1. Copyright infringement; or
2. Infringement or violation of any of the protections contained in the DMCA (Digital Millennium Copyright Act) including its anti-circumvention provisions; or
3. The sale or promotion of counterfeit goods.

The shutdown of the website is effected by disabling DNS translation. When a user types in a URL such as www.ZeidmanConsulting.com, the network devices that implement the Domain Name System (DNS) throughout the Internet, called “DNS servers,” translate the characters into an Internet Protocol (IP) address consisting of numbers such as 205.134.253.65.

Recently the web domain registrar GoDaddy announced that it supported the bills. Shortly thereafter, angry Internet users at blog site reddit called for a boycott of GoDaddy and, not surprisingly, GoDaddy competitors immediately jumped in by offering users discounts to jump ship. To date, over 40 Internet companies have come out against the bills (see here)*. The House issued a paper listing over 140 companies that have come out in favor of the bills (see here). GoDaddy gave in to the pressure and reversed its position on the bills.

Renowned attorney Mark Lemley and colleagues David S. Levine and David G. Post wrote a recent article for the Stanford Law Review entitled Don’t Break the Internet. You can tell from the title where they stand, but I’d like to address each of their main points.

The Bills Will Not Harm Internet Infrastructure

These authors claim that “the bills represent an unprecedented, legally sanctioned assault on the Internet’s critical technical infrastructure.” The authors go on to say that implementing such filtering “threatens the fundamental principle of interconnectivity” and “will also have potentially catastrophic consequences.” I’ll give them the benefit of the doubt that they’re not trying to simply use exaggerated scare tactics, but rather they just don’t understand the technical issues.

Every time you register a new domain, the DNS servers throughout the Internet are updated with the translation. This is part of the normal course of events. Every time a domain name expires, the DNS servers are again updated to remove the translation. According to a report by VeriSign, there were 4.9 million new domain name registrations in the third quarter of 2011. That’s about 37 DNS changes per minute on average, not counting changes due to expired domains. From a technical point of view, the bills do nothing different than what happens many times each day on the Internet and has no technical challenges or risks whatsoever.

The Bills Do Not Violate Basic Principles of Due Process

These authors go on to state that these acts “violate basic principles of due process… by depriving persons of property without a fair hearing and a reasonable opportunity to be heard.” I’ll assume that these attorneys have never watched the TV show Law and Order, or any other cop show, or taken part in a criminal investigation where a court orders a warrant, based on evidence, that otherwise violates a person’s constitutional rights because there is evidence of illegal activity. These bills, as with all similar bills, require a court to make a decision to take action or not. I’ll assume that the authors of the paper have also not spent much time in a courtroom, because as an expert witness I can tell you that no judge takes such a decision lightly and that there are high thresholds of proof. Without this kind of ability to shut down illegal activity, accused criminals would simply avoid showing up for court in order to evade punishment.

The Bills Do Not Violate Free Speech Rights

These authors claims that each bill is an “unconstitutional abridgement of the freedom of speech protected by the First Amendment.” I’ll assume that the law professors are a little rusty on constitutional law particularly with respect to the First Amendment. Many types of speech are not protected such as hate speech, child pornography, and speech that infringes on copyrights.

The authors go on to claim that “[t]he Constitution requires a court ‘to make a final determination’ that the material in question is unlawful ‘after an adversary hearing before the material is completely removed from circulation.’” In other words, you cannot take down a website until you allow the accused to appear in court to defend himself. This quote is taken from the decision in the case of Center for Democracy & Technology v. Pappert. Again I’ll give the authors the benefit of the doubt that they were just too busy to actually read the court’s decision, but you can do so by clicking on the link. The full decision reads a “publication may not be taken out of circulation completely until there has been a determination  of obscenity after an adversary hearing” (emphasis added).This case is about the conflict between free speech rights and an accusation of child pornography, not about free speech rights and copyrights. But a case about free speech and copyrights on the web already has a precedent. Years ago the Digital Millennium Copyright Act (DMCA) was similarly challenged in federal court and survived. The decision in U.S. v. Elcomsoft confirmed that restrictions in the DMCA were not a violation of due process and did not conflict with the First Amendment.

