Technical-Legal Confluence News

The case Bindrim v. Mitchell, in California, in 1979, establishes the idea that “real people” who are depicted in a novel (in this case, “Touching“, by Gwen Davis) purporting to be “fiction” can bring legal action (such as libel or invasion of privacy) if a reasonable person would know that the character in the novel really is supposed to “be” that person. A UMKC law school link is here.

Time Magazine has an old article from Mar. 17, 1980 “Writers’ Rights and Wrongs: A publishing house throws the book at one of its authors,” link here. This refers to the fact that typically authors have to indemnify publishers against loss, and today Internet self-publishers have to indemnify ISPs (as part of “terms of service”), even though, in practice, such contract provisions have generally been only very rarely enforced for obvious business reasons. (ISP’s have pursued people in spam-related cases.)

It is not necessarily true that this principle would hold in other states in which it has not been litigated.

There is another case in Vermont, Garrido v. Krasnansky, this a divorce proceeding, in which a judge has ordered on party to stop talking about a case online. The case is interesting because the online talk was a blog that purported to be “fiction.” I did not find a court opinion on line, but here is a blog entry from Info Law on the case, here.

Another problem known to have occurred but not litigated (in Virginia) is where an individual used a character based on himself in a fictitious setting on-line in an unfavorable way to make a “political point,” and a principal at a public school where the person worked tried to have the person removed. Eventually the person left for other reasons. It is not clear as a matter of law whether the “Bindrim” principle would apply to a likeness of the self, especially in a state other than California or Vermont.

It’s also interesting to wonder when rulings can be used from other states to make arguments to establish the same precedent in a new state. “Full Faith and Credit” applies to contracts (usually marriage, until now), but not for other legal doctrines.

It’s possible that an objection to “real life resembling” fiction may become stronger if some of the content is actually based on factual events, even if names (and perhaps places or times) are changed.

The “fact or fiction” issue also obviously ties into the new controversies about “online reputation defense.”

The law that resides at the heart of controversy over digital copyright management is the Digital Millennium Copyright Act of 1996 (DMCA).

The text of the law is on Wikisource, here.

There is a supplement called “Limitations of Liability Relating to Material Online,” section 512, Cornell link here (also called the “Online Copyright Infringement Liability Limitation Act” (OCILLA), or the “safe harbor” provision.

The law is controversial for a number of reasons. One is that manufacturers are forced to use the copy protection technology of one vendor (Macrovision). A totally unrelated controversy concerns the takedown provision. Web hosts are immune from copyright infringement liability if they follow takedown requests, and then have little incentive to challenge the legitimacy of infringement claims. There have also been DMCA-related requests to take down links to infringing material, and this is a legally gray area.

Another concern is that the DMCA can hinder the efforts of “newbie” artists to manufacture and distribute their own works for free or low-cost consumption. Some people feel that DMCA and related laws are intended to protect “entrenched media” from low cost competition.

A website called Chillingeffects keeps a log of DMCA “cease and desist” letters.

The Sonny Bono Copyright Term Extension Act of 1998 is here.
extends copyright terms for 20 years.

There have been several attempts to modify the law.

109th Congress.

These bills are “dead” but it is likely that similar ones will be reintroduced.

H.R. 4569: Digital Transition Content Security Act of 2005, to close an “analog” loophole and require certain analog devices to have copy protection.
Govtrack link.

H.R. 1201: The Digital Millennium Consumer Rights Act of 2005 (DMCRA) would refine the DMCA provisions and restore some ordinary “fair use” for consumers as was common previously with CD’s, cassettes, and vinyl phonograph records.

Govtrack here.

Some court cases:

Chamberlain v. SkyLink (DC Circuit Court of Appeals, 2004, here)
(may require registration), a case involving automated garage door openers

Universal v. Reimerdes, distribution of DeCSS, reverse engineering allowing decryption of DVDs. Trial court opinion (2001), here, was upheld in Second Circuit (resolved in favor of copyright holder)

U.S. v. ElcomSof and Skylaorv (criminal prosecution), Electronic Frontier Foundation reference.

Lexmark v. Static Control Components. Intervention of a printer’s microcontroller to allow other printer cartridges does not violate the DMCA (6th Circuit). Link here.

MGM et al. v. Grokster et. al (2005), opinion here.

The Supreme Court allows downstream liability for software vendors or service vendors when their “business model” is based on encouraging copyright infringement.

