MSBA Computer and Technology Law Section

Minneapolis Photographer Uses Metadata to Successfully sue for Copyright Infringement

Minneapolis photographer Chris Gregerson recently prevailed in a copyright infringement suit against a real estate photographer who used his photos on a Website and in advertising.  More interesting than the $19,462 award: (1) the plaintiff won at trial even though he was pro se and (2) the photos at issue used digital watermarking, where a copyright notice was placed inside the EXIF metadata. Judge Montgomery found that the defendant willfully removed both the visibible watermark, as well as the EXIF metadata, resulting in an award of statutory damages.  The findings include some other good flavor: the defendant allegedly forged a falsified contract with an allegedly fictitious seller, and the notary for the contract resigned his notary license. 

Prior to digital watermarking, photos just had to look the same.  Add Metadata to the mix, and a plaintiff can have near-conclusive proof of infringement.

Decision, coverage, and Gregerson's site documenting the ordeal.

Third Category of Personal Information: "Partially Personal Info"?

The NY Times blog Bits discusses whether IP addresses constitute personal information under privacy law.  Google argues that IP addresses cannot, in isolation, identify a person. But the author counters that the IP address, when used in conjunction with other information (e.g., from an ISP), can identify a person. The author likens an IP address to a retail closed-circuit camera that does not, alone, identify shoppers. But when the video is connected with a shopper's purchase, or with government-provided photos (e.g., drivers license), they can easily identify the person.

The author contends that because IP addresses can personally identify users, it does not fall within the two realms currently considered by privacy law: (1) personally identifiable information and (2) that which is not.  As such, lawmakers should consider whether a third category is appropriate: "partially personal information."

This is an intriguing concept that would change the privacy area's current black-and-white thinking: from a binary "yes" or "no" response to a system with a middle ground. Google's global privacy counsel apparently agrees that a sliding scale within this third category is a good idea, pointing to scholarship in this area.

One thought that readily comes to mind is this: isn't a huge swath of relevant evidence "partially personal information"?  If an investigator talks to the cashier at my favorite lunch spot, he can identify me. Did he just divulge "partially personal information"? The cash-register receipt has partially personal information (the last four digits of my credit-card number).  In nearly every criminal or civil case, litigators daily put together this "partially personal" evidence to connect the dots for the decision-maker. Would my cash-register receipt be subject to state or federal privacy law?  If I tell the cashier to keep it, should he be required to throw it in a shredder, lest this "partially personal information" get into the wrong hands?

The concept of a sliding scale is good, but it would take careful crafting of definitions for this idea to get traction.

I.P. Address: Partially Personal Information [NY Times]

Researchers Developing Software to Detect Photoshopping

Wired is running an article discussing how computer scientists are developing software that attempts to detect when a photograph has been altered. The article discusses legal ramifications of such software -- particularly with regard to criminal defense matters. It appears that the software would not distinguish between arguably permissible alterations (e.g., lightening a scene) and impermissible falsifications (e.g., cloning away evidence). As these tools become more widely available and affordable (one set of tools costs $25,000/year), they may constitute another arrow in the wise litigator's quiver.

Researchers Look to Spot Photo Hoaxes [Wired via AP]

Free Public Access to U.S. Court Decisions

Carl Malamud's latest online "public works" project, public.resource.org, is reported to make available later this week all Supreme Court opinions dating back to the 1700s and all U.S. appeals courts decisions dating back to 1950. Some commentators speculate that Malamud's efforts potentially represent a challenge to paid legal research services Thomson and LexisNexis.  His northern California-based non-profit group last week took delivery of content from Fastcase, which agreed in November to sell the information with no strings attached. Malamud's group has spent the past several days reformatting the data to post on the Web site.

"We're about getting bulk data and making it available," free of charge, to the public, Malamud told the Conneticut Law Tribune. "I want to see all federal case law downloadable in bulk."  He asserted that there are no restrictions on the use of the information after it's downloaded and that it's up to individuals to create Web sites that utilize the information.

Any initiative that "makes case law available for free in new and different ways is something all librarians are in favor of," said Darcy Kirk, associate dean for library and technology and law professor at the University of Connecticut. Read Full Story.

Malamud also recently launched a "PACER recycling site," where users, who have downloaded federal case information at 8 cents per page can upload them to the recycling site to be accessed later free of charge.

Cool Tool: LinkBunch

Most of us are familiar with TinyURL, which converts an unwieldy URL string to a short one.  When the short link is accessed, TinyURL acts as a redirect, sending the visitor to the designated site.

A new site, LinkBunch, enables you to consolidate multiple URLs into one link.  The service is quite simple: paste in each URL and click the "Bunch" button.  LinkBunch creates a unique URL that, when accessed, launches a window containing all of your selected links.  This could be useful in siutuations where space is at a premium, such as IM, texting, email, blogging, etc.  One particularly useful application that comes to mind would be to bundle a number of links to photos stored on a site like Photobucket or Flickr. 

