Advanced Technology Seminar

Access to Technology: Americans with Disabilities Act, Computerized Voting, Digital

Currency, Open Source Licenses, and Distributed Computing.

Cyrus Daftary & Todd Krieger

February 23, 2015

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Agenda

Administrative Discussion Trademarks (cont.) Patents Americans with Disabilities Act Electronic Voting Open Source Licensing Questions & Answers

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Administrative Discussion

Questions relating to: Paper Presentation Website Business Plan Other Questions

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ICANN DisputeResolution Policy

Effective for: Domain name dispute under the primary top

level domains (.com, .net, .org., .edu., etc.). Jurisdictions and registrars that adopt the

ICANN policy. Including names not in commerce. Allows ‘in rem’ proceeding. (Porsche 51 F. Supp. 2d

707). Does not allow suspension of a name during the

dispute. Must prove similarity with trademark; establish

that there was no legitimate interest and prove bad faith. www.icann.org/udrp/

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Domain Name Dispute Resolution is Unpredictable and Potentially Biased

Approximately 85% of complainants prevail in arbitration (ICANN statistics): Many do not even respond to the arbitration

notice. Others quickly cede their domain names without

a dispute. Some settle before the parties arbitrate.

Biased toward trademark holders. Decision can be appealed to a court of

competent jurisdiction.

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Trademark Disputes

Cybersquatter goes to Jail Electronics Boutique v. Zuccarini - Cybersquatter made

a significant profit from affiliate advertisements on his site. Court awarded landmark damages. S.151 – Child Abduction Prevention Act - outlaws misleading

domain names

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Search Engine Keywords Can Google auction ‘Rosetta Stone’

trademarks as keywords? Rosetta Stone Ltd. v. Google Inc. (Case No. 09cv736, E.D. Va.,

8/3/10)

Google keyword program: https://adwords.google.com/select/KeywordToolExternal

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Trademarks: Registration No registration is required but….

Federal registration allows you exclusive nationwide use of a name within a product class.

State registration provides additional causes of action against infringers.

Registration provides notice to anyone trying to use the name in the same product class.

For info on registering domain names as TMs -www.uspto.gov/web/offices/tac/notices/guide299.htm.

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Patent - Scope“Any new and useful process, machine, manufacture, or

composition of matter, or any new and useful improvement thereof” 35 U.S.C. § 101

Articles of Manufacture

Machines Compositions of

Matter Processes

Ideas Scientific Principals Methods of doing

business Natural Substances

Types of work protected: Not protected:

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Patentable subject matter Novelty Utility Non-obviousness Lots of capital

Requirements for a valid patent

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U.S. average: >$10,000 97% of patents generate less

revenue than the cost of filing the patent.

Japan: $14,000 European Union (8 states):

$44,000 25% of the cost is for translation fees.

(Costs include legal fees)

Filing Patents Can Be Expensive

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Early cases held that an algorithm is like a law of nature, which cannot be the subject of a patent.

Later cases recognized patents which contained algorithms. The State Street algorithm case opened the flood gates for

Internet related patents by raising awareness and affirming their validity.

Bilski gutted most of State Street in 2010, but left the door open for the registration of intangible technology beyond the ‘machine or transformation’ test. “Software, advanced diagnostic medicine techniques, and

inventions based on linear programming, data compression, and the manipulation of digital signals.”

Must not be too abstract.

Computer Related Patents are Relatively New

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Internet related patents went from 433 in 1997 to 3,512 in 1999 and over 5,000 in 2000. Some of the obscure patents occasionally threaten to impact online activities.

IBM earned more than $2 billion in patent licensing in 2014.

The pace of registration may have slowed with fewer companies playing in the same arena.

Companies were on Patent Registration Frenzy

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“Method and apparatus for a cryptographically assisted commercial network system designed to facilitate buyer-driven conditional purchase offers.”

In other words: Priceline.com’s business model for reverse auctions.

Is this novel or non-obvious?

Patent # 5,794,207

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“Information handling system and terminal apparatus therefor. A central computer means in which plural blocks of information are stored at respectively corresponding locations, each of which locations is designated by a predetermined address therein by means of which a block can be selected.”

British Telecom v. Prodigy – hyperlinking. Dismissed.

Other Patents Claimed to Threaten the Internet as We Know It (4,873,662 - 1989)

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One click shopping (Amazon) Reverse auctions (Price Line) Online music sales (Sight Sound) Internet coupons (Cool Savings) Online auctions (E-bay) Video downloading (adult & other sites) What other patents are dormant but

could disrupt e-commerce?

