Month: January 2007

Music Without Shackles

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If you can’t beat ’em, join ’em.

News reports out of Midem, the music industry’s annual trade fair in Cannes, show the major labels moving in a new direction: downloaded music in unrestricted, non-digital-rights-management-controlled formats. The industry is facing slower growth in online music sales and at least some industry insiders have “a new appreciation” for music sold online in unrestricted formats, according to this New York Times article. EMI group may be leading the pack, announcing last week that it will stream music for free on Chinese Web site Baidu.com. RealNetworks CEO Rob Glaster predicted the shift to unrestricted formats “will happen between next year and fives years from now, but it is more likely to be in one to two years.”


Opting Out

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An article this weekend in The New York Times advised consumers how to opt-out of marketing solicitations. What’s most interesting is their relative ineffectiveness. The strongest opt-out program is the federal government’s Do No Call list for landlines and cellphones, but even it allows exceptions for political and non-profit solicitations. I’ve summarized the article’s recommendations for three of the most annoying types of solicitation, in decreasing order of effectiveness.

  • Phone Solicitations: Visit http://donotcall.gov/ or call (888) 382-1222 from the phone number you wish to add to the Do Not Call list. The listing is good for five years, so make a note (however you do such things) to renew the registration before it expires.
  • Junk Mail: Complete the form online at http://www.the-dma.org/consumers/offmailinglist.html or write the Direct Marketing Association with the address you wish to block at Mail Preference Service, P.O. Box 643, Carmel, NY 10512. This is not a sure-fire solution because not every retailer follows the DMA’s rules, but it is better than nothing.
  • EMail: Do not respond to unsolicited email, and do not select its “opt-out” provision. Doing so confirms to the sender that a live human being has read the email, making you a very hot prospect who will receive more spam. There are no good solutions to spam. A spam filter will help either block receipt of spam or segregate for easy deletion. Spam filters can block legitimate mail so it’s a good idea to scan message subject lines before deleting them. The article recommends not posting your email address in public forums but at best this might–might–make it harder for spammers to obtain your address. An address can still be spammed even if it is not posted anywhere online.

The article also has information about dealing with credit card solicitations. I’ve not tried them and they require providing personal information including social security numbers, which I’m reluctant to pass on. Read the article if you want more information.

Branford Bike Wildfire

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At coffee this morning a friend described a photo essay on the website of Montana-based bicycle retailer Branford Bike. He visited the site to price some parts and discovered the business had been sold and moved to Seattle because a wildfire destroyed the owner’s house and shop. The photo essay and text document last summer’s fire and its aftermath. Each summer when I read about wildfires out west it is hard to comprehend their toll. Branford Bike’s owner escaped physically unhurt, and lost all of his possessions. You can imagine his feelings at the fire’s inexorable advance, and at what he finds when he returns after the fire has passed. You can click through the photo essay with the links at the bottom of this page: http://www.branfordbike.com/cgi-bin/perlshop/perlshop.cgi?ACTION=push&thispage=shop/shop01.html&ORDER_ID=190736745

MySpace Sued for Sexual Assaults

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Is MySpace legally responsible for sexual assaults committed against teens who met their assailants on the site? Four lawsuits filed in Los Angeles Superior Court this week (see, e.g. here, here, and here ) seek damages from MySpace for negligence, recklessness, fraud, and negligent misrepresentation in connection with sexual assaults on the plaintiffs. The suits were brought on behalf of five 14- and 15-year old girls from four families in Texas, Pennsylvania, New York, and South Carolina MySpace was also sued last year in Texas in connection with a sexual assault on a 14-year old girl who met her 19-year old attacker online. The adults implicated in each of the four assaults have either been charged or convicted of the crimes. A lawyer from one of plaintiffs’ firms stated that “MySpace waited entirely too long to attempt to institute meaningful security measures that effectively increase the safety of their underage users.” MySpace has taken steps to limit adults from contacting younger users and to educate users about the risks of sharing information. This week MySpace announced a to-be released tool allowing parents to see some of their children’s online profile.

I understand the parents’ helplessness in the face of the damage inflicted upon their children. We try as parents to keep the world’s evil at bay yet sometimes it arrives, and we rage against it and against our impotence to stop it. Bystanders too-simply blame the victim (“dont (sic) they have an (sic) ‘Complete Moron’ clause somewhere that says idiots cant (sic) sue for being terminally stupid”*) and the parents “a Double WTF to the parents for not at least having the meeting supervised.*” I know nothing about the particulars of these cases and whether the parents should be faulted for failing to supervise their children. I know that as a teenager I sometimes did the precise opposite of what I should do, just because it was the opposite of what I should do. As a parent I know that sometimes you try your human best and still fail.

