech while protecting personal privacy. If that principle is swept aside and sites like Blogger, YouTube and indeed every social network and any community bulletin board, are held responsible for vetting every single piece of content that is uploaded to them — every piece of text, every photo, every file, every video — then the Web as we know it will cease to exist, and many of the economic, social, political and technological benefits it brings could disappear.”

… But this appears, at first blush, to be a *huge* privacy no-no by Lower Merion School District.

In a civil suit filed in U.S. Eastern District Court, school administrators are accused of “indiscriminate use of and ability to remotely activate the webcams incorporated into each laptop issued to students by the School District.” At the heart of the case is a Harriton High student who was disciplined by the school for “improper behavior in his home.” The school produced an image from his webcam as evidence.

Read the last 2 sentences again. Doesn’t that sound real chilling? Doesn’t that sound like:

“The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”

UPDATE, February 19: Here’s Lower Merion’s response:

“The District is dedicated to protecting and promoting student privacy. The laptops do contain a security feature intended to track lost, stolen and missing laptops. This feature has been deactivated effective today … The tracking-security feature was limited to taking a still image of the operator and the operator’s screen. This feature has only been used for the limited purpose of locating a lost, stolen or missing laptop. The District has not used the tracking feature or web cam for any other purpose or in any other manner whatsoever.”

UPDATE, February 20: Now the FBI’s investigating. LMSD spokesman Doug Young also said that the district activated webcams 42 times over the last 14 months, and that it “never violated its policy of only using the remote-activation software to find missing laptops. ‘Infer what you want,’ Young said.”