Slashdot Mirror

NewYorkCountryLawyer writes "Google has sought leave to submit an amicus curiae brief against Capitol Records' preliminary injunction motion in Capitol Records v. ReDigi. In their letter seeking pre-motion conference or permission to file (PDF) Google argued that '[t]he continued vitality of the cloud computing industry — which constituted an estimated 41 billion dollar global market in 2010 — depends in large part on a few key legal principles that the preliminary injunction motion implicates.' Among them, Google argued, is the fact that mp3 files either are not 'material objects' and therefore not subject to the distribution right articulated in 17 USC 106(3) for 'copies and phonorecords,' or they are material objects and therefore subject to the 'first sale' exception to the distribution right articulated in 17 USC 109, but they can't be — as Capitol Records contends — material objects under one and not the other."

NewYorkCountryLawyer writes "Google has sought leave to submit an amicus curiae brief against Capitol Records' preliminary injunction motion in Capitol Records v. ReDigi. In their letter seeking pre-motion conference or permission to file (PDF) Google argued that '[t]he continued vitality of the cloud computing industry — which constituted an estimated 41 billion dollar global market in 2010 — depends in large part on a few key legal principles that the preliminary injunction motion implicates.' Among them, Google argued, is the fact that mp3 files either are not 'material objects' and therefore not subject to the distribution right articulated in 17 USC 106(3) for 'copies and phonorecords,' or they are material objects and therefore subject to the 'first sale' exception to the distribution right articulated in 17 USC 109, but they can't be — as Capitol Records contends — material objects under one and not the other."

NewYorkCountryLawyer writes "ReDigi has fired back, opposing Capitol Records's motion for a preliminary injunction. In his opposition declaration, ReDigi's CTO Larry Rudolph explains in detail (PDF) how the technology employed by ReDigi's used digital music marketplace effects transfer of a music file without copying, but by modifying the record locator in an 'atomic transaction,' and how it verifies that only a single instance of a unique file can enter the ReDigi cloud system. ReDigi's opposition papers also point out plaintiff's own admissions that mp3 files are not 'material objects' or 'phonorecords' under the Copyright Act, and therefore not subject to the Copyright Act's distribution right, and defend ReDigi's used digital music marketplace and cloud storage system (PDF) on a number of grounds, including the First Sale exception to the distribution right applicable to a 'particular' copy, the Essential Step exception to the distribution right applicable to a copy essential to the running of a computer program, and Fair Use space shifting."

NewYorkCountryLawyer writes "ReDigi has fired back, opposing Capitol Records's motion for a preliminary injunction. In his opposition declaration, ReDigi's CTO Larry Rudolph explains in detail (PDF) how the technology employed by ReDigi's used digital music marketplace effects transfer of a music file without copying, but by modifying the record locator in an 'atomic transaction,' and how it verifies that only a single instance of a unique file can enter the ReDigi cloud system. ReDigi's opposition papers also point out plaintiff's own admissions that mp3 files are not 'material objects' or 'phonorecords' under the Copyright Act, and therefore not subject to the Copyright Act's distribution right, and defend ReDigi's used digital music marketplace and cloud storage system (PDF) on a number of grounds, including the First Sale exception to the distribution right applicable to a 'particular' copy, the Essential Step exception to the distribution right applicable to a copy essential to the running of a computer program, and Fair Use space shifting."

NewYorkCountryLawyer writes "ReDigi has fired back, opposing Capitol Records's motion for a preliminary injunction. In his opposition declaration, ReDigi's CTO Larry Rudolph explains in detail (PDF) how the technology employed by ReDigi's used digital music marketplace effects transfer of a music file without copying, but by modifying the record locator in an 'atomic transaction,' and how it verifies that only a single instance of a unique file can enter the ReDigi cloud system. ReDigi's opposition papers also point out plaintiff's own admissions that mp3 files are not 'material objects' or 'phonorecords' under the Copyright Act, and therefore not subject to the Copyright Act's distribution right, and defend ReDigi's used digital music marketplace and cloud storage system (PDF) on a number of grounds, including the First Sale exception to the distribution right applicable to a 'particular' copy, the Essential Step exception to the distribution right applicable to a copy essential to the running of a computer program, and Fair Use space shifting."

NewYorkCountryLawyer writes "RipoffReport.com contained an admittedly defamatory posting, by one of its users, about a person who operated a Florida corporation providing addiction treatment services. Although the site was asked by the poster herself to remove the post, it refused. A Florida appeals court has ruled that the site is absolutely immune from suit (pdf), and cannot even be directed to remove the offending post, since under the Communications Decency Act (47 USC 230) 'no cause of action may be brought' against a provider of an "interactive computer service" based upon information provided by a 3rd party."

First time accepted submitter LeDopore writes "Quantum computers might be coming. I'd estimate that there's a 10% chance RSA will be useless within 20 years. Whatever the odds, some of the data we send over ssh and ssl today should remain private for a century, and we simply can't guarantee secrecy anymore using the algorithms with which we have become complacent. Are there any alternatives to RSA and ECC that are trustworthy and properly implemented? Why is everyone still happy with SSH and RSA with the specter of a quantum menace lurking just around the corner?"

florescent_beige writes "Researchers from Cornell and UBC report that analysis of speech patterns using Wmatrix, along with something called the Dictionary of Affect in Language (see a demo here), shows that psychopaths speak differently from other people, at least statistically (abstract). Although they say that these differences are 'presumably beyond conscious control,' the authors do not say if the method has any predictive use. Regardless, the popular press has already gone headline-nonlinear about it."

Khyber writes "Three data and security breach notification bills have been approved by the Senate Judiciary Committee, one of which includes an amendment that adds clarity with regards to the Computer Fraud and Abuse Act. These three bills would require businesses to develop data privacy and security plans, and it would set a federal standard for notifying individuals of breaches of very sensitive personally identifiable information, such as credit card information or medical records. This clarification is welcomed, making the statute more focused towards hackers and identity thieves, instead of consumers that run afoul of ToS or AUPs of websites and service providers."

UltraOne writes "With the US Senate voting to table the Boehner debt limit bill, the US is only a few days away from running out of cash to pay for all its obligations. Slate is reporting on a fascinating legal hack that could come in handy, described by blogger 'beowulf' back in January 2011. Seigniorage is the extra value added when a government mints a coin with a face value greater than the value of the precious metal contained in the coin. The statute governing the minting of coins contains a section (31 USC 5112(k) ) that authorizes the Secretary of the Treasury to mint and issue platinum coins in any denomination or quantity. To keep the government from running out of money, Timothy Geithner could order a $5 trillion platinum coin struck and deposited at the Federal Reserve. The money could then be used to fund Federal Government operations (blog post contains legal details)."

