sheenyglass 's Techdirt Comments

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  • On the post: Do You Have Property Rights Over Your DNA?

    sheenyglass ( profile ), 27 Jul, 2011 @ 11:27am

    Property rights in tissue - unforeseen costs

    This reminds me of the scenario in Moore v Regents of the University of California (http://en.wikipedia.org/wiki/Moore_v._Regents_of_the_University_of_California) where cancer cells were removed as part of treatment and then turned into a profitable, patented cell line, without the consent of Moore (with all sorts of fund chicanery as well). The court found that people could not have property rights in their own tissues for a variety of reasons, both practical and moral. Therefore Moore was not entitled to any money made through the commercializati of his cancer.

    One of the practical concerns cited by the court was chilling of medical research, by creating fear of unwittingly using "stolen" tissue. Which is interesting, because this argument applies equally well to the patent in the developed cell line (and patents in general) - fear of patent litigation stifling innovation and all that.

  • On the post: Idea/Expression Dichotomy Is Dead; Judge Allows Photographer's Lawsuit Against Rihanna To Move Forward

    sheenyglass ( profile ), 27 Jul, 2011 @ 08:15am

    A motion to dismiss is not a motion for summary judgment.

    1) The original story is unclear, but after looking at the decision itself it bears mentioning that this was a motion to dismiss, meaning all of the plaintiff's allegations are treated as true - there is really no determination about whether they are actually true. The motion to dismiss is really more about determining whether the plaintiffs allegations make out a valid claim of copyright infringement. Summary judgment is where you see start to see actual factual inquiry. (as a sidenote, I really wish reporting on court decisions would do a better job at addressing procedural posture - its kind of important for the significance of these rulings).

    2) In the decision, the fair use argument is characterized as follows:

    Defendants argue that, if they used LaChapelle?s protected material, it was to "critic[ize] how
    Rihanna is treated by the press and comment on her relationship with the media."


    If this is sum and substance of Rihanna's fair use argument, the judge is dead on that it is unavailing.

  • On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright

    sheenyglass ( profile ), 20 Jul, 2011 @ 02:48pm

    Re: Re: Re: Re: Re: Hacking does not require a copyright factor

    Thanks. So value is determined by the information's status as bargained-for consideration rather than by a calculation of its market price.

  • On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright

    sheenyglass ( profile ), 20 Jul, 2011 @ 11:40am

    Re: Re: Re: Hacking does not require a copyright factor


    wire fraud is more tenuous and will depend on interpretations of the JSTOR terms of use license for the purpose of downloading the information in question,


    This seems interesting. Could you elaborate on the relationship between the JSTOR Terms of Use and wire fraud?

    Maybe I read the indictment wrong, but it looks three of the four counts require the government to prove that he acquired something of value. Count I and II are the fraud charges, so they require the acquisition of something of value. One element of Count III requires the information to be worth over $5,000.

    Can they prove that the information is something of value without copyright?

    Of course that still leaves Count IV, which requires them to prove that the damage exceeded $5,000. I'm assuming they would do that by valuing downtime for JSTOR and/or lack of access to JSTOR by MIT, so that seems more tenable. But that knocks his punishment down to 5 years, rather than the aggregate 35 years.

  • On the post: You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright

    sheenyglass ( profile ), 20 Jul, 2011 @ 10:24am

    Re: Hacking does not require a copyright factor

    Under 18 USC 1343 a requisite element of wire fraud is "obtaining money or property by means of false or fraudulent pretenses". Computer fraud, 18 USC 1030(a)(4) requires the person only to "obtain[] anything of value" which is somewhat more broad, but still requires there to be something of value.

    I really can't see the establishment of value without copyright. Possibly she could argue that the value of the service provided by JSTOR is sufficient. However, since he had access to JSTOR legally, that seems like a stretch. Of course they don't have to allege criminal infringement in order to use copyright to establish value, but they do have to prove value and it seems like they would have to prove copyright infringement to do so.