In fact, copyrights have been enforced in this country as long as the constitution has been around, and longer than the Bill of Rights because their protection is given in Article I, section 8:Congress shall have power… To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

The formal codification of copyright law took the form of the Copyright Act of 1790, before the adoption of the Bill of Rights in 1791. So the First Amendment’s protection of speech and the Copyright Act’s provisions for injunctive relief, seizure, and forfeiture coexisted easily for over 200 years without conflict. Terry Hart explains the history of the relationship between copyright and free speech in his extensive article here and in several other well-researched articles on his Copyhype blog.

The Bills Would Not Turn the U.S. Into a Repressive Regime

The authors’ final point is made with this statement:

It would be not just ironic, but tragic, were the United States to join the ranks of… repressive and restrictive regimes, erecting our own “virtual walls” to prevent people from accessing portions of the world’s networks.

Repressive regimes are actually those that do not protect individual property rights, but rather allow the government to determine who owns what, or conversely allows property theft to go unpunished. Repressive regimes do not allow individuals to protect their own property but require the government to do so on their behalf. Repressive regimes do not have the court system and the legal system of the United States that strict procedures and requirements to be met. Repressive regimes do not have the checks and balances in their government systems to allow one organization, corporation, government branch, or individual to challenge any law and any action taken by any other organization, corporation, government branch, or individual. Repressive regimes concentrate power in a few elite, not in individuals. There is no realistic concern that this law will turn the U.S. into a repressive regime.

Copyright and Trademark Infringement on the Internet is a Very
Real Problem

In their conclusion I find surprising agreement with the authors. They state:

Copyright and trademark infringement on the Internet is a very real problem, and reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. But the power to break the Internet shouldn’t be among them.

They are absolutely correct. We must find reasonable ways to stop infringement of intellectual property on the Internet. Such a solution must be fair to the victim of the infringement. It must uphold the principles of the Constitution of the United States. And it must not break the Internet. SOPA and PIPA may not be perfect implementations of such protection, but they meet all of these requirements. There may be better strategies that can be reached through measured and thoughtful debate, but not through excessive hyperbole and fear.

*It doesn’t surprise my to see Scribd on this list. I play a regular game of whack-a-mole trying to remove illegal, free copies of my articles and books on this site that just pop up again within a few weeks after I send them a DMCA takedown notice.

• Have us give input into schedules. We know best how much work an analysis is going to take. And some of us have lives outside of work (not me, but I’ve heard that others do). Don’t give us a schedule without our input and expect us to meet it.

• Don’t hire us just to keep us off the other side. I’ve had this happen. It’s flattering, but it’s also unethical. I need to make a living. Also I will never work for you again, and I will warn my colleagues about you.

• Involve us with crafting the strategy. Don’t let us work in the dark and then complain, for example, that our invalidity argument hurts the non-infringement argument or vice-versa. And by the way, a great argument for one will always make the other much more difficult to show.

• Involve us with claim construction. We have the appropriate experience to figure out a decent claim construction. Too often I’m called into a case where the claim construction makes little sense to me. I need to be educated about how the claims are construed and then I need to see if I can work with them. Sometimes adding or removing a word from the claim construction would make things significantly easier for me to understand and explain to the judge and jury.

• Give us enough time to do our jobs. Maybe this is a pipe dream. Lately, cases have been more and more compressed and I’m brought in later, probably to save costs. But it hurts the case and stresses us out.

• Don’t antagonize us. We’re they guys who are going to help your client by clarifying their position and explaining difficult concepts to the judge and/or jury. You don’t want us ticked off, even if we really are stupid jerks. You want us in a good frame of mind and happy about what we’re doing. At least until we’re done testifying.

• Explain your positions to us patiently. If you can’t get us to understand it and adopt it, how can you get a judge or jury?

• Don’t tell us we have to adopt your positions or we’ll lose the case. We’re independent and unbiased. The threat of losing the case is not a reason for us to support your position, and stating this can come back to haunt both of us eventually.

• If things aren’t going well, meet face-to-face. It’s easier to communicate about difficult subjects. It’s easier to wave hands, draw diagrams, point to things. And it’s more likely for both to see each other as humans, not someone being difficult.

