MSBA Computer and Technology Law Section

File Sharing from Work? Not Good

According to the Washington Post (here), an investment firm employee —possibly sharing media files— was using LimeWire (an Internet peer-to-peer file sharing utility) from his employer's network —yes, his work computer.  His folly exposed the names, birth dates and Social Security numbers of about 2,000 of the firm's clients, including a number of "high-powered lawyers" and Supreme Court Justice Stephen G. Breyer. The breach was not discovered for nearly six months.

According to Robert Boback, chief executive of the company hired by Wagner to help contain the data breach and interviewed by The Post, such security breaches aren't uncommon. About 40 to 60 percent, he said, of all data leaks take place outside companies' secured networks --usually as a result of employees or contractors installing file-sharing software on company computers.

An interesting inference this Post article is that one settlement outcome of litigation arising over data breaches may include a determinate period of free credit monitoring (provided by firms such as FirstAdvantage) for class members whose data has been compromised.

Four online law school grads admitted to SCotUS

Four graduates of an entirely online law school became the first attorneys to be admitted to the U.S. Supreme Court last week. Read full story. To be admitted to the U.S. Supreme Court, each attorney must be a member with good standing of the bar for three years and be sponsored by two attorneys already admitted to the Supreme Court.

The school, Concord Law School, was founded in 1998 and is one of only two or three entirely online law schools.  None, however, is ABA accredited. (The ABA’s general policy under Standard 304(f) states that “a law school shall not grant credit for study by correspondence.” Click here ).

Four graduates were admitted in open court: Larry David, an international businessman and attorney in Pasadena, Calif., who volunteers at the Los Angeles County Bar Association Barristers Domestic Violence Project; Michael Kaner, a dentist in Newtown, Pa., who is a consultant on risk management and forensic dentistry; Ross Mitchell, a computer systems consultant in West Newton, Pa., who is advocating online legal education and the expansion of the multijurisdictional practice of law; and Sandusky Shelton, a retired telecommunications manager from Clio, Calif., who handles court-appointed juvenile dependency cases.

Another "Blogger Beware" development

Patent Troll Tracker Blogger and lawyer Richard Frenkel is now a defendant in two defamation suits: one by John Ward Jr., a partner in Ward & Smith in Longview, Texas (and son of U.S. District Judge T. John Ward (E.D. Tex.)) and another by Eric Albritton of the Albritton Law Firm in Longview, Texas.  Both plaintiffs contend that Frenkel injured their reputation by making false factual assertions on his Patent Troll Tracker blog during the course and scope of his employment at Cisco that plaintiffs conspired with the "Clerk of the U.S. District Court for the Eastern District of Texas" to "alter documents to try to manufacture subject matter jurisdiction where none existed" and that plaintiffs "conspired with others to alter the filing date on a civil complaint," according to the complaints filed in both cases.

One of plaintiff's attorneys asserts that Frenkel's allegations in the blog are not "protected speech" under First Amendment law.

Read full story here.

Bill Proposes Internet "Network Neutrality"

"This is the essence of the Ed Markey's (D., Mass.) Orwellian-named Internet Freedom Preservation Act of 2008, which would foist network neutrality on the wild and woolly Internet."  So begins this February, 25 2008 Wall Street Journal article, entitled, Internet Wrecking Ball, discussing the bill that proposes to regulate or "ration" TCP/IP packets and internet bandwith.

Markey's press release (here) states, in pertinent part:

The goal of this bipartisan legislation is to assure consumers, content providers, and high tech innovators that the historic, open architecture nature of the Internet will be preserved and fostered.  H.R. 5353 is designed to assess and promote Internet freedom for consumers and content providers.

The full text of the proposed bill is here.

A summary of the Act is here.

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.

RIAA asserting, "that it is illegal for someone, who has legally purchased a CD," to xfer to his PC?

Okay, the quote is not from the RIAA but, rather, taken from this Dec. 30, 2007 WashingtonPost.com article, Download Uproar: Record Industry Goes After Personal Use.  According to the reporter, Marc Fisher, the Recording Industry Association of America (RIAA), "In legal documents in its federal case against Jeffrey Howell . . ., who kept a collection of about 2,000 music recordings on his personal computer, . . . maintains that it is illegal for someone, who has legally purchased a CD to transfer that music into his computer." [emphasis in the orig.] 

The case is Atlantic Recording Corp. v. Howell.

In fact, the RIAA Web page concerning piracy does state, in pertinent part:

[T]here’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns . . . Enjoy the music.

