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No Injunction for SearchKing

January 27, 2003 by

The judge in the SearchKing v. Google case has denied SearchKing’s request for a preliminary injunction. (See the bottom of this posting for background on the case.) James Grimmelmann at LawMeme analyzes the ruling. The court ruled that Google’s page rankings are opinions and so are protected by the First Amendment.

It’s interesting that the court found the page rankings to be opinions, even though they are generated automatically by a computer algorithm. In other words, page rankings don’t necessarily reflect the judgment of any person or group of people (at least not directly), except in the metaphysical sense that Google’s algorithm extracts the collective judgment of all of the webpage authors in the world.

A person identifying him/herself as a lawyer for SearchKing comments on the LawMeme site:

As Search King’s attorney, I can tell you a Rule 59 Motion to Alter Judgment was filed along with Search King’s Response to the Motion to Dismiss. In those pleadings we show the Court Google has a patent on PageRank. It also has been presented by its “inventors” as truly objective. (how does one “invent” an opinion?) If Google continues on its path of First Amendment protected opinion, there could be objections to its patent filed. Something to ponder….

It seems to me perfectly consistent to say something is an opinion and that it was arrived at by an objective procedure. Anyway, isn’t SearchKing’s whole case predicated on the claim that Google is not treating SearchKing objectively?

[Background on the SearchKing case: SearchKing sells a service that claims to raise people’s page rankings on the Google search engine. Google adjusted their page ranking algorithm to demote SearchKing’s pages. SearchKing sued Google, asking the court to grant a preliminary injunction requiring Google to restore the page rankings of SearchKing’s pages. The judge just denied that request. Google’s motion to dismiss is apparently next on the agenda.]

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More on the Insecurity of Door Locks

January 23, 2003 by

Seth Finkelstein has unearthed two previous mentions of the method used in Matt Blaze’s door-lock attack. It’s clear that this problem was known in some circles. Now the rest of us know too.

I wrote previously that I’m glad the DMCA doesn’t apply to door locks. Chris Smith, over at Mutatron, wonders whether the DMCA does apply to door locks. He seems pretty sure that it does, at least where the locked door is protecting access to copyrighted materials.

This use of the DMCA seems an even bigger stretch than the garage-door-opener case and the toner-cartridge case, but it’s not totally ridiculous. Does a door lock, “in the ordinary course its operation, require[] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to [a copyrighted] work”? If most doors control access to copyrighted works, then the question boils down to the “authority of the copyright owner” clause, which has been a slippery one in past DMCA cases.

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Most Door Locks Insecure

January 23, 2003 by

John Schwartz at the New York Times reports on a blockbuster piece of research by cryptographer Matt Blaze. Matt applied the principles of cryptography to good old fashioned door locks and keys, and what he found is pretty horrifying. Given a key to one of the locks in a building, and a small number of key blanks, there is a method by which you can make a master key that opens all of the locks in the building.

Apparently some locksmiths have known this was possible for a long time. The lock manufacturer Schlage has even taught locksmiths how to carry out a version of Blaze’s attack. Yet somehow they never bothered to tell their customers.

This is why we need independent analysis of security technologies. Manufacturers will keep important information from their customers, even information that impacts the basic security decisions of the customers. Bans on security analysis, or bans on the dissemination of results, just help manufacturers keep their customers in the dark. Thank goodness there is no DMCA for door locks.

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Copyright and Rhetoric

January 22, 2003 by

In a much-acclaimed blog posting, Doc Searls writes that the limited-copyright folks are losing the rhetorical battle to the copyright expansionists.

I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court.

[…]

Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.

I would go further and say that focusing on the role of the public domain is bad rhetorical strategy. It’s not that the public domain is unimportant. It’s just that public-domain arguments end up sounding like, “We want to use your stuff.” By making a public-domain argument, you’re inviting the accusation that you’re a freeloader trying to make money off the creativity of others. You’re saying, in effect, that certain ideas are the property of the public, and so you’re buying in, indirectly, to the concept of ideas as property.

A better rhetorical strategy is to focus on the entangling effects of copyright on everyday life, including ordinary creative work. The argument is simply that copyright has become a wide-ranging regulatory scheme that goes far beyond its proper role of protecting the legitimate rights of authors. A great example of this is the section of Lessig’s The Future of Ideas about the documentary filmmaker. The filmmaker isn’t trying to copy other people’s work. But because so many everyday objects are the subject of intellectual property claims, filming everyday life becomes problematic, with too many rights to be “cleared”. Expansionist IP claims entangle ordinary creativity, even when nobody is trying to copy anything.

Even the record companies complain about the difficulty of “clearing” rights to recorded music so that they can sell it online. When the big copyright owners find the system too onerous and complicated, that’s a rhetorical opportunity.

This strategy also exploits the ever-growing stock of copyright horror stories. When the Girl Scouts are worried about what they can sing around the campfire, or when the DMCA is being used to regulate garage door openers, you’re seeing the tentacles of copyright reaching into places where it doesn’t belong.

“Free the mouse” is a catchy slogan, but we would do better by talking more about our own freedom and less about Mickey’s.

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Court Orders Verizon to Reveal Customer's Identity

January 21, 2003 by

U.S. District Court Judge John D. Bates has ordered Verizon to turn over to the RIAA the identity of a Verizon customer who allegedly used Verizon’s ISP service to infringe copyrights on recorded music. Verizon had argued that they should not be compelled to reveal this information.

More to come, once I have had a chance to read the opinion.

UPDATE (3:16 PM): The Court’s ruling depended on a detailed question about how to construe certain language in the DMCA. The DMCA created a special protocol whereby copyright owners could compel ISPs, via special subpoenas, to reveal the identity of ISP customers. The question was whether that special protocol applied to the facts of this case; the parties agreed that if it did apply then Verizon had to turn over the customer’s identity.

The Court ruled that the DMCA language did apply to these facts, so Verizon had to comply with the RIAA’s subpoena. The Court noted that Verizon had not raised any Constitutional issues, so the only issue before the Court was how to interpret the DMCA. The Court did say in passing, quoting the Supreme Court’s Eldred opinion, that it would be skeptical of any Constitutional challenges to the special subpoena protocol.

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