Public Library of Law: Cheap Westlaw/Lexis Alternative

For many laypersons who cannot (or do not want to) spend money for a lawyer, the Internet seems like a good alternative to simply do it yourself.   Of course, those good intentions do not always end well.  That said, plenty of organizations are providing free and cheap services for non-lawyers to have the same electronic resources that were reserved for big-budget firms only 10 years ago.  A new entrant is the  Public Library of Law, which is partnered with the low-cost Westlaw/Lexis alternative, Fastcase. The PLoL provides searches of case law, statutes, regulations, court rules, and legal forms. The site appears to bring a Google simplicity to searching the law.  After briefly browsing the service, it appears that while searches are free, many of the cases require registration with the PLoL (free) or with FastCase (low fee), and many of the legal forms must be purchased from a third-party provider.

Notably, members of the Minnesota State Bar Association have free access to FastCase through the MSBA website. While it may not be as comprehensive as Westlaw or Lexis, it may serve as a good start for cost-sensitive or pro bono clients.

Lawyers will probably want to stay with their research tools of choice, but the Public Library of Law is worth noting, as a service that clients (or future clients) may be relying upon before seeking your advice.

Public Library of Law
http://www.plol.org/

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Law Firm's Faulty IT Policy Not Excusable Neglect to Avoid Sanctions

In this U.S. Magistrate's July, 2007 Order (which I just discovered today), the court found that attorneys' non-receipt of emails from the U.S. Court, District of Colorado, caused by a firewall setting, was not excusable neglect to avoid the sanction of attorney fees for the firm's attorneys' failure to appear at a settlement conference.

The court heard evidence from the firm's IT administrator that the firewall setting was modified —without notice to these particular attorneys— in response to complaints from some of the firm's employees concerning sexually explicit junkmail.  Moreover, although the administrator added the Colorado state courts to the whitelists, he failed to add the cod.usCourts.gov (U.S. Court, District of Colorado) domain.

Although the magistrate found that the neglect was not willful or wanton, he nevertheless found that the attorneys were, "the responsible persons to adopt internal office procedures that ensure the court’s notices and orders are brought to their attention once they have been received."  Thus, under Fed.R.Civ.P. 16(f), they were jointly and severally sanctioned for attorney fees and costs relating to the settlement conference and the additional hearings incident thereto.

This decision, `though not a precedent, is another salient reminder that attorneys are increasingly being required to keep up with technology that often is out-of-scope for their training and expertise or, alternatively, to retain competent staff.

Ethical Considerations for Law Firm ESI

Last year, I posted a lengthy article (here) concerning potential ethical obligations that attorneys and computer forensics professional might owe each other and where the separation of duties may be blurred.

Along similar lines, a ethics opinion released recently by the Maine Board of Bar Overseers addressed the ethical implications of using a third-party to process and store a law firm's electronically stored information (ESI). (Hat tip to The Legal Profession Blog for this one). The opinion provides, in pertinent part:

With the pervasive and changing use of evolving technology in communication and other aspects of legal practice, particular safeguards which might constitute reasonable efforts in a specific context today may be outdated in a different context tomorrow. Therefore, rather than attempting to delineate acceptable and unacceptable practices, this opinion will outline guidance for the lawyer to consider in determining when professional obligations are satisfied.

At a minimum, the lawyer should take steps to ensure that the company providing transcription or confidential data storage has a legally enforceable obligation to maintain the confidentiality of the client data involved. See ABA Ethics Opinion 95-398 (lawyer who allows computer maintenance company access to lawyer's files must ensure that company establishes reasonable procedures to protect confidentiality of information in files, and would be "well-advised" to secure company's written assurance of confidentiality); N.J. Sup. Comm. Prof. Ethics Opinion 701 ("Lawyers may maintain client files electronically with a third party as long as the third party has an enforceable obligation to preserve the security of those files and uses technology to guard against reasonably foreseeable hacking.")

In the U.S., there is presently neither a universal code of professional conduct or responsibility nor a national licensing body for computer forensics examiners or legal technologists. Certainly, there is none that I know of for data warehousing. In addition to the suggestions I made in the earlier post (which included working under a well-drafted contract), one consideration in selecting an expert is whether he or she belongs to a professional organization (e.g., IACIS, HTCIA, etc.) that imposes a code of ethics on its members and offers hortarory guidelines for separation of duties, among other things.

Double-check that mail-to address before hitting "send" on that sensitive email.

Here is a tragic example of what can go wrong when you send a sensitive document to the wrong party.

The hapless attorney who mis-mailed a document outlining a billion dollar settlement deal may have simply been the victim of his/her email program's address autocomplete function, resulting in the message being sent to a New York Times reporter with the same surname as the intended recipient.  Outlook has that autocomplete function, as do some of the webmail services (e.g., Gmail).

It goes without saying that any "attorney-client privileged...for intended recipient" signature file that may have been included had no effect whatsoever in stopping the Times reporter from scooping the story.

Cheers.