Eric Smalley writes "If you're like most people, you give yourself high ratings when it comes to figuring out when someone's trying to con you. Problem is, most people aren't actually good at it — at least as far as detecting fake positive consumer reviews. Fortunately, technology is poised to make up for this all-too-human failing. Cornell University researchers have developed software that they say can detect fake reviews (PDF)."

schwit1 writes "The Supreme Court on Monday rejected a global warming lawsuit against five big power companies, its most important environmental ruling since 2007 and a victory for the utilities and the Obama administration. The justices unanimously overturned a ruling by a US appeals court that the lawsuit now involving six states can proceed in an effort to force the coal-burning plants to cut emissions of gases that contribute to climate change. In a defeat for environmentalists, the Supreme Court agreed with the companies that regulating greenhouse gases should be left to the Environmental Protection Agency under the clean air laws. The ruling stemmed from a 2004 lawsuit claiming the five electric utilities have created a public nuisance by contributing to climate change. The lawsuit wanted a federal judge to order them to cut their carbon dioxide emissions."

schwit1 writes with news, as reported by Bloomberg, which will likely have bearing on (like it or not) regulation of peering among Internet carriers: "Established local telephone companies including AT&T Inc. must share disputed parts of their networks with competitors at cost, the US Supreme Court ruled. The unanimous ruling backs the position taken by the Federal Communications Commission in a fight stemming from the 1996 law that injected competition into the local telephone business. The law requires so-called incumbent local carriers, whose ranks also include Verizon Communications Inc. and CenturyLink Inc., to share their facilities with rivals."

Zothecula writes "The quest to build a working 'invisibility cloak' generally focuses on the use of metamaterials – artificially engineered materials with a negative refractive index that have already been used to render microscopic objects invisible in specific wavelengths of light. Now, using naturally occurring crystals rather than metamaterials, two research teams working independently have demonstrated technology that can cloak larger objects in the broad range of wavelengths visible to the human eye. PDFs of the two similarly named research papers are available through arXiv.org."

Ponca City writes "Until now, computer security has been reactive. 'Our defenses improve only after they have been successfully penetrated,' says security expert Fred Schneider. But now Dr. Dobb's reports that researchers at Cornell are developing a programming platform called 'Fabric,' an extension to the Java language that builds security into a program as it is written. Fabric is designed to create secure systems for distributed computing, where many interconnected nodes — not all of them necessarily trustworthy — are involved, as in systems that move money around or maintain medical records. Everything in Fabric is an 'object' labeled with a set of policies on how and by whom data can be accessed and what operations can be performed on it. Even blocks of program code have built-in policies about when and where they can be run. The compiler enforces the security policies and will not allow the programmer to write insecure code (PDF). The initial release of Fabric is now available at the Cornell website."

Ponca City writes "Until now, computer security has been reactive. 'Our defenses improve only after they have been successfully penetrated,' says security expert Fred Schneider. But now Dr. Dobb's reports that researchers at Cornell are developing a programming platform called 'Fabric,' an extension to the Java language that builds security into a program as it is written. Fabric is designed to create secure systems for distributed computing, where many interconnected nodes — not all of them necessarily trustworthy — are involved, as in systems that move money around or maintain medical records. Everything in Fabric is an 'object' labeled with a set of policies on how and by whom data can be accessed and what operations can be performed on it. Even blocks of program code have built-in policies about when and where they can be run. The compiler enforces the security policies and will not allow the programmer to write insecure code (PDF). The initial release of Fabric is now available at the Cornell website."

and so forth writes "Cornell lost a laptop last year with SSNs. Now, they've mandated scanning every computer at the University for the following items: social security numbers; credit card numbers; driver's license numbers; bank account numbers; and protected health information, as defined by HIPAA. The main tools are Identityfinder (commercial software for Windows and Mac), spider (Cornell software for Windows from 2008) and Find_SSN (python script from Virginia Tech). The effort raises both technical questions (false positives, anyone?) and practical issues (should I trust closed source software to do this?). Have other Universities succeeded at removing confidential data? Success, here, should probably be gauged in terms of diminished legal liability after the attempted clean up has been completed." Note: this program affects the computers of university employees and offices, rather than students' personal machines.

Archness1 writes "Over the weekend we discussed news that blog host Blogetery.com had been shut down at the request of the US government. Now, it appears the site was shut down because some of the blogs it was hosting contained information on al-Qaeda hit lists and bomb making. According to the article, Burst.net shut down Blogetery of its own accord after the FBI made a request to the host for information on the people who made the posts. '[Burst.net CTO Joe Marr] said the FBI contacted Burst.net and sent a Voluntary Emergency Disclosure of Information request. The letter said terrorist material, which presented a threat to American lives, was found on a server hosted by Burst.net and asked for specific information about the people involved. In the FBI's letter, the agency included a clause that says Web hosts and Internet service providers may voluntarily elect to shut down the sites of customers involved in these kinds of situations.'"

ChippedTeapot writes "Researchers at Cornell University have devised an algorithm for synthesizing sounds associated with brittle fracture simulations. Computers can now automatically generate synchronized sound, motion, and graphics for physically based fracture events, such as in future interactive virtual environments. The results will be presented at ACM SIGGRAPH 2010 in Los Angeles July 25-29. Check out the smashing results on YouTube."

ChippedTeapot writes "Researchers at Cornell University have devised an algorithm for synthesizing sounds associated with brittle fracture simulations. Computers can now automatically generate synchronized sound, motion, and graphics for physically based fracture events, such as in future interactive virtual environments. The results will be presented at ACM SIGGRAPH 2010 in Los Angeles July 25-29. Check out the smashing results on YouTube."

Hugh Pickens writes "Ben Sheffner writes that both sides in Don Henley's lawsuit against California US Senate candidate Chuck DeVore (R) over campaign 'parody' videos that used Henley's tunes set to lyrics mocking Sen. Barbara Boxer (D) have now filed cross-motions for summary judgment, teeing up a case that will likely clarify the rules for political uses of third-party material. The motions focus largely on one issue: whether the videos, which use the compositions 'The Boys of Summer' and 'All She Wants to do is Dance,' are 'parodies,' and thus likely fair uses, or, rather, unprivileged 'satires.' The Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), said that a parody comments on the work itself; a satire uses the work to comment on something else, so for Henley, this is a simple case: DeVore's videos do not comment on Henley's songs but use Henley's songs to mock Boxer. DeVore argues that his videos do indeed target Henley, who has long been identified with liberal and Democratic causes, and asserts that the campaign chose to use Henley's songs for precisely that reason. 'DeVore's videos target Henley only in the loosest sense,' writes Sheffner, 'and his brief's arguments ... sound dangerously close to the post hoc rationalizations dismissed as "pure shtick" and "completely unconvincing" by the Ninth Circuit in Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394 (1997).' The case also bears directly on the recent removal of the 'Downfall' clips from YouTube where many journalists have almost automatically labeled the removed videos 'parodies' while the vast majority aren't, says Sheffner."

eldavojohn writes "You may recall the TSA demonstrating how tech-savvy it is by releasing a document with redactions intact. Now three Republican lawmakers are asking what's being done to prosecute those hosting the document (e.g. Cryptome and Wikileaks). In a letter to the DHS (PDF), Charles Dent (R-PA), Gus Bilirakis (R-FL), and Peter T. King (R-NY) asked, 'How has [sic] the Department of Homeland Security and the Transportation Security Administration addressed the repeated reposting of this security manual to other websites, and what legal action, if any, can be taken to compel its removal?' And they asked if the DHS is 'considering issuing new regulations pursuant to its authority in Section 114 of Title 49, United States Code, and are criminal penalties necessary or desirable to ensure such information is not reposted in the future?' King is the representative who announcing a probe into Wikileaks after the half million 9/11 pager messages were released."

