Large companies experiment on their users all the time in large and small ways through “product testing.” Changing the format of a homepage or the layout of an app to see if it facilitates easier use or better engagement could constitute an “experiment.” However, what happens when the experiment is only tangentially related to the product? And how does this affect our understanding of privacy and informed consent?
Following on last week’s post, another dark cloud continues to loom over the Internet: malware. Malware is somewhat two-faced. On one side, hackers use malware to gain access to personal information. On the other side, the government uses malware to track down criminals and terrorists. But what happens when the line separating the two starts to blur? This post will explore the “good” and “bad” sides of deceptive delivery of malware.
We’re back for Season 2 of our ongoing weekly recap of current tech policy news. As always, the TLPC Director (that’s me—Blake Reid) takes on the first blog post of the semester before the TLPC’s student attorneys take over for the duration. As summer comes to a close in Boulder, this post explores some of the dark clouds have circled over the Internet in recent weeks.
Last week, the TLPC testified at several hearings (PDF) in favor of ourproposed exemptions to Section 1201 of the Digital Millennium Copyright Act. We’ve linked below to various pictures and coverage of the hearing. Congratulations to the many TLPC students who took part!
Politico Pro coverage of security research hearing (1, 2)
On Tuesday, May 12, 2015, three TLPC student attorneys submitted a White Paper to the U.S. Patent and Trademark Office (PTO) detailing a proposal to discourage frivolous claims in trademark opposition proceedings before the Trademark Trial and Appeal Board (TTAB). Current PTO rules can allow for entities known as “trademark bullies” to unfairly target new trademark applicants with aggressive litigation tactics that can cost, on average, around $80,000 to defend. For this project, the team partnered with our sister law clinics at American University and Suffolk University.
The team developed two proposals: a Second Look Review procedure and fee-shifting authority housed within the TTAB.
The Second Look Review procedure would allow trademark holders and other interested parties to request that the examining attorney who approved the trademark application take a “second look” at the application in light of evidence presented by the interested parties. If unsatisfied with the examining attorney’s determination, either party can then appeal directly to the TTAB.
The team’s second proposal is for Congress to implement a statutory fee-shifting mechanism for frivolous opposition suits before the TTAB. Current patent regulations allow for similar sanctions for parties who file frivolous patent oppositions in litigation, so the team proposes an analogous mechanism for trademark regulations. Because the PTO does not currently have the authority under the Lanham Act to incorporate fee-shifting procedures into TTAB proceedings, the team included an argument that the PTO or other parties might make to Congress to obtain an explicit grant of this authority.
The Second Look Review procedure, coupled with fee-shifting authority, could provide a balanced approach that eliminates incentives for companies or other entities to engage in frivolous and aggressive trademark opposition practices, while allowing incumbent trademark holders an easier avenue to defend potential threats to their trademarks. Furthermore, these proposals would help ensure that only legitimate oppositions from committed parties are admitted to the TTAB docket, which could increase overall efficiency within the PTO.
The student attorneys for this project were Austin Gaddis, Paul Garboczi, and Conor Stewartson.
The full text of the White Paper can be found here:
This semester, TLPC student attorney Stephanie Vu and student technologist Stefan Tschimben continued their work from the previous semester on a petition for rulemaking at the FCC under Silicon Flatirons Fellow Pierre de Vries’ guidance and mentorship. During the fall semester, the students, along with student attorney Chris Laughlin, researched how the FCC currently resolved spectrum interference disputes and drafted a petition for rulemaking to improve the process by suggesting that the FCC allow parties to bring their cases directly to an Administrative Law Judge for adjudication. This semester, the students sought feedback from attorneys, technologists, and policymakers, which was addressed and incorporated into the petition, filed today at the Commission.
This semester, TLPC student attorneys Victoria Naifeh, Allison Daley, and Elizabeth Chance and student technologist Jeff Ward-Bailey worked with the Colorado Public Utilities Commission’s 911 task force to research the legal landscape surrounding 911 accessibility for the deaf, deaf-blind, hard of hearing, and speech disabled communities in Colorado. The final project, a white paper summarizing the research, is now available here and on the the Social Sciences Research Network:
As we discussed in our previous blog post on the subject, this project seeks an exemption to Section 1201 of the Digital Millennium Copyright Act’s anti-circumvention provisions for good-faith security research. Our Reply Comment responds to a variety of issued raised in the second round of the proceeding by public commenters including manufacturers and trade groups in automobile, medical device, software, and related industries. In our Reply Comment, we focus on how objectors comments are textbook examples of the adverse effects of Section 1201 chilling good-faith security research, and push back against the suggestion that an exemption should include a mandatory disclosure standard.
Today, the TLPC, the American Foundation for the Blind, the American Council of the Blind, the Library Copyright Alliance, and the American Association of People with Disabilities filed reply comments at the U.S. Copyright Office requesting a renewal of the exemption to Section 1201 of the Digital Millennium Copyright Act aimed at making e-books more accessible to people who are blind, visually impaired, or print disabled and authorized entities. If renewed, the exemption would increase access to literary works and educational resources for people who are blind, visually impaired, or print disabled.
Take a look at the long-form comment attached here, and stay tuned for the Copyright Office’s decision later this year.
In the third episode of Tech Law & You, we present an interview with Mark Cooper, Director of Research at the Consumer Federation of America, Silicon Flatirons Fellow at the University of Colorado, and expert witness for over 250 public interest cases. Student Technologist Jeffery Ward-bailey sits down with Mark to talk about capitalism, the FCC, and the Silicon Flatirons conference on Digital Broadband Migration.