Online Patent Disputes

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Patent owner who enforces patent rights but doesn’t actually manufacture the patented product (or service).

Some emerged by buying patents during the dot com bust.

Often send an offer for a nuisance level license fee.

Threat of injunction pushed settlement.

Non-Practicing Entities

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Supreme Court Reiterated Injunction Standard for Patent Infringement

Plaintiff must demonstrate: It has suffered

irreparable injury; Remedies at law are

inadequate; The balance of the

hardships weigh in favor of permanent injunction;

Public interest would not be disserved by permanent injunction.

eBay vs. MercExchange

Are Electronic Medical Records Patentable Subject Matter?

Mymedicalrecords case discussion What is the Mayo Test? What is required to pass the

second part of the test? What was the Court’s decision?

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Online Patents: Next Steps

Technology patent parameters are still evolving. eBay case gave some justices a forum to

complain. Be aware of patent issues when advising

clients to help them: avoid infringement protect a novel, unique process

Patent suits can cost millions to defend – even for a weak claim.

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Access to Technology

New technological developments have helped many people with disabilities: Voice synthesizers to translate computer

screens for the visually impaired Braille printers and keyboards

http://chh.erlm.siemens.de/en/s_nav35.html Access to vast amounts of information Remote communications Computer based home diagnostic tools

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HTML Explanation: ‘alt’ tags

Alt tags can be used as HTML labels for images.

May not be noticed by web pages users.

Not technically needed and may contain information not helpful to the site visitor.

Examples: AOL.com, boston.com <img border="0 src="http://www.aolcdn.com/aolportaltool/45ca5864-00378-00b99-c7bcbccd.jpg" width="200" height="150" alt="Rudy Giuliani and John McCain"/></a>

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Introduction to America with Disabilities Act (ADA)

ADA prohibits “discrimination in the enjoyment of goods, services, facilities, or privileges…”

Defines 12 places of public accommodation that must be fully accessible to disabled people. Place of public accommodation means a facility,

operated by a private entity, whose operations affect commerce and fall within at least one of the following categories…

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Places of Public Accommodation

(1) An inn, hotel, motel, or other place of lodging…;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of public gathering;

(5) A bakery, grocery, clothing or hardware store, shopping ctr., or other sales or rental establishment;

(6) A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(7) A terminal, depot, or other station used for specified public transportation;

(8) A museum, library, gallery, or other place of public display or collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergrad, or post-grad school, or other place of education;

(11) A day care center, senior center, shelter, food bank, adoption agcy, or social service center; and

(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

http://www.ada.gov/reg3a.html

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How Far Do Companies Have to Go to Provide Access?

ADA, passed in 1990, did not anticipate Internet.

2009 update expands disability definition.

Justice department in 1996 issued legal opinion ADA applies to web (Congress has authority to update ADA).

Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities using the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.

http://www.usdoj.gov/crt/foia/tal712.txt

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Some Companies Have Changed Their Sites When Faced With Legal Action

Ramada.com and Priceline.com settled with the NY Attorney General in 2004 http://www.oag.state.ny.us/press/2004/aug/aug19a_04.html

AOL made its site viewable through screen reading software. All images have .alt tags

http://findarticles.com/p/articles/mi_m0HDN/is_2000_Feb_9/ai_59478002

Other courts have disagreed on procedural grounds: Southwest Airlines http://writ.lp.findlaw.com/ramasastry/20021106.html

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Class Discussion: Target.com Website

Target complies with the ADA in its stores

Is the web site a related ‘service’ under the ADA?

Video: http://www.youtube.com/watch?v=wQT9yVeu_js

Target Settled in 2008

Using NFB recommendations to redesign site.

NFB will monitor site. By February 28, 2009, Target.com was fully

accessible. $6MM to class members ($3,500 each). $20k for lead plaintiffs’ non-profit. Target pays attorneys’ fees and costs.

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Access to Technology: Electronic Voting

Electronic voting machines can provide a reliable and cost effective alternative to traditional paper methods. Optical scanning devices automatically enter

ballot results Touch screen voting

Widely adopted since the 2000 U.S. presidential election. No ‘hanging chads’ such as punch card ballots.