miller60 writes "Google never says how many servers are running in its data centers. But a recent presentation by a Google engineer shows that the company is preparing to manage as many as 10 million servers in the future. At this month's ACM conference on large-scale computing, Google's Jeff Dean said he's working on a storage and computation system called Spanner, which will automatically allocate resources across data centers, and be designed for a scale of 1 million to 10 million machines. One goal: to dynamically shift workloads to capture cheaper bandwidth and power. Dean's presentation (PDF) is online."

miller60 writes "Google never says how many servers are running in its data centers. But a recent presentation by a Google engineer shows that the company is preparing to manage as many as 10 million servers in the future. At this month's ACM conference on large-scale computing, Google's Jeff Dean said he's working on a storage and computation system called Spanner, which will automatically allocate resources across data centers, and be designed for a scale of 1 million to 10 million machines. One goal: to dynamically shift workloads to capture cheaper bandwidth and power. Dean's presentation (PDF) is online."

1sockchuck writes "We haven't yet seen signs of the Google Navy of seagoing data centers that use the ocean for power and cooling. But data center developers are planning to use sea water air conditioning in a new project on the island nation of Mauritius in the Indian Ocean. Cold water from deep-sea currents would be piped ashore to be used in a heat exchanger for the data center facility. A similar system has been used to replace the chillers at Cornell University, which draws cold water from Lake Cayuga. The Cornell system cost $50 million, but has slashed cooling-related energy usage by 86 percent."

Peace Corps Online writes "The NY Times reports that researchers at Cornell studying the news cycle by looking for repeated phrases and tracking some 90 million articles and blog posts which appeared from August through October 2008 on 1.6 million mainstream media sites and blogs, have discovered that for the most part, traditional news outlets lead and the blogs follow, typically by 2.5 hours. The researchers studied frequently repeated short phrases, the equivalent of 'genetic signatures' for ideas. The biggest text-snippet surge found in the study — 'lipstick on a pig' originated in Barack Obama's colorful put-down of the claim by Senator John McCain and Gov. Sarah Palin that they were the genuine voices for change in the campaign. The researchers' paper, 'Meme-tracking and the Dynamics of the News Cycle,' (PDF) shows that although most news flowed from the traditional media to the blogs, 3.5 percent of story lines originated in the blogs and later made their way to traditional media."

Frequent Slashdot contributor Bennett Haselton writes "A newspaper copies a rant from a girl's MySpace page and reprints it as a 'Letter to the Editor' without her permission. Could the girl sue for copyright violation? This question provoked much more disagreement among legal experts than I expected." Read on for the details.
In 2005, a college student published a rant on her hometown on her MySpace page, beginning with, "The older I get, the more I realize how much I despise Coalinga." Her former high school principal found the rant while browsing her MySpace page (what?), and forwarded it to the town newspaper, which published the "rant" without the girl's permission, signed with her full name, as a letter to the editor (what?). The resulting fallout included death threats against the family and the closure of the 20-year-old business owned by the girl's father. Four years later, a judge ruled that the girl could not sue for "public disclosure of private facts" because the MySpace post was not private. But what about a copyright claim?

Normally the "damages" for unauthorized copying of a MySpace post would be so close to zero, that a moral victory in court is all you could get. But if her father's business lost so much money that it had to close, could the family sue for those losses resulting from the copyright infringement?

It is perhaps indicative of the mathematician/programmer mindset, that after reading about a school principal downloading a rant form a former student's MySpace page and arranging with a friend to "out" her in the town newspaper, the first thing that popped into my head was: "copyright infringement." But copyright law has a nice binary, one-or-zero, they-did-it-or-they-didn't quality that resonates with left-brainers. As several lawyers said to me while I was asking them questions for this story, the girl would probably have a better claim for "intentional infliction of emotional distress" and for "false light publicity" — but those rights of action are more nebulous concepts in law, and the trial outcome would depend more on the judge's personal opinions and on the history of similar rulings in the state. Copyright law is, at least in theory, standardized in federal law and laid out in black and white, so that even non-lawyers have a chance of understanding it. But I still wanted to ask some lawyers for their opinions.

This started for me as an investigation of copyright law as it applied to these situations. (I personally know a few people whose content has been reused on other people's websites or e-mail lists with varying degrees of legality, and I'd like to be better informed about what to tell them.) But it ended up becoming a case study in how to interpret conflicting opinions from different lawyers.

There were some notions that I had completely wrong about copyright law, and the lawyers that I queried pointed those out unanimously. On the other hand, there are some questions where the legal community is divided on the correct answer, and you might pick one answer and a lawyer with the opposite point of view would tell you you were "wrong," when a different lawyer might tell you that you were "right." Whenever lawyers tell me something, and especially if they tell me that I should listen to them because they're a lawyer and I'm not, I always ask the same thing: If I were to ask this question of 10 different lawyers, would at least 8 out of them of them agree? If the answer is No, then — while each lawyer is still be entitled to their opinion, it is just an opinion, not a settled fact within the profession. In fact, I wouldn't even trust the results if I asked 10 lawyers who were all in the same room; my general impression is that when I ask lawyers a question who are in the room together, they agree more frequently than if I ask them a similar question separately, perhaps consciously or subconsciously out of a desire to make it look as if the "expert consensus" is stronger than it really is. The fairest test would be to ask 10 lawyers separately and compare their answers.

So, I posted a notice to Peter Shankman's Help A Reporter Out service, asking for legal experts to comment on the copyright issue. HARO is a nifty way to get your name in print once in a while if you're an expert on any subject; you can sign up for the mailing list as a "source," and then reporters send queries to HARO that are redistributed to the mailing list asking for experts on a particular subject. (The very first day after I signed up last September, I got featured as a "web filtering expert" in an article in an adult industry trade magazine, whereupon I'm sure my mother sent the link to all of her friends right away.) But I was interested in using it in a different way from most reporters. Usually, reporters posting a query are looking for multiple expert opinions that they can synthesize into a consensus answer for their story. I was posting my query to find out whether any consensus even existed.

The questions I put to the HARO list were: Could the girl bring a lawsuit against the paper for violating her copyright? Is it something she could even do in Small claims court to save time and money? And as for damages, I knew that in cases of copyright violations for works not registered with the Copyright Office, plaintiffs were usually limited to actual damages. But could she claim the losses to her family's business as "actual damages," since the harm was caused as a result of the copyright violation?

Before reading any further, you might want to consider how you would answer these questions. Then you can see whether your answers agree with those given by the experts.

