You may recall that, as SOPA/PIPA were in their final death throes, MPAA boss Chris Dodd made a significant political faux pas in flat out warning politicians that if they refused to stay bought, the MPAA might not keep funding them: “Those who count … Continue reading →

In what may be NSA boss Keith Alexander’s final appearance before Congress before retiring in a few weeks, he appeared to (for the first time publicly) acknowledge that perhaps they don’t need to track everyone and could, instead, try just watching the phone records of suspected terrorists. He acts as if this is a brand new idea. Seriously:

One option that Alexander called feasible involves sharing what amounts to a watch list of suspected terrorists’ phone numbers with phone companies. The companies would search for links to other numbers, returning that data to the government.

He said if the government could work out a system in which it could share those “terrorist selectors” in a classified manner, “it sets the case in precedent” for sharing classified threat data with industry for cybersecurity purposes.

Of course, as others have pointed out, you don’t need “a precedent” for that — we have it already. It’s called a pen register and has been widely used by law enforcement for a decade, and there’s a whole law discussing how it can be used.

Alexander said that there were “pros and cons” to that particular approach, but that’s a pretty big shift from the man whose mantra has long been “collect it all.” Also, all this may not matter at all since Alexander is about to be out of the job — so perhaps it’s just in his final moments as NSA boss that he finally admits what plenty of people have been saying all along: there’s simply no justifiable explanation for the NSA collecting information on just about everyone.

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We recently highlighted the massive problem of the revolving door between the USTR’s office and various patent and copyright maximalist organizations. One example of this was Victoria Espinel, a former USTR official (and then IP Enforcement Coordinator… Continue reading →

The American Bar Association (ABA) has written a letter to the NSA addressing an issue that surfaced via a recent leak: namely, the agency signing off on the interception of privileged attorney-client discussions by Australian intelligence. To make matters worse, the intercepted communications included a US attorney who was representing the Indonesian government in a trade dispute.

While the original article didn’t make it clear whether the NSA had accessed this collection, the agency did in fact authorize the surveillance. Even if the NSA chose not to “listen in,” the underlying concern remains: are attorney-client communications considered off limits to the agency?

The laws governing this provide no specific exception for attorney-client communications, and the fact that this particular incident involved a foreign nation makes it that much easier for the NSA to justify its actions.

In its letter to the NSA, the ABA asks for assurance from the agency that it won’t willingly target these communications, even if they do involve foreign entities or persons.

The ABA understands the critical role that NSA plays in gathering intelligence information and protecting our national security, and we acknowledge that during the course of these activities, it is inevitable that certain communications between U.S. law firms and their clients may be collected or otherwise obtained by the agency. However, irrespective of the accuracy of the recent press reports, we would like to work with NSA on this issue and urge the agency not to actively seek confidential communications between U.S. law firms and their clients. In addition, if NSA obtains such confidential information inadvertently—or such information is obtained by foreign intelligence services or others and then shared with NSA—we would expect NSA to respect the privilege and take all appropriate steps to ensure that any such privileged information is not further disseminated to other agencies or any other third parties.

If the ABA ever receives these assurances (beyond a canned statement reiterating the NSA’s talking points), it likely won’t make any lawyer feel any more secure. The agency doesn’t have a great track record when it comes to accurately representing its activities. The NSA’s response may do nothing more than note these communications aren’t exempt from its surveillance efforts.

If so, this leaves the ABA in the same position it began in: reliant on a protection that may not actually exist.

The interception and sharing of attorney-client privileged communications by government agencies—or any third party—raises concerns, including chilling the full and frank discussion between lawyer and client that is essential for effective legal representation. Any government surveillance and interception of confidential communications between law firms and their clients threaten to seriously undermine and weaken the privilege, because as the U.S. Supreme Court noted in Upjohn Co. v. United States, 449 U.S. 383 (1981), “an uncertain privilege…is little better than no privilege at all.”

That’s where we are as a nation — “little better than no privilege at all.” The Fourth Amendment is actively skirted by the NSA and any number of investigative and law enforcement agencies on a daily basis, using a very expansive reading of the Third Party Doctrine to access an immeasurable amount of data, some of which is just as revealing as the communications they can’t grab.