However, like the Minnesota PGP case that I characterized in another post as widely misrepresented, I believe that the position of RIAA and Atlantic in this case appears to be similarly misconstrued. If one actually reads the supplemental brief, Atlantic makes clear that the gravamen of the claims isn't the possession of a backup copy of legally purchased materials but, rather, the fact that the backup copy resided in a folder share that was utilized by a file-sharing program:

It is undisputed that Defendant possessed unauthorized copies of Plaintiffs’ copyrighted sound recordings on his computer. Exhibit B to Plaintiffs’ Complaint is a series of screen shots showing the sound recording and other files found in the KaZaA shared folder on Defendant’s computer on January 30, 2006. Virtually all of the sound recordings on Exhibit B are in the “.mp3” format.  Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use.  The .mp3 format is a “compressed format [that] allows for rapid transmission of digital audio files from one computer to another by electronic mail or any other file transfer protocol.”  Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs. Moreover, Defendant had no authorization to distribute Plaintiffs’ copyrighted recordings from his KaZaA shared folder. Each of the 11 sound recordings on Exhibit A to Plaintiffs’ Complaint were stored in the .mp3 format in the shared folder on Defendant’s computer hard drive, and each of these eleven files were actually disseminated from Defendant’s computer. Each of these actual, unauthorized disseminations ofPlaintiffs’ copyrighted works violates Plaintiffs’ exclusive distribution right under the Copyright Act. In addition, Defendant unlawfully distributed all 54 of Plaintiffs’ Sound Recordings by making unauthorized copies of the recordings available to other KaZaA users for download.

Id. at 15-16. [citations to the record and authorities omitted; emphasis supplied].

Notably, Atlantic complained that Howell had spoliated evidence of his alleged wrongdoing, an allegation that we're seeing raised more and more often in litigation, as lawyers start catching on to electronic discovery practices:

One of the best ways to test a defendant’s denial of responsibility for illegal file sharing would be to look at the contents of the defendant’s computer hard drive, which would show, among other things, the existence of peer-to-peer software programs, the user’s chosen preferences for the use of such programs, the dates of use of such programs, the profile of the individual using such programs, and any sound recordings that were downloaded using such programs. A forensic examination might also provide indications of particular instances of distribution from Defendant’s shared folder. That information, however, has now been intentionally “wiped” from Defendant’s computer. Defendant’s intentional destruction of this evidence severely and irreparably prejudices Plaintiffs’ ability to prove their claim against Defendant and warrants harsh sanctions. 

Supplemental brief at 14.

North Dakota Provides e-Access to Bar Disciplinary Proceedings

Some believe strongly that open access to case information, such as bar disciplinary proceedings, is necessary in order to determine whether self-regulation adequately serves the public interest. See, e.g., Attorney Discipline Web Data Uneven, Nat'l Law Review, Sept. 10, 2007.

A Web site maintained by the North Dakota Supreme Court provides a statement of issues and briefs in advance of oral arguments and then the audio of oral arguments afterwards. Click here for one case example.

For related topics, see also Availability of Online Resources May Be One Reason for Reduction in U.S. S.Ct. Caseload and Google aids public record accessibility.

Use mediocre computer forensics expert and discover that the "Safe Harbor" provision is very shallow!

In April, Damien Riehl brought us the story of the Eight Circuit's ruling in Greyhound Lines, Inc. v. Wade that there was no abuse discretion in a trial court's denial of sanctions for spoliation, where the movant failed to demonstrate intent and prejudice.  In another post, last month, I discussed the precarious possibilities of forensics experts, who can ruin a case.

Bringing these two topics together, we have the case of Doe v. Norwalk Community College, where the U.S. District Court in Connecticut imposed spoliation sanctions for a party's failure to prevent the destruction of evidence. Defendants sought shelter under safe harbor provision of Fed.R.Civ.P. 37(f), but the district court disallowed the defendants to take advantage of the provision, since they made no attempts to preserve relevant evidence.  The credibility of the computer forensics experts (or non-experts, depending how one might characterize them) decided the outcome of this case.  >> read more >>

Availability of Online Resources May Be One Reason for Reduction in U.S. S.Ct. Caseload

According to Chief Justice John Roberts, the number of cases heard by the U.S. Supreme Court is declining in part because circuit courts can locate previous legal decisions online in cases where they might have once turned to the Supreme Court for guidance. >> full article text >>  This admission, combined with the recent rule change concerning unpublished opinion citation, adds an interesting twist to the ongoing debate concerning the availability of online opinions, online briefs and electronic access to court records.

Virtually Legal?

As a reminder, the Computer and Technology Section Annual Meeting is coming up!  Professor Christina L. Kunz will be presenting a great topic: Online Role-Playing Games: Legal Issues Go Virtual.

As an example of this topic, Regina Lynn provides an interesting commentary on Wired.com to a current rape investigation by Brussels police - a rape that occurred in the virtual world of Second Life.