Pencils down. First, the things that all lawyers agreed I got completely wrong:

• Virtually every lawyer who responded said that you could only bring copyright claims in federal court. This advice passed the 8-out-of-10 test, as well it might, since this rule is laid out in the U.S. Code.
• Second, to bring a copyright claim at all, you first have to register your work with the Copyright Office by mailing it to them with a $35 fee. (There was some inconsistency in the answers here, but the consensus seems to be: You own the copyright on something as soon as you create it, but you can't file a copyright lawsuit until after you've registered your work. However, once you've registered, you can then go back and sue for copyright violations that took place before the registration date. If you register more than 90 days after the date of first publication, you can only sue for actual damages — your monetary losses, or the infringer's ill-gotten gains — for violations that took place before you registered the work. But if you register within 90 days of first publication, you can sue for statutory damages and attorney's fees, even for violations that took place before you registered.)
• Third: Suppose the court did find that the girl's copyright was violated. Can the harm to her father's business be counted under actual damages? Well, first there is the issue of whether she can consider these as damages at all, since they were to her father's business, not to her. As I put it to Paul MacArthur, Professor of Journalism and Public Relations at Utica College: If X violates the rights of Y but the bulk of the harm is done to Z, can Y sue, even though they weren't the main victim? Professor MacArthur, said: "Generally, no. But, perhaps, because it impacts her family's income, she can claim a loss."
  
  But the real difference is that harm indirectly resulting from the copyright infringement is not legally the same as actual damages, and here's where the different experts agreed. Said one legal expert who asked not to be identified by name:

  "In the fact pattern for this case, you have to know that the damage to the family is considered 'consequential' or 'indirect' damages - not actual damages. In a copyright suit, actual damages are the financial losses incurred as a result of lost profit from your work."

  Joshua King, an attorney with Avvo.com, a site that provides attorney ratings and other services to help consumers navigate the legal profession, agreed: "Even if a court were to consider the father's lost business, those damages would be considered consequential damages." Three other lawyers who responded all said essentially the same thing.

So those were the points where the lawyers agreed. But what about a fair use defense? From years of reading Copyright FAQs, you probably know that the fair use doctrine allows third parties to use portions of a copyrighted work without the copyright owner's permission under some circumstances. As Mike Plumleigh, an intellectual property lawyer in California summarized it for me, the four factors that determine whether a use qualifies as fair use are:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Although, whenever I read a law or legal text earnestly claiming that such-and-such depends on this other list of factors, it seems ironic that the list is intended to "clarify" the meaning of the law, when the list items are often just as open to ambiguous interpretation as the original item they were intended to clarify. The acid test of whether a rule has been "clarified" is how much experts agree on how to interpret the rule in a given situation; if experts can't agree to interpret it, then it's no more "clear" than it was before.

That seemed to be the case in this instance, where I got a lot of conflicting answers from the attorneys who responded. Joshua King said: "The newspaper may well have a fair use defense even though they published the whole thing." Mike Plumleigh agreed with the likelihood of the "fair use" defense and gave a longer explanation (referring to his numbered list above):

"Not to go into detail of how a court might rule on the analysis, but here's my quick take:

• Under (1), the use could be found to be for criticism, comment and (by the paper) news reporting (and the cases also consider 1st amendment factors under this one)
• Under (2) and (4) the original work was not intended for commercial purposes, had little apparent market value, and is more a short statement of fact/opinion rather than having significant creative or other "authorship" elements.
• Under (3), all of the "work" seems to have been reproduced, but this factor would likely be outweighed by the others.

I haven't seen the published letter or the original journal post, so my analysis above might be somewhat different if what was copied was a longer essay about life in Coalinga or similar. Nonetheless, the market value/effect would still be an issue, and the criticism/commentary purposes could still tip in favor of fair use."

Venkat Balasubramani, a Seattle copyright attorney, cast a vote-with-caveats for the fair use defense as well:

Fair use is always tough to predict and fact-intensive. On the one hand, there's little commercial value in the letter. Also, the fact that she published the letter in MySpace may itself be newsworthy and the newspaper is entitled to publish at least portions of the letter. Overall, her copyright claims are weak, damages minimal, and the newspaper's fair use arguments fairly strong. (Caveat again the fair-use is fact-intensive.)

In the other corner, Phil Marcus, a negotiation and intellectual property lawyer in Baltimore, commented, "I do not think 'fair use' includes using a person's words to get them run out of town." Professor MacArthur said, "There is no way what the paper's use of the student's writings qualifies as fair use." I asked if the other factors wouldn't weigh in favor of the newspaper, since there was no apparently commercial market for the essay, but Professor MacArthur disagreed:

"The nature of the copyrighted work as a temporarily published work that the girl choose to pull off of her MySpace page. She has the right to remove her writings from her MySpace page and no one has the right to continue to distribute those writings in their entirety without her consent. So, number 2 is her favor (really, issue number two looks more at non-published vs. published, with non-published being afforded more protection).

In terms of number 4, the claim could be made the that there is an impact on the market. These are her personal writings. Perhaps, in the future, she wants to put them on her own web site and make a profit via Google's AdSense or via a pay for content web site. The newspaper, by publishing her writings, may have lessened her ability to charge for this piece/monetize it. I'm not saying she is going to do this, but this issue is something for a judge/jury to decide."

Stephen Roe, an attorney with Lathrop Clark in Virginia, was even-handed but leaning against fair use:

"Were she to sue for copyright infringement, I think the court would be faced with a difficult decision. Were I defending the newspaper and principal, I would certainly assert fair use, in that the purpose was for news reporting and comment and criticism. However, they would appear to have a problem, in that the girl's letter was not submitted BY HER as a letter to the editor, and thus was falsely attributed to her as a letter to the editor... A court may be willing to find that the principal and the paper were NOT within the fair use safe harbor, especially if she could establish ill intent. Were I hearing the case, I would be very sympathetic to her situation, especially given the relationship between the principal and the editor and the apparent mis-attribution."

So, three votes on either side. I myself would probably argue on the side of the fair use defense against a pure copyright violation, because the girl was not selling her work, and the principal was trying to convey the fact of the girl's dislike for Coalinga (which is inappropriate conduct for a high school principal, but not against the law).

I think the lesson here is that even though many Internet copyright controversies depend on what is protected under "fair use," that is much less clearly defined than one might hope. If someone blatantly lifts content from your home page and posts it on their own website for commercial gain, that's a copyright violation, but what if they only post excerpts for the purpose of "commenting" on it? What if you posted something snarky on your blog, and later took it down, but someone else archived a copy on their blog in order to show the world what a dick they thought you were? You may not know offhand whether these actions are protected under "fair use," but it would be nice to think that the answer exists, and that a lawyer could steer you towards it. No such luck in some situations.

Or, perhaps the more general lesson is that when seeking advice from lawyers, it's worth getting multiple opinions. Sometimes if a lawyer tells you, "I'm sure that I'm right about this, because I'm a lawyer," they really are right, as in several of the points above where they set me straight. But not always. And the way to find out is to ask four or five different lawyers and see what they say. I'm a member of a cheap legal insurance plan ($20/month) that entitles to me to call "in-network" lawyers for a few minutes of advice each on a given legal question. The provider probably thinks of this as a cheapo option for people who can't afford real legal consultations, but I think that 10 minutes of advice from 6 different lawyers, is enormously more valuable than one hour of advice from one lawyer, because then you can categorize their advice into things they agree on (which are likely to reflect "the law") and things they don't agree on (which are likely to be just their opinions).

