Stuxnet - Malware That James Bond Would Be Proud Of?

UPDATE September 30, 2010:  Further to the story below, the New York Times reports that experts deconstructing the Stuxnet virus have found a file named "Myrtus", which is supposedly the Hebrew word for Esther's name (Hadassah) before she was selected as queen.  Esther is a book in the Hebrew Bible (Old Testament) in which a plot by the leaders of Persia (now known as Iran) to destroy the Jews is foiled by Esther, which then allowed the Jews to kill about 75,000 Persians in reprisal.  The naming of this file could be signficant as a calling card or could just be an attempt to shift blame (or could just be the name of someone's mother or cat). 

This sounds more and more like Tom Clancy is making this up.

ORIGINAL POST:  As our many readers will surely recall, this blog was all over the Stuxnet story when it broke a few months ago.  For those that don't remember, Stuxnet is a malware that targets commercial systems (primarily power plants) by attacking a vulnerability in a Siemen's system using a particular Microsoft operating system.  It was originally thought to be delivered via a USB thumb drive but experts now say it is in the wild and can be delivered in different ways.  Also, it was originally thought to be used just to copy plans for the power plants but now it is surmised that it could be used to sabotage such plants.  Experts that have now broken the code for the malware see a sophistication, knowledge and complexity that is not commonly available to any one or more non-affiliated hackers.  This has lead the same experts to speculate (emphasis on the speculative nature as there is no hard evidence, yet) that this was probably the actions of a nation state.

Experts to whom this blog has spoken have stated that because Stuxnet was first discovered in Iran and most of the activity is still in Iran and specifically at one of their nuclear power plants (one that has been mysteriously delayed in coming on line), it probably came from one of the nations not particularly happy about Iran having nuclear power.  Likely suspects are (you guessed it) the CIA or maybe even Mossad.

Of course, nobody really knows and maybe never will.  However, the lesson to be learned from this is that malware (whether state sponsored or otherwise) is rapidly becoming more sophisticated and could pose much greater risks in the future.

Cue the 007 music.

Copyrights in the Fashion Industry, Hot or Not?

New York Fashion Week Fall 2007: Doo Ri

As of late, the issue of Copyright in the fashion industry has been increasingly in the news. With the recent proposal of "new" copyright laws by New York Senator Charles Schumer, the decision of whether or not to provide broad copyright protection to fashion designers is being revisited. The issue was most famously approached, when in the 1930's the "Fashion Originators' Guild" started a cartel requiring all retailers to purchase from the Guild. If retailer sold a knock-off they would receive a "Red Card" restricting other Guild members from selling to that retailer. The Guild was broken up by the federal government, but that didn't keep certain members from attempting to change federal copyright law to put their oligopoly back in place. They failed.

Many attempts were made afterwards, and in 1998 a significant change was made - the Vessel Hull Design Protection Act was enacted. The what? Just bear with me. This act was passed by Congress to protect the designers of the hulls of boats. Hulls are expensive to make, involve safety issues, and were found to be worthy of copyright protection. However, when drafted the Act's language appears to be an attempt to protect "original designs of a useful article" but the definition of "useful article" was limited to the hulls of boats. The proposed bill by New York Sen. Schumer (NY seems to make more sense when you think of where all the designers reside), just includes "Fashion Design" as a definition to "useful article," incorporating a broader range of protection to designers. 

Intellectual property rights (copyrights, trademarks, and design patents) are, and have been afforded to the designers of fashion. However, designers are pushing for more protection over the goods they produce. Currently, a copyright protection applies "only if, and only to the extent that, such design incorporates pictoral, graphic, or sculptural features that can be identities separately from, and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C Section 101 (under "Pictoral, Graphic or Sculptural Work"). A good example of this would be a famous painting printed on a shirt. The painting will be protected on it's own, whether or not the painting is used on its own, a shirt, a jacket, or as wallpaper. This restricts most general designs from receiving copyright protection. Trademarks provide a protection to the goods in such a way that will tell the customer from whom they originated. This either comes in the way of a brand name tag or logo attached to the article of clothing, or by a design that is so unique that the consumer knows it was developed by a certain creator (think Adidas and the three stripes along the sleeves of their apparel). Design Patents are used in certain areas of creation, but cause great difficulty for a designer. The technical requirements needed to obtain a design patent, which include non-obviousness and novelty, are difficult to meet, not to mention the cost and the time. If the user can afford the patent, the time spent often in the process ends up being several months to years causing the designer to miss out on the trend.