I do not, however, agree with these lawsuits, based as they are on a profound misconception of the nature of MySpace and similar sites. MySpace provides a cyber place for people to meet and interact. It should have no more legal responsibility than the owner of a village-square bulletin board for a relationship established via Post-It messages, or than the owner of a bar for a relationship formed by two people at last call, or than the owner of the local mall for a relationship between a 14-year girl and a 20-year old man who meet while hanging around outside The Gap. MySpace is not the junior high gymnasium on 8th-grade dance night. It should not be MySpace’s responsibility to tell parents who their children hang with or what their children do. Cyber spaces allow one to put on a false face. This has not been news since The New Yorker ran the “On the Internet, nobody knows you’re a dog” cartoon in July 1993.

When bad things happen, we want someone to pay–as compensation, as punishment, as vindication, as justice. The law should not always provide a remedy. Coincidentally, yesterday we discussed McCollum v CBS, 202 Cal. App. 3d 989, 249 Cal. Rptr. 187 (1988), a negligence suit brought unsuccessfully by parents of a teenage boy who committed suicide after listening repeatedly to Ozzy Osbourne’s music, including a song titled “Suicide Solution.” The court ruled that John McCollum’s suicide was not a reasonably foreseeable consequence of Osbourne’s artistry. (It also ruled that the First Amendment barred plaintiff’s recovery.) The need to find answers and fix blame can, I imagine, be overwhelming when one’s children are harmed, especially if there are powerful external influences (rock music, MySpace) at work. We blame what we don’t understand. It’s more comforting than blaming the face in the mirror, or considering the possibility that there may be no one to blame.

*Quotations from Slashdot <

NETeller Exits U.S. Market

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Writing here yesterday of the arrest of the founders of Internet-gambling-payment processing company NETeller, I asked what would happen to the company. NETeller announced that it is dropping its U.S. Internet gambling services, “wiping out over 65 percent of its business” according to this Reuters story. NETeller’s explosive growth slowed after the U.S. passed the Unlawful Internet Gambling Enforcement Act (UIGEA) last October 13. NETeller issued a statement saying its “withdrawal from the U.S. market . . . is the culmination of months of careful planning” spurred by concerns about the regulatory environment in the U.S. See here and here for posts about the UIGEA and its effect on the market.
My understanding is that NETeller maintains accounts for Internet gamblers. Has NETeller started returning that money to its owners? Does anyone know?

Neteller Founders Arrested

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The United States this week arrested John Lefebvre and Stephen Lawrence, the founders of Neteller PLC, for conspiring to transfer funds to promote illegal gambling in violation of 18 U.S.C. s 1956(a)(2)(A). (See SiliconValley.com article and the criminal complaint.) Founded in 1999 and based in the Isle of Man, Neteller is a payment intermediary, a “virtual wallet,” establishing accounts for online gamblers and transferring money for wagering to Internet gambling sites. Referring to data in the prospectus for Neteller’s $70 million initial public offering in 2004 and Neteller’s 2005 annual report, the complaint alleges that Neteller derives more than 95% of its revenues from money transfers connected to gambling, that in 2004 Neteller processed $3.4 billion in transactions in 2004 and provided access to more than 80% of online gaming merchants worldwide, that in 2005 Neteller processed over $7.3 billion in financial transactions, had $172.1 million in revenues, and earned $91.5 million in net profit, and that in the first six months of 2006 Neteller processed $5.1 billion in financial transactions. Lefebvre and Lawrence, both Canadian citizens, were arrested in Malibu and the U.S. Virgin Islands, respectively. They could face up to 20 years in prison.

Their arrests may take Lefebvre and Lawrence out of the picture, but what will happen to Neteller?

What’s the Wikipedia Entry for “Quality?”

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Yesterday Law.com (subscription required) had an article titled The Patent Office: Getting Wiki With It about the Patent & Trademark Office’s decision last August to remove Wikipedia as an acceptable research source for prior art searches. The article notes that “the surprise was not that the Web site had been banished, but that examiners had been using it at all.” Since banishing Wikipedia the PTO has been criticized for leaving on its list of acceptable research sources other websites that also can be easily modified. What could the PTO have been thinking when it allowed examiners to use Wikipedia in the first place? I refrain from taking constant whacks at Wikipedia’s flaws because it’s too easy. One can’t rely on it for anything remotely important. It is probably quite good for researching Dungeons and Dragons, but even there I wouldn’t cite it as my only source. Apparently not everyone has gotten the message.

For instance, last week I searched for articles on “Internet Crime.” Google returned Wikipedia on the first page of search results. I looked at the Wikipedia entry, wondering if it pointed in directions I had not considered. It certainly did. I learned:

Internet crime is crime committed on the Internet, using the Internet and by means of the Internet.

Hey man did you know that you smell . “Knock knock” whos there? “Me” me who? “Meow”.. Computer crime is a general term that embraces such crimes as phishing, credit card frauds, bank robbery, illegal downloading, Industrial espionage, child porn, kidnapping children via chat rooms, scams, cyberterrorism, creation and/or distribution of viruses, spam and so on. All such crimes are computer related and facilitated crimes.