If more legal debaters recognized this distinction, perhaps many bitter legal disputes outside the courtroom could be resolved by agreeing to disagree. Prior to a court ruling, "the law" is just defined as the consensus among legal experts on how to interpret a statute. So if experts are divided on a given question, then by definition there is no consensus and hence no "law," so what are they arguing about?

PL/SQL Guy writes "This afternoon, Cornell alerted over 45,000 current and former members of the University community that their confidential personal information — including name and social security number — had been leaked when a University-owned computer was stolen. A Cornell employee had access to this data for troubleshooting purposes, and the files storing the sensitive information were being stored on a computer that was not physically secure. The university is not disclosing details about the theft. This isn't the first breach for Cornell; last June, a computer at Cornell used for administrative purposes was hacked, and the University alerted 2,500 students and alumni that their personal information had potentially been stolen."

NewYorkCountryLawyer writes "The RIAA's first trial verdict having been tossed out last year, the RIAA is coming back for a second round starting Monday. This time the trial will be in Minneapolis, rather than Duluth, and the defendant will have a team of pro bono lawyers on her side. But perhaps the most important new development is that this time, the 'technical' evidence garnered by MediaSentry and 'explained' by the RIAA's expert witness Doug Jacobson, will not get the free pass it got the first time around. In the 2007 trial in Capitol Records v. Thomas, no objection was made by defendant's lawyer to the MediaSentry/Doug Jacobson 'evidence' upon which the RIAA relied, and the evidence was admitted without objection. This time there will be no free ride, as defendant's tech-savvy lawyers have already filed a list of objections to the RIAA's proposed exhibits. Most notably, they attack the 'technical' materials submitted by MediaSentry and Dr. Doug Jacobson under Rule 702 of the Federal Rules of Evidence, which requires evidence based on 'scientific, technical, or other specialized knowledge' to be based on sufficient facts or data, to be the product of reliable principles and methods, and to be the result of those principles and methods having been applied reliably to the facts of the case. If the evidence fails to meet those standards, it is inadmissible. This judge has already shown acute awareness of these principles in deciding which subjects the defendant's expert could and could not address. This should be interesting."

Acoustic Bubble writes "Researchers at Cornell University have developed the first algorithm for synthesizing familiar bubble-based fluid sounds automatically from 3D fluid simulations, e.g, for future virtual environments. The research (entitled 'Harmonic Fluids') will appear at ACM SIGGRAPH 2009 in New Orleans in August 2009. Check out some videos of falling, pouring, splashing and babbling water simulations (computed on a Linux cluster)."

Acoustic Bubble writes "Researchers at Cornell University have developed the first algorithm for synthesizing familiar bubble-based fluid sounds automatically from 3D fluid simulations, e.g, for future virtual environments. The research (entitled 'Harmonic Fluids') will appear at ACM SIGGRAPH 2009 in New Orleans in August 2009. Check out some videos of falling, pouring, splashing and babbling water simulations (computed on a Linux cluster)."

Matt writes "The new crop of Cornell University ECE 5760 projects are now online. Some really cool projects, as well as the previous two years' worth of projects." Since it's mid-December, many other schools, too, have either just let out or are about to; can you point to any other online collections of cool technical projects?

ocean_soul writes "Last week the free and open access repository for scientific (mainly physics but also math, computer sciences...) papers arXiv got past 500,000 different papers, not counting older versions of the same article. Especially for physicists, it is the number-one resource for the latest scientific results. Most researchers publish their papers on arXiv before they are published in a 'normal' journal. A famous example is Grisha Perelman, who published his award-winning paper exclusively on arXiv."

With the US and other G8 countries trying to outlaw The Pirate Bay and its ilk, an anonymous reader suggests that a solution may have emerged out of Cornell University. A new open-source project called Cubit is an Azureus plugin that provides decentralized approximate keyword search of torrents in the network.

An anonymous reader writes "Verizon and Comcast announced they will not 'block or throttle Internet traffic delivered via peer-to-peer networks' — essentially proclaiming that they are now P2P friendly. The decision came as a result of a test conducted with Verizon and Pando Networks, testing the benefits of a P2P/ISP partnership. During the test, the amount of P2P content delivered to Verizon subscribers from inside its network grew from 2 percent to 50 percent. This shows ISPs need to work with P2P companies to improve content delivery and manage traffic. Verizon also announced it will be looking at ways to use P2P technology to deploy new features on FiOS TV." Just the same, read on for one approach to mitigating likely tightening restrictions on P2P network use. Another anonymous reader writes "RIAA/MPAA have recently been targeting torrent aggregators like PirateBay, because the aggregators are the vulnerable components of the BitTorrent protocol. A new open-source project to thwart such attacks was announced on p2p-hackers and released yesterday:

Cubit, a new open-source p2p overlay, enables the Azureus BitTorrent client to look up torrents via approximate keyword search... Cubit completely decentralizes the lookup process through an efficient, light-weight peer-to-peer overlay that can perform approximate matches. It performs searches without relying on any centralized components, and therefore is immune to legal and technical attacks targeting torrent aggregators."

Narrative Fallacy writes "The Cornell Ranger robot has set an unofficial world distance record by walking nonstop for 45 laps — a little over 9 kilometers — around the Barton Hall running track in an event to to show off the machine's energy efficiency. Unlike other walking robots that use motors to control every movement, the Ranger emulates human walking, using gravity to help swing its legs forward. The Robot alternately swings two outside legs forward and then two inside ones and although the robot has no knees, it has feet that can be tipped up and down, so that the robot pushes off with its toes, then tilts its feet upward to land on the heels as it brings its legs forward. The Robot is steered by a hobby remote control which biases the steering to one side or another by lifting one of the four feet slightly. 'We've just moved into this world of electromechanical devices, and to make something this robust is a big achievement,' said Andy Ruina, Cornell professor of theoretical and applied mechanics. 'We've learned tons about what it takes to make walking work.'"

Narrative Fallacy writes "The Cornell Ranger robot has set an unofficial world distance record by walking nonstop for 45 laps — a little over 9 kilometers — around the Barton Hall running track in an event to to show off the machine's energy efficiency. Unlike other walking robots that use motors to control every movement, the Ranger emulates human walking, using gravity to help swing its legs forward. The Robot alternately swings two outside legs forward and then two inside ones and although the robot has no knees, it has feet that can be tipped up and down, so that the robot pushes off with its toes, then tilts its feet upward to land on the heels as it brings its legs forward. The Robot is steered by a hobby remote control which biases the steering to one side or another by lifting one of the four feet slightly. 'We've just moved into this world of electromechanical devices, and to make something this robust is a big achievement,' said Andy Ruina, Cornell professor of theoretical and applied mechanics. 'We've learned tons about what it takes to make walking work.'"

I Don't Believe in Imaginary Property sends us news from F-Secure of what they claim is the first rogue cleaning tool for the Mac. MacSweeper is a Mac version of Cleanator, hosted from a colo somewhere in the Ukraine. The article points out that the company's About page is lifted verbatim from Symantec's site. With the Mac's market share closing in on double digits, perhaps it's not surprising to see the platform targeted with crapware as PCs have been for years. The F-Secure author adds as a footnote that a journalist said to him something you don't hear every day: "I visited the macsweeper.com website. I know I probably shouldn't have but I used a Windows PC so I knew I wouldn't get infected."