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Federal Government Is Pushing Electronic Voting

Help America Vote Act (2002). http://www.fec.gov/hava/hava.htm

Designed to assist state migration from key punch and lever system to electronic systems. http://www.igs.berkeley.edu/library/htElectronicVoting2004.

html

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E-voting Machines are not Without Their Risks…

Individuals unfamiliar with touch screens may have difficulty voting.

National standards don’t exist yet. Certification can be bypassed.

Security: systems are vulnerable to hacking. Reliability: only as reliable as the underlying code

and user interface. Difficult to test if code is protected trade secret.

Verifiability: some touch screen systems do not have any paper backup or other method of validating results.

http://www.cnn.com/2012/11/03/tech/innovation/electronic-vote-security

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Next Steps for E-voting?

What measures should be in place to ensure reliability, verifiability, and security? Should these measures be

more robust than traditional voting systems?

Should voters be able to cast ballots online? What legal issues might

emerge?

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Software Licensing

“Can’t we just use the same contract?”

Eli and Jason are enjoying the success of their nostalgic iPhone case and app.

You already drafted a sales agreement for the iPhone case

Can the use the same agreement for their app click through?

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Licensing Introduction

Agreements are often used for the purchase and sale of commodities.

Unlike a commodity sale, software’s value is not from the tangible medium, but from the intellectual property, like music or a film.

Copyright law protects the unique underlying code and other original elements of a software program.

A software license agreement typically provides the legal right to install and run a software program, subject to certain restrictions.

A software license does not transfer ownership of the software to the licensee.

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How is Software Distributed?

Direct sale of the license to the end user

Sub-license through a third party

Resold through a distributor or reseller Retail channels System integrator Value added reseller

Packaged with other hardware or software

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There are many Licensing Models

Perpetual and term licenses Subscription license / rental Remote and local hosting Enterprise and volume licenses Open source, shareware, freeware Feature and capacity based licenses Software as a Service (SAAS), usage and

utility model Concurrent, per computer, and named user

licenses

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A ‘Software License’ may cover more than Software

Support Maintenance Updates and upgrades Training Documentation and manuals Implementation and configuration Customization and development Hosting Hardware Third party components Data migration Integration with other systems

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Agreeing to License Terms

Express agreement

Click-wrap

Shrink-wrap

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Selected Definitions

Software: the instructions telling a computer or device what to do May be on a PC or embedded in a product

Program: a series of instructions to perform a task

System software: control program or operating system

Application software: a program processing data or performing a function for the user

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Selected Definitions (cont’d)

Software license: limited right to use software within the restrictions of the license. More restrictive than assignment or sale.

Source code: computer instructions written by a programmer. Often must be compiled or converted into machine language before it can be used by the computer.

Object code: executable code that can be used by the computer. Difficult to decompile and modify without the source code.

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Source Code & Object Code

#include <stdio.h> void main(int argc, char *argv[]) { int i, result; result = 1; for (i = 1; i<6; i++) { result = result * i; } printf ("Result is: %d.\n",result); }

0000000 7f45 4c46 0102 0100 0000 0000 0000 0000 0000020 0001 0002 0000 0001 0000 0000 0000 0000 0000040 0000 0234 0000 0000 0034 0000 0000 0028 0000060 0008 0001 002e 7368 7374 7274 6162 002e 0000100 7465 7874 002e 726f 6461 7461 002e 7379 0000120 6d74 6162 002e 7374 7274 6162 002e 7265 0000140 6c61 2e74 6578 7400 2e63 6f6d 6d65 6e74 0000160 0000 0000 9de3 bf88 f027 a044 f227 a048 0000200 9010 2001 d027 bfe8 9010 2001 d027 bfec 0000220 d007 bfec 80a2 2005 0480 0004 0100 0000 0000240 1080 000c 0100 0000 d007 bfe8 d207 bfec 0000260 4000 0000 0100 0000 d027 bfe8 d007 bfec 0000300 9202 2001 d227 bfec 10bf fff2 0100 0000 0000320 1300 0000 9012 6000 d207 bfe8 4000 0000 0000340 0100 0000 81c7 e008 81e8 0000 0000 0000 0000360 5265 7375 6c74 2069 733a 2020 2564 2e0a 0000400 0000 0000 0000 0001 0000 0000 0000 0000 0000420 0400 fff1 0000 0001 0000 0000 0000 0000 0000440 0400 fff1 0000 0000 0000 0000 0000 0000 0000460 0300 0003 0000 0008 0000 0000 0000 0000 0000500 0000 0002 0000 0000 0000 0000 0000 0000 0000520 0300 0002 0000 0017 0000 0000 0000 0000 0000540 1000 0000 0000 001d 0000 0000 0000 0000 0000560 1000 0000 0000 0024 0000 0000 0000 0078 0000600 1200 0002 0066 6163 742e 6300 6763 6332 0000620 5f63 6f6d 7069 6c65 642e 002e 756d 756c 0000640 0070 7269 6e74 6600 6d61 696e 0000 0000 0000660 0000 003c 0000 0507 0000 0000 0000 005c 0000700 0000 0209 0000 0000 0000 0060 0000 020c 0000720 0000 0000 0000 0068 0000 0607 0000 0000 0000740 0061 733a 2057 6f72 6b53 686f 7020 436f 0000760 6d70 696c 6572 7320 342e 3220 6465 7620 0001000 3133 204d 6179 2031 3939 360a 0047 4343 0001020 3a20 2847 4e55 2920 322e 3935 2e32 2031 0001040 3939 3931 3032 3420 2872 656c 6561 7365 0001060 2900 0000 0000 0000 0000 0000 0000 0000