• Don’t expect us to understand all the legal issues. I’ve met lawyers who didn’t understand all the legal issues. I actually do understand legal issues more than most experts because of my experience and my writing on the topic. Yet there are still gaps. And the lawyers can disagree. I’ve been in many long sessions where lawyers argued about legal issues.

• Don’t believe you understand all the technical issues. Some of the lawyers I’ve met were once great engineers. Others have no engineering experience whatsoever. Some will take my word completely and others will fight me. I don’t mind reasoned debate—in fact I enjoy it. But remember that my understanding of the technical issues is ultimately what I will present in my reports and my testimony.

• Be clear in your instructions. We know you’re in a hurry, but this is critical to getting good information. I’ve had cases where I got a quick call to do some analysis and then spent the weekend setting up equipment, getting results, and writing a report, only to find there had been a miscommunication about what was needed. Sure I get paid per hour, but I’d still like to know I’m doing something useful. I’m sure you and your client prefer that too.

• Have us sit in on depositions. We can add a lot of knowledge and we can help craft the direction of the questioning. I was in one deposition where, searching the Internet, I found an expert’s presentation slides promoting a software method while she was testifying she would never ever use such an “unreliable” method. I’ve also had lawyers call me after a “very successful” deposition where they thought they’d uncovered some really useful facts but were asking questions about the wrong technology.

• Don’t write the reports and expect us to just sign it. Our reputations and careers are on the line, not yours. Unfortunately, some experts do this and collect their checks. I won’t and neither will any expert worth his or her hourly rate.

• Expect us to sleep some time. OK, the lawyers themselves get little sleep during a case. Me too. I just prefer that you act as though you care about my getting rest even though we both know I won’t. So don’t tell me to be available at midnight, ask me if I can please make myself available at midnight even though you know it’s a burden. It just sounds nicer.

• Pay us on time or be honest about any problems. Sometimes clients run into financial trouble. I prefer to work for a client who is honest about financial trouble than one who constantly tells me “the check is in the mail.” Usually this is an issue with the client not the lawyer, but I’ve had lawyers misplace my final invoice, simply because they had moved onto other more pressing matters. My payment is a pressing matter, and a late or missing payment means I’m unlikely to be available the next time you need my expertise.

• Don’t negotiate our fees after the case is over. This is just poor business practice and makes me not want to work with you again. The time for negotiation is before hiring me, not after I’ve put in time on the case.

• Remember that our job is to be honest and unbiased. Expect us to point out the bad along with the good. If we find your client’s case doesn’t have merit, at least be happy we discovered that before the other party’s expert informed you at trial. You can settle early or limit the damages or just know that you did the right thing.

Overall the book covers the following topics:

• Key concepts of software intellectual property
• Comparing and correlating source code for signs of theft or infringement
• Uncovering signs of copying in object code when source code is inaccessible
• Tracking malware and third-party code in applications
• Using software clean rooms to avoid IP infringement
• Understanding IP issues associated with patents, open source, and DMCA

You can purchase your copy from Amazon.com here.

This year the conference will be at Longwood University in Richmond, Virginia from May 25 through 27. I’m serving on the conference committee. We’re looking for paper, presentation, and panel submissions in the following areas:

Curriculum

1. Digital Forensics Curriculum
2. Cyber Law Curriculum
3. Information Assurance Curriculum
4. Accounting Digital Forensics Curriculum

Teaching Methods

5. Digital Forensics Teaching Methods
6. Cyber Law Teaching Methods
7. Information Assurance Teaching Methods
8. Accounting Digital Forensics Teaching Methods

Cases

9. Digital Forensics Case Studies
10. Cyber Law Case Studies
11. Information Assurance Case Studies
12. Accounting Digital Forensics Case Studies

Information Technology

13. Digital Forensics And Information Technology
14. Cyber Law And Information Technology
15. Information Assurance And Information Technology
16. Accounting Digital Forensics Information Technology

Networks And The Internet

17. Digital Forensics And The Internet
18. Cyber Law And The Internet
19. Information Assurance And Internet
20. Digital Forensics Accounting And The Internet

Anti-Forensics And Counter Anti-Forensics

21. Steganography
22. Stylometrics And Author Attribution
23. Anonymity And Proxies
24. Encryption And Decryption

International Issues

25. International Issues In Digital Forensics
26. International Issues In Cyber Law
27. International Issues In Information Assurance
28. International Issues In Accounting Digital Forensics