I Don't Believe in Imaginary Property writes "Privacy International has released their report on privacy for 2007, which includes a color-coded world map that highlights the countries with the best privacy laws, the privacy-hostile countries being in black. While many of the overall rankings may come as no surprise, it does highlight some of the more obscure abuses. For example, Venezuela requires your fingerprints just to get a phone and South Korea requires a government registration number linked to your identity before you can post on message boards. Makes you wonder who is Number One?"

NewYorkCountryLawyer writes "The antitrust counterclaims imposed by Lime Wire against the RIAA record companies have been dismissed. In a 45-page decision (pdf), the Court relied principally upon the holding of the United States Supreme Court in Bell Atlantic v. Twombly that 'A party's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.' Ironically, the Twombly decision was the authority upon which the RIAA's copyright infringement complaint was dismissed in Interscope v. Rodriguez."

Roland Piquepaille writes "Probably not many of you have used a scanning tunneling microscope (STM), the essential tool of nanoscience. And you might think that it's as easy to take a picture of an atom with an STM as it is to take a shot with your digital camera. In fact, the imaging of individual atoms with an STM is quite slow. Now researchers at Cornell University have shown how to accelerate this process — by adding a radio transmitter, they are able to speed up atomic-level microscopy by a factor of at least 100. A typical STM currently has a sampling rate of about one KHz. This new radio-frequency STM can operate a thousand times faster."

NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."

NewYorkCountryLawyer writes "In a North Carolina case, Capitol v. Frye, the RIAA has accepted a $300 offer of judgment made by the defendant. This is the first known use, in the RIAA v. Consumer cases, of the formal offer of judgment procedure which provides that if the plaintiff doesn't accept the offer, and doesn't later get a judgment for a larger amount, the plaintiff is responsible for all of the court costs from that point on in the case. The accepted judgment in the Frye case (PDF) also contains an injunction — much more limited than the RIAA's typical 'settlement' injunction (PDF) — under which defendant agreed not to infringe plaintiffs' copyrights."

NewYorkCountryLawyer writes "In the ongoing case of UMG v. Lindor, Ms. Lindor has now moved to exclude the trial testimony of the RIAA's 'expert' witness, Dr. Doug Jacobson. Jacobson is the CTO and co-founder of Palisade Systems, Inc, and a teacher of internet security at Iowa State, but in his February 23rd deposition testimony she argues he failed to meet the reliability standards prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and Federal Rule of Evidence 702. The Groklaw and Slashdot communities participated in both the preparation of the deposition questions, and the vetting of the witness's responses."

NewYorkCountryLawyer writes "In the ongoing case of UMG v. Lindor, Ms. Lindor has now moved to exclude the trial testimony of the RIAA's 'expert' witness, Dr. Doug Jacobson. Jacobson is the CTO and co-founder of Palisade Systems, Inc, and a teacher of internet security at Iowa State, but in his February 23rd deposition testimony she argues he failed to meet the reliability standards prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and Federal Rule of Evidence 702. The Groklaw and Slashdot communities participated in both the preparation of the deposition questions, and the vetting of the witness's responses."

holy_calamity writes "Two Cornell researchers have designed an open source 3D printer that costs just $2,400. The self-assembly kit is part of what they call the Fab@Home project — they hope it will spark development of rapid prototyping for the consumer market in the same way the Altair 8800 did for personal computing in seventies." Here is a video showing a completed machine constructing a silicone bulb (16-MB WMV).
Update: 01/10 04:02 GMT by KD : The developers of this kit are at Cornell, not Carnegie Mellon University as the original post erroneously stated.

Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows... Do you HAVE what it TAKES?

Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.

Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.

In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.

If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.

How the law applies to non-profits

To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.

The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:

"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".

and part (b)(3)(A) states:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.

Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:

• (a) No person may: [...]

  • (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.

• (c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]

  • (4) Which is a tax-exempt nonprofit organization.

• (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:

  • (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
  • (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.

The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).

I think this clearly applies to non-profits as well, for two reasons:

• First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
• Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.

What to do if you get a pre-recorded call

You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:

• Does the organization making the call identify themselves at the beginning of the message?
• Did they give their return phone number anywhere in the message?

If the answer to either of those questions is no, it's suing time! Finding the right party to sue

Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.

Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:

• Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
• If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.

What you don't want is P.O. Box or a rented mailbox, since you won't be able to serve papers on them there. If you get an address like "1234 100th Ave #542", that's ambiguous -- it could be an actual office building located at "1234 100th Ave" where they're in suite 542, or it could be a rented mailbox company like Mail Boxes Etc. where they rent box number 542. Usually what I do is Google the first part of the address, "1234 100th Ave", along with the city name -- that way you'll find other entities that share addresses at the same location. If it's an actual office building, usually you'll find companies that rent the other office suites, and you can just call them up and ask them, "Hey, is that an actual office building at 1234 100th Ave?" On the other hand, if 1234 100th Ave is a mailbox rental company, usually you'll find pages where people list their addresses as "1234 100th Ave, box 234" or "1234 100th Ave, PMB 341" (short for Postal Mail Box).

If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.

But if you think you've got their real address, keep going!

Filing in Small Claims

At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?

So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.

However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.

They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.

Serving the papers

Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.

When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.

There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.

• Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:

  • can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
  • do they require a money order or can they take a plain old check?

• Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.

  If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.

  Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.

If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.

Negotiate with the defendant

Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.

One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.

But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.

Preparing for court

Make sure you bring all of the following:

• Your proof of service (see previous steps)
• A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
• A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
• A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
• A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.

In court

Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.

If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.

What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.

All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)

You're out of the fog? You won? Great, keep reading!

After you win

If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.

From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.

If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!

Bennett Haselton writes " Every year just before election day, I usually get a few phone calls from machines that dial numbers and play a pre-recorded message telling people to vote a certain way. I find these annoying even if I support the side I'm being asked to vote for, and most people don't realize that in most cases you can sue the organizations for making these calls, even if they are non-profits. So, you can make some money while advancing a good cause (i.e. stopping the bozos from doing it again). Here's how to file your case in Small Claims court, how to possibly negotiate an out-of-court settlement in advance, how to argue the case in court, and how to collect afterwards." His essay follows... Do you HAVE what it TAKES?

Before proceeding, decide if you think the stress is worth it. You're almost certainly stepping outside your comfort zone here.

Small Claims can be frustrating because the rules and procedures vary so much from one judge to the next, and judges differ wildly in how they interpret the laws. Their own biases come into play as well: they usually deal with cases involving people who have actually lost money or have been wronged in a serious way, and they may resent someone coming to court just to sue over a phone call.

In one particular case that provides a good example of what I'm talking about, I sued a spammer who came to court and claimed he never sent the mails and didn't even know how. When the judge stopped berating me long enough for me to continue, I then produced a tape recording of a conversation between me and the spammer, in which I had pretended to be an interested customer, and he offered to send 5 million e-mails for me for $500, and explained how they were routed through China to hide the origin. The judge got extremely flustered for a minute and then started to accuse me of "entrapment" (even though the recorded phone call took place after I had received the original spam), and she never commented on the fact that the defendant had just been caught lying under oath. I hadn't really expected him to go to jail for that, but I thought I would at least win the case; I didn't.