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License or Sale? Vernor v. Autodesk

On September 10, the Ninth Circuit Court of Appeals in Seattle decided a case styled Vernor vs. Autodesk, Inc. No. 09-35969 (D.C. No. 2:07-cv-01189-RAJ). A copy of the decision may be reviewed here.
Lining up on one side of this dispute were software developers and lovers of copyright protection. One the other side you have libraries, eBay, reseller of used books, video games, CDs, DVDs, etc.
The decision held that if a copyrighted work was distributed under a license, as opposed to being sold, then the licensee or any subsequent possessor of the copyrighted work could not use the “first sale doctrine” or the “essential use doctrine” as a defense to an action for copyright infringement.
Commenters who opt for the position taken by the resellers and eBay have roundly decried this decision, calling it “a major blow to user rights” by the use of “magic words” . Others have called it the “right decision for the wrong reason” and “an apparent gutting of the so-called first sale doctrine”.
The facts of the case are as follows:
Autodesk licensed copies of its AutoCAD software Release 14 version to its customer Cardwell/Thomas & Associates, Inc. (“CTA”). The licenses were part of a settlement of a claim by Autodesk of unauthorized use by CTA. CTA later upgraded to Release 15 for a substantially discounted price. The license governing Release 14 required destruction of copies of upgraded versions of the software with proof of destruction to be furnished to Autodesk upon request. Instead of destroying the copies, CTA (perhaps in the payback mode?) sold them at an office sale along with the handwritten activation codes necessary to use the software. Mr. Vernor, the plaintiff in the instant suit bought several copies of the software from CTA. Mr. Vernor is an eBay power seller and promptly began marketing the software on eBay. In a series of instances, Autodesk filed a DMCA take down notice and eBay canceled the auctions. Vernor filed counter-notices and Autodesk didn’t respond in any instance. The sales went forward. After about four of these DMCA dances, eBay suspended Mr. Vernor’s account because of the repeated claims of infringement. Mr. Vernor had previously sold over 10,000 items on eBay and because of the suspension of his account, he was unable to sell on eBay for over a month.
Mr. Vernor, violating the “let sleeping dogs lie” maxim, filed a suit for declaratory judgment in 2007 asking that the court declare that he was protected under the “first sale” doctrine. Autodesk moved for summary judgment and the district court denied the motion and found that Vernor’s sales were non-infringing because of the first sale doctrine and the essential step defense. Vernor v. Autodesk, Inc., 555 F. Supp. 2d 1164, 1170-71, 1175 (W.D. Wash. 2008). Autodesk appealed from that decision.
The first sale doctrine is an affirmative defense to copyright infringement that allows owners (significant distinction under this case) of copies of copyrighted works to resell those copies. Hence, the ability to resell used books.
The essential step defense is also an affirmative defense in the software arena that states that if copying of a software element is necessary (i.e. an “essential step”) in the use of the software (such as copying a program to a computer’s RAM upon loading), then that copying is not an infringement.


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Texas Attorney General Investigates Google's Alleged Anti-Trust Activity

On September 3, Search Engine Land reported, and Google confirmed that the Texas Attorney General, Greg Abbott, inquired about and is currently investigating potential anti-trust activity by Google. It was reported Greg Abbott's office declined to answer any questions, and now everyone is just speculating on what the outcome will be. Well, I'm no better. 

This is not the first anti-trust inquiry Google has faced, and it likely won't be the last. According to Experian Hitwise, Google accounts for 71% of searches in the United States, and it's no surprise to anyone when you've got that kind of market share, you've got a lot of bulls-eyes on your back, as well as a lot of government officials making sure you don't go all anti-trusty on the rest of the market. Google has been in this position for sometime, and I'm sure I'm missing a few, but here are some of the Google antitrust highlights over the last few years:

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The Software Patent Lawsuit to End .....Software Patents?

Recently, Paul Allen (co-founder of Microsoft and worth roughly the GDP of Jamaica) filed a patent infringement lawsuit against most of Silicon Valley.  The Defendant's list reads like a who's who of modern technology giants:  Apple, Google, Facebook, eBay, AOL, Netflix, Yahoo, Office Depot, Office Max, Staples, You Tube (not listed: Microsoft).

The patents at issue extend back to the late 90s when Allen's now defunct company, Interval Research, was granted a number of patents dealing with e-commerce and search process.  In fact, it was so long ago that Google wasn't even in existence when some of the patents were applied for. This is obviously a big deal for Silicon Valley companies as they struggle to work within the current patent system.  The sheer number of defendants and the issues at stake has lead some to surmise that this could be the tipping point for software patents as a whole.  Earlier this year, many were guessing/hoping that software patents would finally be invalidated in by the Supreme Court in the recent case, In Re Bilski, but that didn't happen.  Obviously, an entire industry cannot constantly be fighting out their innovations in the court room because in the long run, it only ends up hurting consumers and stifling progress.  So we'll see if this is actually a turning point in our current patent system or just another addition to our patent thicket.  Stay tuned. 

HTML5 Video - Oh the possibilities!

Normally, we here at ATLB try and bring you legal issues relevant to the Austin tech world, but I recently stumbled across and my first interactive, multi-window HTML5 video, and despite the lack of legal issues, I had an overwhelming desire to share it. Showcased as a "Chrome Experience,"  Google and Chris Milk teamed up with the band Arcade Fire to produce an extremely creative music video to the song, "We used to wait" (a great track). The site, The Wilderness Downtown, provides a look into the future of not just music videos, but a videos across the board. An interactive multi-window experience allows the user to connect with the music, the story of the video, and provides some serious nostalgia for someone who hasn't been home in awhile (my then teary-eyed girlfriend can attest to that). 

I look forward to the next generation of videos and the creative music and film directors that will no doubt utilize this new format. I can already hear myself 6 months from now, "I can't believe I was so amazed by that Arcade Fire video."