Why keep reading after this gibberish? For the same reason our eyes are drawn to accidents on the highway. The entry continued:

With the evolution of the Internet, along came another revolution of crime where the perpetrators commit acts of crime and wrongdoing on the World Wide Web. Internet crime takes many faces and is committed in diverse fashions. The number of users and their diversity in their makeup has exposed the Internet to everyone. Some criminals in the Internet have grown up understanding this superhighway of information, unlike the older generation of users. This is why Internet crime has now become a growing problem in the United States. Some crimes committed on the Internet have been exposed to the world and some remain a mystery up until they are perpetrated against someone or some company.

After listing new Internet crimes such as phishing and “virus immistion” the entry’s language soared briefly to biblical heights and returned to the prosaic:

Then the light rained down on the innocent and the sinners were smeared across this paghe of hell alsothe expansion of already existing crimes on the Internet starts with credit card fraud. The crimes go on from there to cyber terrorism, illegal pornography, and copyright infringements. All of these crimes have mostly been in the spotlight because of the socially repulsive crimes committed by child molesters and the events of companies like Napster which were involved in copyright infringement law suits a couple of years ago.

One hopes that even a dull middle-school student would immediately see this to be illiterate slap-dash crap.

A die-hard Wikipedian would say “instead of taking cheap shots, why don’t you put your money where your mouth is and rewrite the article to your standards?” I’d take the time to put this article out of its misery, far from innocent web browsers (particularly among the “older generation of users”) if were confident it wouldn’t come back to life. I’m not, so I won’t. Thanks, but I’ll take my research with a super-sized order of actual substantive knowledge.

Wikipedia gets a free pass from too many people who should know better.

RIAA v Santangelo Default Judgment

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Last month the trial court dismissed the RIAA’s copyright infringement file-sharing lawsuit against Patti Santangelo without prejudice, choosing instead to sue her daughter Michelle and son Robert. (See Lawsuits on the Family Plan) Santangelo became a file-sharing cause celebre after the RIAA sued her in 2005 when she claimed both innocence and ignorance, although her righteous indignation lost some of its power when Michelle allegedly admitted downloading over 1,000 songs on the family computer and Robert’s friend allegedly disclosed Robert’s file-sharing to the RIAA. Michelle chose not to respond to the RIAA’s suit. SiliconValley.com and others reported a few days ago that the trial court entered a default judgment against her and ordered Michelle to pay damages of $30,750, or $750 for each of the 41 songs the RIAA accused her of downloading. Various articles describe Jordan Glass as Michelle Santangelo’s counsel. If she is represented it is unclear why she offered no defense or whether she plans to move to set aside the default judgment and fight the RIAA’s suit on its merits.

Judge’s Error

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Two days ago in a post about judicial pay I said that most judges are good at what they do. Sometimes, though, their judgment is suspect. As reported in the New York Law Journal on January 8 (subscription required), in October 2004 New York trial court Judge Joel M. Goldberg was presiding over a defendant Damian Nicholson’s jury trial on robbery charges. At 3:30 PM on Friday on the first day of jury deliberations the judge faced one juror’s need to leave for a 4:00 PM appointment and another juror’s conflict that would require postponing deliberations until the following Tuesday. Judge Goldberg gave Nicholson a choice: “waive his right to a jury trial[, . . . ] accept the judge’s verdict of guilty on” the lesser included offense of third-degree robbery, and spend a year in prison. If the jury found him guilty Nicholson would face a minimum of five years in prison. The jury told the judge it had reached a verdict. The judge allowed Nicholson to confer with his lawyer and mother for “a few moments” and said “I hate to say this is a game show . . . So five minutes to four I don’t know what to say but the options are yours.” While Nicholson waived his options the judge told him he could not keep the jury waiting much longer, that if Nicholson wanted to waive the jury trial and accept the judge’s verdict “you will have to do it now.” Nicholson waived the jury trial and took the year sentence, serving eleven months. His lawyer learned later that the jury would have acquitted Nicholson. On appeal the court reversed the judgment because the deal Goldberg offered Nicholson was “‘improper” and “coercive.'” The appellate court’s opinion said “[w]hile the trial court was authorized to promise to impose a minimum sentence if the defendant opted for a nonjury trial, no authority existed for the trial court to prematurely determine guilt and the sentence as a condition of the waiver.”

I don’t conclude that Justice Goldberg is a bad judge. I don’t see any meanness in his motivation. He was too focused on the clock and the imposition on the jurors if he extended deliberations to the following week. His seat-of-the-pants solution did, in essence, convert Nicholson’s dilemma into a game-show choice. Fine for The Price is Right, but a denial of due process in a criminal trial. He made a very human error of judgment the type that we all make without consequence because our actions are not subject to appellate review.