Federal Court in Virginia court says domain names are not property, but contractual rights (Venkat Balasubramani, 14 Jan 2014) – Following the sex.com case from the Ninth Circuit , it is taken for granted that domain names are property that can be converted, sold, transferred, or subject to a creditor’s collection efforts. Interestingly, a federal district court in Virginia took a contrary view. The case arose out of a bankruptcy of Alexandria Surveys International. Two competing Alexandria surveying companies were trying to buy the assets of ASI and ended up with conflicting claims. The first company, Alexandria Surveys, LLC, acquired the telephone number and web address from Cox Communications, the provider, under the theory that these were executory contracts that could be taken over. However, the estate was reopened at the request of a second company (Alexandria Consulting Group) and in the second go around ACG purchased a bunch of assets from the trustee, including the web address and telephone number. The bankruptcy court ordered the ASL to turn over the web address and telephone number (and servers) to ACG. ASL objected, arguing that the web address and telephone numbers were not “property of the bankruptcy estate.” The district court agrees with ASL on appeal. The court largely relies on the Virginia Supreme Court’s decision in Network Solutions v. Umbro : “a domain name registrant acquires the contractual right to use a unique domain name for a specified period of time . . . ‘a domain name is not personal property but rather’ the product of a contract for services.” ACG tried to distinguish Umbro on the basis that it involved a garnishment proceeding, but the court says that the key part of the holding-that a domain name is a “contractual right”-applies regardless. The court says that because ASI did not have a property interest in the website and phone number at most it had a contractual interest and since the trustee did not assume it, there was nothing to be sold to ACG.

Provided by MIRLN.

Image courtesy of FreeDigitalPhotos.net/jscreationzs.

URL shortening in legal briefs, and now legal opinions (Volokh Conspiracy, 2 Dec 2013) – Most readers will be familiar with URL shortening services — redirection services that give users a short web address that points to a longer one. I’ve come across URL shortening in legal briefs more and more, and I have used such links in briefs myself. The shortening avoids an unsightly excessively-long URL when you are linking to content on the web, and it’s also easier for the reader who might hand-type the URL into a browser. In the opening brief in United States v. Auernheimer, for example, I linked tohttp://goo.gl/dVQ4k instead of to the ugly https://chrome.google.com/webstore/detail/scraper/mbigbapnjcgaffohmbkdlecaccepngjd?hl=en. In the last two years, federal court decisions have started to use URL shortening links, too. Judge Kozinski uses them extensively in today’s dissent in Minority Television Project v. FCC, a case on the First Amendment implications on banning certain kinds of ads on public TV. A quick Westlaw search finds 9 judicial opinions before today’s decision that use Google’s URL shortener, goo.gl. Several of them use the service for maps. It’s an interesting development, and I suspect it’s one that we will see more of rather than less of in the future.

Provided by MIRLN.

Image courtesy of FreeDigitalPhotos.net/renjith krishnan.


Google doesn’t think so.  In court filings last month, Google argued not only that someone using its service has no reasonable expectation of privacy in the contents of their emails, but that anyone that sends a Gmail user an email has no expectation of privacy.  The main case cited by Google was Smith v. Maryland, whereby the Supreme Court held that the use of a pen register (a device that records all numbers called from a particular phone line) was not a violation of the 4th Amendment because no reasonable expectation of privacy existed in the numbers you were dialing as you were freely giving these to the phone company in order to connect you.

While Google’s arguments may be relevant to the NSA’s metadata collection programs, Google’s algorithms go beyond recording email addresses, but read the content of emails as well.  For this reason, in this author’s opinion, the analogy with Smith is strained to say the least.

In what makes for some interesting reading, the class action complaint filed against Google that has precipitated these 4th Amendment arguments, largely revolves around Google’s decision to change its privacy policies related to all of its products to a single policy which allows Google to use information obtained from one product with a consumers use on any of its products.

