• September 27, 2012
    Guest Post

    By Eric Priest, Assistant Professor, University of Oregon School of Law

    China’s pervasive intellectual property piracy problem, and the resulting impact on American industry and jobs, is a constant refrain in U.S. media and even the presidential campaign.  But are some U.S. companies also benefitting from the infringement?  Some policy makers and software companies are beginning to ask whether U.S. businesses are actually indirect beneficiaries of pirated intellectual property in China (and elsewhere).  When an upstream producer such as a Chinese factory uses pirated software in its manufacturing or logistics operations, the cost of production is reduced.  Some of those savings can also be passed along to the U.S.-based firm that hired the factory, or to the retailer that sells the product.  These cost savings arguably give the overseas manufacturer and the seller of such a product in the U.S. an unfair edge over competitors in the U.S. market.

    Louisiana and Washington State passed laws in 2010 and 2011, respectively, that make it an act of unfair competition to sell a product manufactured using “stolen or misappropriated” information technology.  The Louisiana statute is terse and therefore broad, while the Washington statute contains detailed limitations on liability and requires that the defendant be given notice and have the opportunity to cure.  The Washington statute creates liability for the manufacturer as well as for certain third parties (i.e., sellers other than the manufacturer), although it limits potential third-party liability to large companies with over $50 million in annual revenue, which are better positioned to police suppliers.  

    In addition, Attorneys General from thirty-six states and three U.S. territories last November requested that the FTC consider using its broad unfair competition authority under § 5 of the FTC Act to pursue manufacturers who sell in the U.S. goods that they produced using pirated software in competition with law-abiding manufacturers.  In addition to such federal action, some state Attorneys General have indicated they would consider the possibility of using existing state unfair competition laws (the “mini-FTC Acts”) to the same effect.

  • November 23, 2011

    by Jonathan Arogeti

    Envision OpenPlanet, a hypothetical program that could patch together every surveillance camera in the world and pair it with Facebook’s facial recognition software to create a perpetual video timeline database for each Facebook user. Would this violate the Fourth Amendment as an unreasonable search and seizure?

    This question, posed by George Washington University law professor Jeffrey Rosen, represents the crux of the issue explored at a recent forum at American University Washington College of Law titled, “Social Technology and the Threat to Privacy: How Facebook, GPS & Google Are Changing Our Lives.” Click here for video.

    Rosen links this question to the 2006 firing of Stacy Snyder, a Pennsylvania woman who was allegedly fired from her teacher training program after a MySpace picture showed her wearing a pirate hat and drinking from a plastic cup with the caption “Drunken Pirate.” Snyder sued in federal court that the picture was protected speech, but the judge disagreed because it “didn’t relate to matters of public concern.”

    Rosen points to law and technology as mechanisms for dealing with this “Stacy Snyder problem.” Europeans are experimenting with le droit a l’oubli, or the right to oblivion, as a mechanism to force online companies to protect the privacy of its customers. Technology, too, can secure customer privacy, and he points to a company that erases text messages after a specific period of time designated by the user.

  • June 27, 2011

    The following is a roundup of some recent developments in antitrust news:

    • The Federal Trade Commission plans to launch a formal investigation into whether Google Inc. has “abused its dominance in Web-search advertising,” a probe that some policy watchers say could be a watershed moment for antitrust policy, The Wall Street Journal reports. While Google has been the subject of several antitrust investigations, prior investigations have focused on mergers and acquisitions, as opposed to the search advertising business, which is Google’s biggest money-maker, according to WSJ. In a blog post, Google Fellow Amit Singhal responds to the FTC’s announced investigation by articulating Google’s core principles, which he says will enable the company to “stand up to scrutiny.”  And in a recent column in Main Justice, TechFreedom Senior Adjunct Fellow Geoffrey Manne blasts the FTC’s plan to investigate Google for “unfair methods of competition” under Section 5 of the FTC Act, which, he argues, does not apply to claims that Google harms competitors rather than consumers.
    • AT&T’s planned acquisition of T-Mobile is sparking continued questions about the reason for the merger, with the FTC investigating AT&T’s claim that it needs more “wireless spectrum” to avoid dropped calls and satisfy the need for data access, and a Department of Justice probe continuing, NPR reports. Sprint and other opponents of the deal allege AT&T has more licensed spectrum than any other carrier in the country, and that much of it goes unused, but some policy experts say AT&T is just doing long-range planning. Sprint also filed an FCC petition against AT&T last month.
    • Intel Corp., Apple and several other large companies have received approval from the Department of Justice to bid on a “trove of high-tech patents” from the now-bankrupt telecommunications gear-maker Nortel Networks Corp.,The Wall Street Journal reports.
  • November 11, 2010
    Google's Street View project may not have greatly troubled the Federal Trade Commission (FTC), but as The Washington Post reports the Federal Communications Commission (FCC) is taking a different tack. The FCC, the newspaper reports, has launched an investigation into whether the Street View mapping program violated any communications laws when it apparently inadvertently sucked up personal information such as e-mails and passwords from unsecure Wi-Fi networks.

    The announcement follows the FTC's decision to close an inquiry into the Street View project, and news of international governments ramping up their criticism of the mapping program, which was launched in 2007 to gather street-level images from the U.S. and 30 other countries.

    The New York Times reports, Google cars "were also recording information about Wi-Fi networks in nearby homes and businesses, data that can be used to help mobile devices determine their locations. But Google went beyond noting the existence of such networks and recorded information that was sent over them."

    In a statement regarding its investigation, Michele Ellison, chief of the FCC's enforcement bureau, said, "Last month, Google disclosed that its Street View cars collected passwords, e-mails and other personal information wirelessly from unsuspecting people across the country."

    But, as The Post notes, the FCC has not provided much more about its investigation. Marc Rotenberg, head of the Electronic Privacy Information Center (EPIC) told the newspaper, "Intercepting communications traffic is a serious crime in the United States."

    Earlier this year, EPIC urged the FCC to open an investigation into Google's Street View program. In its letter, EPIC asserts that Google's collection of personal information "could easily" amount to a violation of a federal wiretap law. Rotenberg told The Post that the act is "one of the strongest privacy laws we have because of the strong privacy presumption in network communications."

    Authorities in Britain, Germany and Canada have raised concerns about the Street View program and violations of privacy.

    Google issued a statement yesterday saying it was "profoundly sorry for having mistakenly collected payload data from unencrypted networks."