http://www.cs.cmu.edu/~dst/DeCSS/object-code.txt

Source code Object Code

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Basic Elements of a Software License

[Parties] Description of software License grant, scope and restrictions

May include copyright and patent rights [Pricing model and payment terms or reference to pricing document] Description of use, systems and users Restrictions use, duplication, modification, distribution and reverse

engineering (decompiling) Term and termination Warranty, indemnity, disclaimers and limitations of liability Applicable implementation, development, support or other services Confidentiality (if applicable) Open source exclusion Transferability Other standard terms.

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Recent Case: Is Software Sold or Licensed?

Ensure the software is properly licensed. Unusual opinion in Vernor v. Autodesk. Court looked at characteristics of transaction,

not how the transaction was described by the parties.

Appeals court reiterated the licensor’s rights.

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Source of ‘Code’ for Programming

Home grown or developed internally Transformed works:

Fair use rights to transform existing code into something new

License grant may restrict reverse engineering, decompiling, or other access to source code

Third party custom developer Freeware or software in the public domain

distributed without restriction Some common software programs and routines

are available online without restriction Licensed from commercial source Open source license

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Introduction to Open Source Licensing

Software distributed for free, but with license restrictions

Programs using GPL open source must: Allow access to source code; Allow others to modify the code; Allow others to distribute code, either original or

modified; All derivative works must be distributed under the

license.

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Open SourceLicense Terms Vary

GPL = General Public License

LGPL= Lesser GPL MPL (Mozilla)

BSD / MIT Apache

Viral

Non-Viral

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Benefits of Using Open Source Software

Plentiful and varied 140,000+ projects on sourceforge.net.

Free – no contract

Some programs tested and improved by many programmers

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Open Source Risks

‘Infection’ of other code or programs with license requirements What is a derivative work: dynamic vs.

static code Security risks No warranty or indemnity

Code may contain restricted copyrighted materials

Processes may infringe patents. No standard or easy source of help Different licenses have different

terms

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Open Source Licenses are Enforced

Free Software Foundation enforces open source license requirements http://www.fsf.org/licensing

Reports may be made by:

Disgruntled employees Hackers Savvy programmers

Improper use can: Require the unrestricted release of all associated software Create public relations problems Create copyright liability Encroach on third party obligations

©

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Clients Using Open Source Need a Formal Policy

Policy can provide a roadmap to reduce risk. Don’t rely on informal discussions or communications.

Are there commercial licenses available for similar applications?

Client should audit all software use to ensure license compliance, not just open source applications.

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Open Source Policy

Formal identification of application and review process Is the software modified? How are the libraries accessed?

Define uses: Internal [Manageable Risk]

Linux server External [Higher Risk]

Products transferred to third parties

Cloud Computing

Can refer to any service outside the firewall SAAS Storage as a service Platform as a service

Computing using a consumption (utility) or subscription model

Diminishes need for IT infrastructure

Reduces the amount of hardware and softwarehttp://aws.amazon.com/s3/ 53

Legal Risks

Decentralized control Information security Privacy Data segregation Disaster recovery E-discovery Services often provided ‘as-is’

http://www.networkworld.com/news/2008/070208-cloud.html

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Questions & Answers