The ABA is right to press the issue, considering the NSA only very minimally addressed this when the leak first hit. The NSA obviously cherishes the large amount of confidentiality it and its lawyers enjoy. It should at least have the decency to extend it to the rest of the legal profession.

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We just wrote about the 9th Circuit’s ridiculously problematic ruling claiming that an actress who appears in 5 seconds of the 13 minute Innocence of Muslims “trailer” has a copyright interest in her performance, allowing the court to order Google to r… Continue reading →

It’s hard to believe that it was only two years ago that Techdirt reported that Encyclopaedia Britannica had stopped publishing its printed version after a run of 244 years; it seems like a report from another time. The idea of printing 32 volumes that… Continue reading →

In 2007, I was offered $120,000 to buy this blog outright.

I was sorely tempted, because that’s a lot of money. I had to think about it for a week. Ultimately I decided that my blog was an integral part of who I was, and who I eventually might become…. Continue reading →

We’ve seen several examples of how Yelp and online reviews can impact a company’s behavior. Sometimes that impact takes the form of the company in question going nuclear on the reviewers and subsequently crying “hack.” Other times companies attempt to… Continue reading →

I suppose it’s because Rockstar Games’ opus, Grand Theft Auto 5, is equal parts sandbox game and Rorschach test that makes it such a likely target for people who incorrectly think that the game’s makers appropriated their likenesses. We already saw one such publicized story in which Lindsay Lohan was reportedly looking into suing Rockstar over the game’s cover art and a character so completely and insanely lascivious that one would wonder why someone like Lohan would want to actively attempt to associate herself with it. In any case, she was wrong on both charges. Even if she were right, the portrayal was clear parody (though, again, not of her specifically).

Well, meet Karen Gravano, wife of the man who brought down John Gotti, and instigator of a $40 million dollar lawsuit against Rockstar for GTA5‘s portayal of a minor character in a side mission, utilizing the relatively new and insane concept of publicity rights.

The ripped-off character is Antonia Bottino, said Gravano’s lawyer Thomas Farinella. The animated hottie is rescued by the game’s main character after getting buried alive off a dirt road. She then recounts how a murder charge was pinned on her father and how the family was forced to be “moving around safe houses in rat-hole hick towns where no one comes looking,” according to an online synopsis of GTA V. Her fictional dad, former Gambetti family underboss Sammy (Sonny) Bottino, eventually became a snitch, acquiring many enemies. He would not allow her to participate in a show called “Wise Bitches,” an obvious takedown of the VH1 reality show.

Here, again, we see the problem posed both by GTA5‘s depictions of pop culture and the Rorschach nature of the characters. Are there aspects of the character that have a vague and likely parodied similarity to Gravano? Sure, you could convince me of that. But, as with the Lohan “character”, the character has many other characteristics and story backgrounds that do not jive with Gravano’s. Such as what happens to her in the game. She never claims in her filing to have any further commonality with the character in the games’ actions. In fact, one of the similarities she cites, her mobster father not allowing her to appear on a reality show, would be directly refuted by the fact that Gravano appeared on a reality show until its fourth season. What this appears to be, again, is a parody character consisting of a composite of real life people featured in pop culture. You know, like every character in the Grand Theft Auto series is. That’s the whole point. To somehow look at a parody that features a vague nod in the direction of a public figure and think that should result in $40 million? That’s just crazy.

Furthermore, this all revolves around the theory of publicity rights, something we’ve covered before. This is a legal concept ill-defined at best, where the limitations on bringing a suit are only those of money-seeking attorneys. You can imagine what a problem that continues to be, particularly in light of the clash such a concept has with rights towards expression. Think of it this way: if a public figure can sue over the use of their image and/or story simply by claiming the use is commercial, an accusation that can be stretched unbelievably thinly, any expression dealing with that figure will resulting be sanitized. Documentaries on controversial figures would be out the window. Artistic interpretations of importnat people gone. No measure of intellectual property was designed with that kind of censorship in mind.

So, to conclude, we have a bad theory of law being practiced upon a target that is likely not guilty of it in the first place. That’s the kind of legal hijinks that you get when you allow people to believe they can own their own history. Congratulations, IP!

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