I have running news occasionally on this issue on my main blog (intermixed with many other issues), link.

A major attempt in the 108th Congress was S. 2560, “Inducing Infringement of Copyrights Act of 2004,” govtrack here.

Although I haven’t started to post state legislation here, new state laws, especially from major states when they set examples for other states, ought to be mentioned. Such is the case with California’s Student Civil Rights Act, SB 777. The law requires protection from all recognizable suspect classes from discrimination in education, and this includes gender identity and sexual orientation. The law includes language referring to a public perception that a person belongs to such a group, whether or not that is true. The law requires some content neutrality and objectivity in presenting issues with regard to these groups in the curricula.

The master link is this.

The main link for the text is here.

California Gov. Arnold Schwarzenegger signed this bill into law in September 2007.

I have running news on LGBT issues (including education, schools, and “don’t ask don’t tell” for the miltiary), on my LGBT blog, link here.

Update: Aug 29, 2008

Here is a reference “OVERVIEW OF THE RIGHTS OF GAY, LESBIAN AND BISEXUAL TEACHERS”
by Mary L. Bonauto, Esq. at qrd, with this URL.

So far, the heart of email spam control is contained in the Can-Spam Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003).

One of the most objectionable processes that occurs with spam is email sender “spoofing” although most home users now understand that this happens.

The full text of the law may be found here.

One major controversy was the reliance of the Act on the 10-day opt-out mechanism. Many people wanted an opt-in requirement.

The FTC factsheet (with a “Requirements for Commercial Emailers”) is here.

There is a PDF with the “final rules” here.

The FTC fact sheet for home consumers and home users is here.

With regard to telemarketing:

The Do Not Call Implementation Act of 2003
FCC link is here.

The Federal Registry has a “telemarketing sales rule,” here.

The Junk Fax Prevention Act of 2005 (S. 714, 109th Congress)
Thomas.

The “Free Flow of Information Act of 2007” , S. 2035, was introduced in Oct. by Sen. Arlen Specter R-PA with 6 cosponsors. The govtrac reference is here.

The CRS summary is here.
The bill provides some reasonable protections to journalists of their sources. Defines “covered person” as a person engaged in journalism, including their supervisor, employer, parent, subsidiary, or affiliate. It’s not clear that this would include “amateur” bloggers.

The text is here.

An earlier version was introduced in May 2007 by Richard Lugar R-IN, link here.

The house version is H.R. 2102 , same title, introduced by Frederick Boucher (D-Va), link here.

The House also has a resolution to consider the bill, introduced by Louise Slaughter D-NY:, here.

The most important legislation regarding consumer protection and identity theft prevention right now in the 110th Congress is probably S. 495, the Personal Data Privacy and Security Act of 2007, introduced by Patrick Leahy (D-VT) with six cosponsors.

The major Govtrack reference is here.

The Congressional Research Service Summary is here.

The bill would enhance the penalties for activities that compromise the data security of consumers. Interstate data brokers would have to provide information on consumers when requested. Security requirements already known in the health care industry with HIPAA would exist in other industries. The bill would create an office of Federal Identity Protection.

The full text is here.

There is still a good question as to how much due diligence financial institutions should perform to identify consumers.

The 109th Congress had many such bills that died.

In the 110th Congress, the House has H. R. 958, the Data Accountability and Trust Act, introduced by Bobby Rush (D-IL).

The Govtrack reference is this.

The CRS summary is here.

The full text is here.

But the House has also introduced H.R. 3046, the Social Security Number Privacy and Identity Theft Protection Act of 2007, introduced by Michael McNulty (D-NY). The Govtrack link is here.

The CRS summary is here.

The bill would prohibit the public display of SSN’s on certain government documents, and it would prohibit the sale of social security numbers by private interests.

The text of the bill is here.

For reference, I give the FTC link for the Fair Credit Reporting Act, last amended in 1996, originally passed in 1970 (PDF).

The Treasury Department’s copy of the Fair and Accurate Credit Transactions Act of 2003 is here (pdf).

A related bill will be H.R. 4008, Credit and Debit Card Receipt Clarification Act of 2007, introduced by Tim Maloney, govtrack reference here.

The FTC copy of the Fair Debt Collection Practices Act (1978) is here (pdf).

I have running news on a blog that deals with proposed technical solutions to the identify theft problem, link here.