Citing an Eric Schmidt quote (Google policy is to get right up to the creepy line and not cross it. – October 2010), the complaint can be summed up by saying that the Plaintiff’s believe that Google has officially crossed the creepy line and into breaking the law territory.

While the blogosphere is hammering Google for this admission, it may actually work in their favor- the more the world knows that Google is reading and using your information (beyond the indiscernible privacy policies that is), the less a person will, in the future, be able to continue to claim that they have an expectation of privacy because they’ve been put on notice about Google practices.  This is exactly, in fact, what Google argues with respect to the named Plaintiffs.  Even knowing this, hundreds of millions of people continue to use Google products because, well, there pretty darn good and they’re free.  Wait…what was that adage again?  Oh yeah-

“If you’re not paying for the product, you are the product.”

A copy of the original complaint (albeit severely redacted) of the lawsuit is available here.

A copy of Google’s motion to dismiss and its arguments relating to reasonable expectation of privacy is available here.

Since 2009, lawmakers in Brazil have been attempting to pass a revolutionary piece of legislation which would recognize a new swath of civil rights regarding the Internet.  The “Marco Civil da Internet” borrows from international internet norms regarding expression, privacy, and net neutrality to identify new legal rights which would ensure that citizens reap the benefits of internet freedom while still being protected from data snooping and other possible harms.  The Marco Civil would restrict both the government and private actors’ abilities to violate citizens new rights. Many global tech companies such as Google, Facebook, and Mozilla support this bill in the hopes that other nations would follow Brazil’s lead.

The bill has faced harsh opposition from corporate groups and telecom companies who fear that continuing common, benign, practices under the new regime would leave them open to liability.  Other groups fear that changes to the bill have diluted its effectiveness in protecting for freedom of expression and other rights.  The result up to this point has been to make the process of drafting and revising the bill very difficult.   Questions arise such as whether these are negative rights, in that they dictate what the government and private actors cannot do with respect to a citizen’s use of the Internet, or positive rights, in that they convey an obligation by the government to ensure that its citizens have free and protected access to the Internet.

The text of the final product would be immensely important not just for Brazil, but will affect how all nations frame their discussions on internet rights.  As such many are hoping the bill is passed as soon as possible, so that such a step forward in internet rights does not founder under Brazil’s political struggles.

The Supreme Court unanimously ruled last week that naturally occurring human genetic material cannot be patented, a step which would overturn some 4,000 patents already held by genetic research companies.  The Court essentially held that where genes occur naturally in humans, merely isolating them from the surrounding genetic information results in no “invention” to which a company could claim rights.  Many are viewing this as a very positive ruling which would ensure that the study of human genetics, and by the extension medical breakthroughs which come from it, would not be hobbled by legal burden and profit motive.

Opponents to the ruling hold that the ability to patent individual genes is an incentive for companies to do the research, and would lead to more efficient and valuable medical developments.  However, it remains true that the processes by which these genes were isolated can still be patented.  Moreover, the Court seems to have suggested that synthetic genes not found in nature can still be pattented, as it is more apt to consider them “inventions” rather than discoveries.  Likely, these rights will provide enough incentives on their own to keep companies engaged in research for the foreseeable future.

Image provided by zmescience.com

The proliferation of GPS devices represent a prime example of technology outpacing the law, with profound effects on individual privacy. As of yet there is no unified law dictating when using GPS tracking is acceptable or not.  Although there have been some cases on the issue, it is far from clear when businesses are allowed to track employees, when the government can track suspects (or individuals in general), when cellphone companies can track their users, or even how that data should be handled when collected.

The proposed Geolocation Privacy and Surveillance Act (hr. 1312/s. 639, or simply the GPS act) is an attempt by lawmakers to give “government agencies, commercial entities, and private citizens clear guidelines for when and how geolocation information can be accessed and used”.  Information on the bill and other proposed legislation can be found at gps.gov