Theory

29. Theory Development In Digital Forensics
30. Theory Development In Information Assurance
31. Methodologies For Digital Forensic Research
32. Analysis Techniques For Digital Forensic And Information Assurance Research

Digital Rights Management (DRM)

33. DRM Issues In Digital Forensics
34. DRM Issues In Information Technology
35. DRM Issues In Information Assurance
36. DRM Issues In Cyber Law

Privacy Issues

37. Privacy Issues In Digital Forensics
38. Privacy Issues In Information Assurance
39. Privacy Issues In Cyber Law
40. Privacy Issues In Digital Rights Management

Software Forensics

41. Software Piracy Investigation
42. Software Quality Forensics

Other Topics

43. Cyber Culture And Cyber Terrorism

The deadline for submissions is February 19. The website for the conference is at http://www.digitalforensics-conference.org where you’ll find more information about the conference, the venue, and submission guidelines.

One unique feature of online applications is that often the full source code is downloaded to the user’s machine. This makes it easier for your competitors to copy your code. It also makes it easier for us to detect that copying. Learn more about SAFE Online IP Screening here or email us for details about how we can protect you from unauthorized copying and dissemination of your code.

Which is Right For You?

Which product is right for you, CodeSuite or CodeSuite-LT? Click here for a table that compares the features of both programs so you can choose the right solution.

Second, Zelnick doesn’t foresee the possible ultimate business model of Righthaven. While I don’t agree or disagree with Righthaven’s motives, I believe I see where they’re going. Jerome Lemelson was perhaps the first patent troll, but definitely the first to reach $1 billion in personal fortune from his effort. My understanding is that he started by bringing actions against small companies that could not easily defend themselves and Japanese companies that didn’t understand U.S. patent law. These companies saw his royalty fees as small compared to the costs of hiring lawyers to study and defend the patent infringement suits he brought. After amassing a huge war chest, Lemelson went after bigger and bigger companies and sought bigger and bigger payments. The more capital he had, the easier it was to win these battles.

While Righthaven will probably never collect the multimillion dollar awards that Lemelson did, consider that nearly everyone in the world writes. There are thousands of novelists, thousands of journalists, thousands of researchers, and millions of bloggers. And copyright also applies to artists, filmmakers, and computer programmers. Righthaven, and companies like it, can potentially collect more than Lemelson even hoped for, and at less expense.

I believe that Righthaven and its business model should not be underestimated. The solution to protecting yourself is more complex than simply not copying. The exciting part is that this new business model will create new areas of legal effort and will require the best technology to allow the protection of both copyrights and free speech.

When using the RPG, an expert selects the type of case, type of report, types of technologies involved, types of tools used, and expert background profiles from a GUI. Then a Microsoft Word draft report is generated that includes all of the selected generic information intermixed with blank sections where case-specific information should be filled in manually.

Currently, many experts either dig through their prior works to find specific descriptions or write them from scratch each time. Maintaining a library of generic report elements is a challenge, especially when multiple experts are involved. RPG acts as a version control system between multiple experts who can upload and download detailed descriptions of experts, technologies, and tools from a central server. The reports are generated according to specific formats, so an entire team of experts can easily produce reports that are consistently formatted with the most up-to-date descriptions.

RPG also keeps synced descriptions of CodeSuite, so it can include the most up-to-date descriptions and pricing of the tools without having to search the S.A.F.E. website or CodeSuite help files.

If you’re interested in trying out RPG, contact our Sales Department.

The North Face didn’t get the joke. Their lawyers scheduled a deposition of Winkelmann’s father, James Winkelmann Sr. That didn’t go too well. It turns out that Winkelmann Sr. was once a partner at the St. Louis brokerage firm of HFI Securities where partner Don Weir Jr. pleaded guilty a year ago to charges he stole more than $10 million from clients (Winkelmann was never implicated in any wrongdoing).

I suggest you download the reply and the deposition when you want to have a good laugh at the expense of the legal system. The reply is pretty sarcastic and it’s not clear to me who it’s supposed to appeal to (except readers like us, but not necessarily the judge). The deposition reads like a Marx Brothers skit and is every bit as funny. Litigation has never been so much fun.