In mid-February, the New York Attorney General’s office settled a complaint against Blue Coat, a business hardware and software company, for its End User Licence Agreement which prohibited benchmarking. The NYAG challenged the provision, which was only revealed to customers after purchase. The settlement comes with an approximately $30,000 slap on the wrist, an a promise not to include any anti-benchmarking language in EULAs for products sold in New York.
Here is the NY Attorney General’s press release. This is the second time, I believe, that the NYAG has gone after speech restrictive clauses in EULAs on behalf of consumers and succeeded. The success is particularly notable because Judge Easterbrook’s decision in ProCD v. Zeidenberg, often cited as the seminal case on EULA enforceability, suggests a different result. Yet, as I often inform my students, just because there is strong law against you doesn’t mean you can not win.
A couple of questions: First, why won’t the California AG’s office also be a leader in this area? Second, how did the NYAG win, and can consumer rights lawyers around the country expand this victory to challenge anti-Fair Use and reverse engineering clauses as well? Third, do this successes spell the end for ProCD?
News: In a great article (download here (pdf) —
I’m asking for permission to post in full reproduced by permission of Warren Communications News, www.warren-news.com, 800-771-9202) by Louis Trager for Communications Daily, Tracfone is claiming that I received personal favoritism from the Copyright Office. I. Received FAVORITISM. From the COPYRIGHT OFFICE! Stop laughing and keep reading.
Background: Every three years, the Copyright Office holds a rulemaking for exemptions to the Digital Millennium Copyright Act’s anti-circumvention provisions. The statute prohibits circumventing digital locks that control use of copyrighted works. Intended to stop crackers from cracking DRM on music and movies, phone companies were using the statute to stop people from unlocking cell phones they had purchased so that they could use them on other wireless communications providers’ networks. CIS and the Cyberlaw Clinic applied for an exemption for cell phone unlocking on behalf of an individual and a recycling business, The Wireless Alliance. After a long, hard battle, we won, and our exemption was granted. I wrote two Wired News/Circuit Court columns about unlocking, Free The Cell Phone! and Cell Phones Freed! Poor Suffer?.
Following our win, Tracfone sued the Copyright Office, claiming violations of due process, constitutional separation of powers and the Administrative Procedure Act.
Details: Apparently, at a California State Bar conference, Copyright Office General Counsel David Carson criticized Tracfone for filing its objections seven months after the public comment period had closed, and for failing to provide a satisfactory explanation. TracFone attorney Jim Baldinger lashed out at Carson, and then at me. Here’s the quote from Trager’s article:
Baldinger suggested that the Copyright Office went to unusual lengths to accommodate exemption proponent Jennifer Granick, exec. dir. of Stanford Law School Center for Internet & Society, to the extent of flying out to stage one of 2 hearings in the proceeding at the law school. The other was in D.C. Asked how he reconciled suspicions of favoritism with Carson’s having had nothing good to say about Granick’s boss, Prof. Larry Lessig, Baldinger said he couldn’t: “I don’t understand why the Copyright Office did what it did… I’m shocked by the way the whole thing has transpired.”
The fact is, we beat TracFone fair and square. There’s nothing unusual about the Office flying out for hearings. In the previous rulemaking, they held sessions in Los Angeles and D.C.
And, their late submission was not strategic as a piece of advocacy. TracFone basically proved everything we were saying was true, which was that cell phone locks were “technological protection measures” covered by the anti-circumvention statute, that there was a current risk of harm to unlockers, and that the industry was flat out unable to point to any way in which the exemption would promote copyright infringement, the prevention of which is the point of the statute. TracFone proved for us that they were using the DMCA to protect their prepaid business model, which was not what Congress intended or what the Copyright Office is supposed to promote.
I didn’t need and I didn’t get Copyright Office favoritism. I guess Baldinger can’t imagine that a lone clinical teacher with eight students and a small office in the basement of Stanford Law School could beat his big law firm and rich client. But we did.
I weigh in on NSLs and the FBI with today’s Circuit Court column: FBI Slips Demand Patriot Act Cuts.
I think the most interesting part of the column is the end where I try to grapple with the FBI’s assertion that the lower standard of proof for national security letters is really helpful to their investigations. While its a small part of this column, its an issue I plan to discuss more in future columns, and as Congress begins to reconsider the USAPATRIOT grant of powers in light of the FBI abuses.
Yesterday, our team came in second place in the Chinese New Year Treasure Hunt organized every year by Jayson Wechter. Yesterday was one of the best days of my life. We have been striving for victory in the Hunt for the past few years, each time finishing in a timely fashion, but missing a clue here or there. No longer. The team, consisting of Brad, Rob, Abigail, Ethan, Rebecca (who also navigates) and me, was in our finest form. Hooray! Next year, we move to the Master’s Division.
… with the Vice President of the Colonies, Richard Hatch. This self portrait was taken at this weekend’s Wondercon. So much fun. Thank you, Richard.
Alaska police think they know, as they hang the possibility of criminal charges over the head of a 21 year old who was playing online games in the parking lot of the public library. I’m quoted in this story about the pending investigation.