If you go to Small Claims court you have to be prepared to deal with that kind of Twilight Zone / Franz Kafka stuff. But the worst that can happen is that you'll lose.

How the law applies to non-profits

To clarify something important: In general, you can sue non-profits for $500 for calling your number and playing a pre-recorded message, unless in the recorded message they (a) identify themselves at the beginning of the message; and (b) give their return phone number (other than the number of the machine making the call) somewhere in the message. Most pre-recorded messages from non-profits do not meet these requirements, particularly the second one.

The federal law which states this is divided into two parts. The Telephone Consumer Protection Act, section (b)(1)(B), states:

"It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States... to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)".

and part (b)(3)(A) states:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.

Now, part (2)(B) says that the FCC is authorized to make federal rules and may grant certain exemptions to non-profits. The actual rules that the FCC came up with are in the Code of Federal Regulations as 47 CFR 64.1200. The complete text of 47 CFR 64.1200 is here, but the relevant sections that apply are:

• (a) No person may: [...]

  • (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by Sec. 64.1200(c) of this section.

• (c) The term telephone call in Sec. 64.1200(a)(2) of this section shall not include a call or message by, or on behalf of, a caller: [...]

  • (4) Which is a tax-exempt nonprofit organization.

• (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:

  • (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and
  • (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual.

The wording is important. Section (a) prohibits parties from making phone calls using a pre-recorded voice. Section (c) says that non-profits are exempt from the blanket ban in part (a). But then section (d) says that "All artificial or prerecorded telephone messages" must include a return phone number -- in other words, even if a party is allowed to make pre-recorded calls at all, they still have to conform to the restrictions in part (d).

I think this clearly applies to non-profits as well, for two reasons:

• First of all, part (c) does not say that non-profits are exempt from the entire law, it only says that they are exempt from the blanket ban in part (a) -- it does not say anywhere that they are exempt from part (d).
• Second, there's a simpler way of looking at it: if part (d) doesn't apply to non-profits and other parties that are exempt from the complete ban on pre-recorded calls, then who does it apply to? It doesn't apply to commercial companies, because under part (a), commercial companies can't make unsolicited pre-recorded calls at all, so it would make no sense to have a separate section requiring them to include a phone number.

What to do if you get a pre-recorded call

You probably don't need to keep a portable tape recorder by the phone just to record the call and prove that you received it. If you show up in court and claim that you received the pre-recorded phone call, it's unlikely that the non-profit's representatives, if they show up, will lie through their teeth and claim that it never happened. If they lose in court, all they lose is $500, but if they get caught lying under oath, they could in theory be convicted of a felony. (Although to tell the truth, sometimes the enforcement of perjury laws in Small Claims court is pretty lax.) The important things to note about the phone call are:

• Does the organization making the call identify themselves at the beginning of the message?
• Did they give their return phone number anywhere in the message?

If the answer to either of those questions is no, it's suing time! Finding the right party to sue

Even if the pre-recorded message gives the name of the organization, that may not be the actual party that used the machine to make the call. For example I got a call with a message identifying the caller as "Bob Thurston, Washington State Patrol Troopers Association president", but when I found his number and called him, he said the calls were actually being made by a group called Taxpayers for R-51. If I'm doing legwork to find out who made the call, sometimes I say that I'm interested in running my own campaign using a machine to dial numbers and play a message, and I want to find out how they did it. It's not illegal to lie.

Once you're reasonably sure you know the name of the organization that did it, you need to find the address where you can serve the papers on them. There are two broad approaches to this:

• Go to the Secretary of State's website for the state in which the organization is located, go to "Corporations" search, and search on the organization's name. If they are listed as a corporation in the state, there should be an address given for their "Registered Agent" as well. You're done; that's the address you need.
• If that doesn't work, unfortunately the remaining methods are a lot less precise. Your best recourse is to try and find the group using Google, and see if you can locate their street address.

What you don't want is P.O. Box or a rented mailbox, since you won't be able to serve papers on them there. If you get an address like "1234 100th Ave #542", that's ambiguous -- it could be an actual office building located at "1234 100th Ave" where they're in suite 542, or it could be a rented mailbox company like Mail Boxes Etc. where they rent box number 542. Usually what I do is Google the first part of the address, "1234 100th Ave", along with the city name -- that way you'll find other entities that share addresses at the same location. If it's an actual office building, usually you'll find companies that rent the other office suites, and you can just call them up and ask them, "Hey, is that an actual office building at 1234 100th Ave?" On the other hand, if 1234 100th Ave is a mailbox rental company, usually you'll find pages where people list their addresses as "1234 100th Ave, box 234" or "1234 100th Ave, PMB 341" (short for Postal Mail Box).

If you found the entity's address through their listing on the Secretary of State website, you're in luck, since companies are not supposed to list a P.O. Box or rented mailbox as their registered agent's address. But if you found the address through Google, it may not be a real street address. If it isn't, this is often where I hit a dead end, and with "only" $500 at stake I usually don't have the time to keep looking.

But if you think you've got their real address, keep going!

Filing in Small Claims

At this point you might be tempted to contact the organization first and negotiate a legal settlement as an alternative to suing them. What I've found however is that for cases this small, organizations usually won't take the threat of a lawsuit seriously until you actually serve them with legal papers, so I wouldn't bother negotiating until you've done that. (Also, if you try to negotiate in advance, this has the added disadvantage that once they know you're going to sue them, if they're a really underhanded bunch of people, they might try to make it harder for you to serve the papers on them.) If you think it's rude to just sue someone out of the blue -- well, shit, they called your house using a machine, didn't they?

So, in Washington at least, you can get a blank Notice of Small Claim form just by sending a self-address stamped envelope (should probably include about $1 worth of postage on the envelope since the forms can be heavy) to the local District Court and requesting the form. Then you can even file the case by filling out the form and mailing it back with a check for the Small Claims filing fee ($25 in Washington), plus another self-addressed stamped envelope. They'll mail you back the forms to be served. You never even have to go to the courthouse.

However, I'd recommend sitting in on part of a Small Claims calendar at the local courthouse to see how it usually works, and to make sure you wouldn't be nervous going through with it if the other side doesn't settle. Then while you're there, you can get the Small Claims form and file the case.

They will give you one copy of the Small Claims form for your records, and one copy that has to be served on the other party within a certain time frame (in Washington, 10 days before the court date). The clock is ticking, so now you have to serve the papers on the other party.

Serving the papers

Before having the Small Claims papers delivered to the defendant, you may want to attach a letter explaining that you're suing them for a phone call received on such-and-such a date. I tend to go that route, since I have nothing to hide anyway, and in any case the more you communicate, the more chance of getting a settlement. So, throw that in with the papers and then get ready to serve the papers on the defendant.

When you filled out the Small Claims form, it probably came with a pamphlet describing how to serve the papers on the other party. I'm describing the rules for Washington State; the rules in other states are similar.

There are two ways to serve the defendant: hiring a process server, or serving the defendant by mail.