  • On the post: Court Refuses To Issue Injunction Stopping Secret Web Spycams From Running On Rental Laptops

    sheenyglass ( profile ), 19 Jul, 2011 @ 11:36am

    Re: Re: Compare to apple store

    I agree that the public/private location of the computer separates the two cases - those factors are what I was thinking of when I distinguished between hacking and privacy issues. I think (and I think we agree) that Aarons violated their customers' privacy in a pretty egregious manner, while the apple store customers suffered no comparable violation.

    My point is just that, regarding the hacking charge (where hacking is classified as an interception of communications), both situations are equally likely to be hacking.

  • On the post: Court Refuses To Issue Injunction Stopping Secret Web Spycams From Running On Rental Laptops

    sheenyglass ( profile ), 19 Jul, 2011 @ 10:41am

    Compare to apple store

    Separately, the judge suggested that the family has a weak case, because the CFAA computer hacking law they're relying on requires interception of electronic communications... and the court isn't sure that snapping a photo of you captures electronic communications


    Its interesting to compare this case to the incident with the Apple Store and performance artist taking photos of customers ( http://goo.gl/BQAqa ). obviously the privacy issues are very different, but considering the hacking alone issue, it seems like the relevant facts are similar - both involve remotely activating a webcam and using it to surreptitiously observe and photograph them. If remotely controlling a webcam in this fashion constitutes hacking in one of these incidents it should be considered hacking in both.

  • On the post: Legal Technicality Forces Houston To Turn Its Redlight Cameras Back On, Even Though It Wants Them Off

    sheenyglass ( profile ), 12 Jul, 2011 @ 07:29am

    Less a technicality...

    ...and more a inconsequentiality.

    It looks like the judge denied a request for an interlocutory appeal, which is an appeal of a ruling within a proceeding rather than an appeal of the final disposition at the end of the proceeding. Interlocutory appeals are generally permissive (meaning you have to ask for permission) while appeals of the final disposition are as of right.

    I'm assuming the vendor sued and alleged that 1) the referendum was improper and 2) that the city's breached its contract with the vendor. The judge issued a ruling on the first question, but the issue of contractual liability remains undecided. It looks like the city is claiming to have requested the interlocutory appeal to defend the voters' decision - possibly more symbolic than strategic.

    The appeal at the end of the proceeding would address all constituent parts, including the question of the referendum's legitimacy and the question of contractual liability. So really, this decision just means the appeals court will address this issue later.

  • On the post: Secret Service Descends on Artist For Mildly Creepy Public Photography

    sheenyglass ( profile ), 11 Jul, 2011 @ 08:29am

    No state law violation

    In NY State, the privacy crimes (NY Penal Law art. 250) include two basic crimes applicable here - eavesdropping (Sec 250.05, which explicitly requires the intercepting of communication (not still photos), and unlawful surveillance (Sec. 250.45, 250.50), which requires the surveillance to be of a sexual nature.

    So no state law violation, regardless of whether there was an expectation of privacy.

  • On the post: Charlie Sheen's Ex Threatens To Sue Anyone Who Mentions Her Name On Comedy Central

    sheenyglass ( profile ), 11 Jul, 2011 @ 07:26am

    Re:

    So true - if there is anything which is guaranteed to get comedians to make fun of you, its ordering them to not make fun of you.

  • On the post: Shouldn't Free Mean The Same Thing Whether Followed By 'Culture' Or 'Software'?

    sheenyglass ( profile ), 07 Jul, 2011 @ 11:20am

    Re: Re: Re: Agree, but addition

    Its kind of hilarious that you trying to protect the "actual creative people" from "people like [award winning filmmakers]"

  • On the post: Could Apple's MusicMatch Be A Tool To Identify Infringers?

    sheenyglass ( profile ), 28 Jun, 2011 @ 08:44am

    Re: You can't prove the act with Apple's data

    They could argue that if a file has been copied then all people with copies are infringers either through receiving copies or by making them for other people. So if I rip a CD and send copies to my friends, all of us have infringed the copyright. It really doesn't matter that I had a license, as my copying exceeded its scope.

  • On the post: Pusser's Rum Wins Ridiculous Trademark Battle, But Loses The War As Bartenders Protest And Boycott

    sheenyglass ( profile ), 22 Jun, 2011 @ 03:21pm

    Re: Re: Re:

    Uh oh. Kingston's favorite adult contemporary and talk radio destination, WKNY might be trouble...

  • On the post: Ridiculous Assertion: Righthaven Ruling Threatens Open Source

    sheenyglass ( profile ), 22 Jun, 2011 @ 12:48pm

    Re: Re:

    Also the Rightshaven decision is not really anything new. The standing requirements at issue are well-settled and uncontroversial. The only reason it took so long is because Rightshaven was so dishonest about its ownership interest in the copyrights at issue.

  • On the post: Ridiculous Assertion: Righthaven Ruling Threatens Open Source

    sheenyglass ( profile ), 22 Jun, 2011 @ 12:40pm

    Re: Re: Re: Re:

    Right - its analogous to how you are licensed to listen to a record you purchased and to make a copy by ripping mp3s, but you don't actually have standing to sue.

  • On the post: Ridiculous Assertion: Righthaven Ruling Threatens Open Source

    sheenyglass ( profile ), 22 Jun, 2011 @ 12:29pm

    Re: Re:

    Lawyer here. Try not to say lawyer three times in front of a mirror with the lights off, because we are really boring and hard to get rid of. Also I don't specialize in software licensing, so grain of salt etc.

    In answer to your question, maybe. Just because you are licensed to do x, y or z doesn't mean you have standing to sue. Especially becasue what we are talking about isn't an infringement of those rights, but an infringement of share-alike provisions or the source availability provisions. For this reason the FSF generally wants people to assign copyright to them so they can enforce the GPL. (http://www.gnu.org/licenses/why-assign.html)

  • On the post: Oops: Dropbox Left All User Accounts Wide Open For Four Hours This Weekend

    sheenyglass ( profile ), 21 Jun, 2011 @ 06:48am

    Re:

    I don't think dropbox is that big - my understanding is that they use Amazon S3 for their cloud capabilities, so the majority of what they do seems to be designing the interface and syncing features. If that's the case, just getting an S3 account puts you fairly close to dropbox functionality.

  • On the post: Giant Breweries Get Laws Passed In Wisconsin To Make Life Hard For Small Breweries [Updated]

    sheenyglass ( profile ), 20 Jun, 2011 @ 11:47pm

    Re:

    Umm after taking your advice, I poked around and discovered that the proposed law would require the craft brewer making less than 100,000 barrels per year to choose between a retail sales license OR a distribution license, rather than being able to have both. Meaning a brew-pub could not also sell its beer in the supermarket next door, a situation reminiscent of the one described in the TP article you disparaged.

    In other words, after looking into this issue as you recommended, I am saddened to discover that you are completely wrong. Perhaps you would have seen this had you taken off your rage-colored glasses before commenting.

  • On the post: Score One For The Trolls: Supreme Court Says Congress Intended It To Be Very Difficult To Invalidate Patents

    sheenyglass ( profile ), 09 Jun, 2011 @ 11:35am

    Not as bad as it looks (but still not good)

    This opinion is actually a bit less monolithic than it initially appears. The concurring opinion is pretty interesting in that it upholds the clear and convincing standard, but characterizes the scope of its application as fairly narrow.

    The concurrence draws the line between a question of fact and question of law such that the clear and convincing standard (which applies only to questions of fact) applies only to determining the narrow questions about whether alleged events occurred:

    "Thus a factfinder must use the ?clear and convincing? standard where there are disputes about, say, when a product was first sold or whether a prior art reference hadbeen published"

    The concurrence goes on to state that question of whether these facts amount to public use or can show a lack of novelty or that the patent is obvious is a question of law, and the clear and convincing standard doesn't apply.

  • On the post: Judge: Not Having The Best Security Not Illegal; Defrauded Company Can't Blame Bank

    sheenyglass ( profile ), 09 Jun, 2011 @ 08:21am

    Re: Established Case Law

    The problem is that the magistrate's decision (the judge has to approve the order before it has legal force) dismisses the negligence cause of action as being preempted by the UCC (Uniform Commercial Code), which requires only "commercially reasonable" efforts. (Statutes take priority over the common law).

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