• Hiring a process server. This is the preferred method if you don't mind spending about $40. (If you win, the cost of service of process is added to the amount of the judgment, so you'll get it back if the defendant pays the judgment.) Using the online yellow pages, just search in and around the city where the defendant lives, for (a) private process servers, and (b) the sheriff's department. I've called process servers and sheriffs in many different cities, and they charge amounts ranging from $10 to up to $150 for substantially the same service, and I've never figured out why. Sometimes the sheriff is the cheapest, and sometimes it's one of the private process servers. But whoever you use, make sure to find out what they require you to send them. They always require a letter of instruction tell them where to serve the papers on the defendant. In addition, be sure to ask them:

  • can they serve papers on behalf of a private individual, or will they only do it on behalf of law firms?
  • do they require a money order or can they take a plain old check?

• Serving the defendant by mail. Go to the post office and have the papers mailed to the defendant by certified mail with a return receipt. Here, you have to make a choice. IF you think the organization will actually show up in court (usually, if they're a well-established group and they don't want to be hit with a deluge of lawsuits because one person sued them and won), then certified-return-receipt is all you need. But if you think they might NOT show up and you want to have airtight evidence that you served the papers on them properly, you need to also send by restricted delivery to a person (i.e. a real human, not a company and not the organization itself) who is an officer of the organization. If you have their registered agent's name and address, that's the person to send to by restricted delivery.

  If you send by restricted delivery, it goes out with a little green card attached to it, and if the postal worker is doing their job, they should deliver the envelope only to the person listed as the recipient, and require them to sign the card and write their name legibly above their signature. Then, the green card gets mailed back to you. However, very often I'd find that the cards would come back with illegible signatures and no names or the wrong names. If you use this method, try writing on the envelope: "Attention USPS! This envelope MUST be delivered to the person named as the recipient, they MUST sign for it and their name must be printed LEGIBLY above their signature." I never got around to trying this, since by that time I'd given up on serving papers by mail, and always used process servers.

  Basically, the trade-off is that the stricter you want to be about how the papers are served by mail, the greater the chance that it won't work (e.g. if the mailman can't find the person), but the more solid your proof of service will be if they don't show up in court.

If you serve the defendant using a process server, you'll get back an affidavit of service in the mail. If you serve them by mail, you'll get a return receipt that (if the judge accepts it) will constitute your proof of service.

Negotiate with the defendant

Once you get your proof of service back in the mail, now the defendant knows they're being sued, so you can try to negotiate a settlement. This depends on your style, and theirs.

One thing to keep in mind: Don't worry if they threaten to tell the judge that you filed a lawsuit and then tried to "blackmail" or "extort" money from them or "shake them down". Judges encourage parties to settle lawsuits out of court. Unless the judge thinks your lawsuit is bogus to begin with, they're not likely to be swayed by the defendant claiming you tried to negotiate a settlement.

But assuming your efforts to shake down, extort, blackmail etc. the defendant were unsuccessful and they don't want to settle, the next step is your day in court.

Preparing for court

Make sure you bring all of the following:

• Your proof of service (see previous steps)
• A copy of the Telephone Consumer Protection Act with parts (b)(1)(B) and (b)(3)(A) circled.
• A copy of 47 CFR 64.1200 printed out from this link, which shows the text of the law with proper indentation and formatting and makes it easy to read. Circle parts (a), (c), and (d).
• A copy of 47 CFR 64.1200 printed out from the official government site. Just to prove that the stuff you printed out in the previous step wasn't something that someone made up and posted to the Web as a prank. However the way they have it laid out is harder to read.
• A transcript of the phone call that you're suing over, if it was left as a voice mail, or if you managed to grab a recording of it with a handheld tape recorder when you first got the call.

In court

Before the judge appears, a mediator may ask if you want your case to be handled by mediation. If the other party is present, I'd recommend trying this option. The thing to remember about mediation is that if you and the other party can't reach an agreement, you can always go back before the judge. You're not giving up your day in court by agreeing to mediation.

If you can't reach an agreement, or the other party doesn't want mediation, or the other party isn't there, then when the judge calls you to present your case, show the judge your proof of service, your record of when you received the phone call, and the laws that make it illegal and specify $500 in damages.

What happens next varies wildly, depending on the judge. Some of them are polite and some of them yell at almost everybody. Some of them hate junk calls as much as you do, and some of them hate amateur wannabe lawyers clogging the court's time because they saw one episode of Law & Order and thought they could do it themselves. The future at this point is a fog that I can't predict, so I'm not going to try.

All that I can shout blindly into the fog is that judges do appreciate it if you stick to the law, and not try to make any emotional speeches about why you think the issue is so important. (All that happened to you anyway was that you got a phone call, which means you're not going to win the sympathy game anyway, so don't play!)

You're out of the fog? You won? Great, keep reading!

After you win

If the defendant doesn't pay after 30 days, call a local collection agency and ask them what you have to do for them to try to collect the judgment. Collection agencies normally don't charge any money up front, and only take a percentage of what they're able to collect. Unfortunately it can be as high as 40 or 50 percent. The upside though is that they don't get paid if they can't collect, so you know they're going to try.

From that point onward, the collection agency will be able to give you better advice than I can, so my narrative thread ends here, hopefully with you holding a judgment in your hands.

If enough people do this, maybe the problem will go away. Then again maybe all that will happen is that more non-profits will start putting the name of their organization and their phone number in the pre-recorded calls that they make, which means that you can't sue them. Then your only recourse is to call them up and chew them out, so make it good!

Sparr0 writes, "The FBI has raided the home of Christopher Soghoian, the grad student who created the NWA boarding pass site. Details can be found on his blog including a scanned copy of the warrant. The bad news is that he really did break the law. The good news is that Senator Charles Schumer did it first, 19 months ago, on an official government website no less. The outcome of this trial should be at least academically interesting. At best, it could result in nullifying some portion of the law(s) that the TSA operates under." Read on for Sparr0's take on what laws may apply in this case.

Boiling down some of the legalese, the charges (if any are filed) will be "conspiracy to knowingly present a false and fictitious claim upon or against the United States, or any department or agency thereof in violation of USC 18 (secs. 2, 371, 1036, 1343, 2318) and USC 49 (secs. 46314 and 46316) and 49 CFR (secs. 1540.103 and 1540.105)" (edited for brevity).

Sparr0 writes, "The FBI has raided the home of Christopher Soghoian, the grad student who created the NWA boarding pass site. Details can be found on his blog including a scanned copy of the warrant. The bad news is that he really did break the law. The good news is that Senator Charles Schumer did it first, 19 months ago, on an official government website no less. The outcome of this trial should be at least academically interesting. At best, it could result in nullifying some portion of the law(s) that the TSA operates under." Read on for Sparr0's take on what laws may apply in this case.

Boiling down some of the legalese, the charges (if any are filed) will be "conspiracy to knowingly present a false and fictitious claim upon or against the United States, or any department or agency thereof in violation of USC 18 (secs. 2, 371, 1036, 1343, 2318) and USC 49 (secs. 46314 and 46316) and 49 CFR (secs. 1540.103 and 1540.105)" (edited for brevity).