Microsoft’s Patent vs. IL Eavesdropping Statute

The PTO recently granted Microsoft patent 7,231,019. It covers a method and system of identifying callers by (1) capturing the acoustic properties of the caller’s voice, (2) creating an acoustic model of the caller’s voice, and (3) comparing that model to stored models of prior callers. It also compares the caller’s words with language models compiled for previous callers to assist in caller identification.

Illinois has a relatively strict eavesdropping statute. So, I wondered whether a person could violate the eavesdropping statute by using this system.

Microsoft’s system is capable of identifying a caller from a single utterance. The system is able to identify a caller “without alerting the caller to the identification process.” The patent claims the system is useful for, among other things,(1) “easily filter[ing] unwanted calls of telemarketers, for example, from desired calls from known callers,” and (2) efficiently routing calls at a large call center to the correct recipient or information database.

Eavesdrop Statute

The eavesdropping statute states, in part: A person commits eavesdropping when he: (1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . .unless he does so (A) with the consent of all of the parties to such conversation or electronic communication. . .” 720 ILCS 5/14-2 (2007). The statute defines eavesdropping device as “any device capable of being used to hear or record oral conversation. . .” Id. at 14-1. The statute defines “conversation” as “any oral communication . . . ” Id.

The eavesdropping statute covers more than just listening in on other people’s conversations. You can violate the eavesdropping statute if even one person to the conversation agrees to the recording, i.e. if the person participating in the conversation is doing the recording. Basically, you can’t record a phone conversation unless all other people on the line agree. Also a back-and-forth conversation is not necessary, one person speaking is enough under the statute because a conversation means any oral communication.

Microsoft’s System vs. Eavesdrop Statute

So if I’m using Microsoft’s system to filter unwanted calls of telemarketers without alerting the caller will I violate the eaves drop statute? It depends on whether the system is used “for the purpose of . . . recording … [the] conversation.” The system uses a computer to analyze the caller’s voice. In order for a computer to analyze a voice it must record the speakers voice into the temporary memory of the computer. Once in the computer’s temporary memory the system can analyze the caller’s voice, recognizing words and creating a acoustic profile. Therefore, the system makes a recording of the caller’s oral communication.

However, its not enough for the system to record a communication. The person using the system must use the system for the purpose of recording the communication. That’s a harder leap to make. When someone records a conversation, that usually implies the person can later play back the recording for themselves or others. Microsoft’s system does not seem to allow the user to playback the recorded caller’s voice. If the system also allowed the user to play back the caller’s voice then the user might run into problems under the eavesdropping statute.

If recording an unconsenting caller’s voice violates the statute doesn’t the use of an answering machine violate the eavesdropping statute? No, courts recognize callers implied consent to the recording when they leave a voice message. Here, however, Mircosoft’s patent claims to identify callers “without alerting the caller to the identification process.” Its unlikely that a caller can impliedly consent without knowing it.

Victory: Microsoft’s Patent

Absent a voice playback feature, the person using the caller identification system is likely not using the system for the purpose of recording the communication, but rather is using the system to identify the caller. As a result, he or she is likely safe from the reach of the eavesdrop statute.

Product Firms More Likely To Patent Than Service Firms

Business Professor John R. Allison, Economist Abe Dunn, and Law Professor Ronald J. Mann posted their article “Software Patents, Incumbents, and Entry” on SSRN. The article provides data showing that product based firms (e.g. Microsoft) are more likely to seek and obtain software patents than service based firms (e.g. EDS).

The article examined the relation between patents and different business models used by firms in the software industry. Part of the article analyzed firms’ pattern of patenting (how many patents the firms sought and received). The authors stated, “if the desire to build portfolios for defensive purposes were the main justification for patents in the industry . . . one would expect portfolios roughly proportionate to litigation exposure.” Id. 1594. They assert that a firm’s size is a reasonable proxy for its litigation exposure. Therefore, “if the defensive portfolio hypothesis is correct, patent portfolios would correlate closely with size, and there would not be a great deal of variation tied to other factors such as market sector or R&D intensity.”

However, the authors predicted the pattern of patenting would “depend not only on size, but also on [1] whether the firm focuses on selling products or services, [2] how devoted the firm is to R&D . . ., [3] whether the firm is primarily a software firm or a hardware/electronics firm, and [4] competitive issues in the specific sector of the software industry in which the firm is located.

The authors found that whether a firm sought and obtained patents depended, in part, on the extent to which the firm sold products as opposed to services. The data showed that “[a] firm that derives all its revenues from products . . . is expected to produce 230% more patents than a firm entirely devoted to providing services.” Id. at 1601. They found that the data did not show that some industry sectors merely relied more on products and some more on services, but rather the differences between patenting practices of products firms and services firms existed even within particular industry sectors.

The authors were not sure what caused this difference between products and services firms. The causes might be that (1) patents have a greater ability to protect innovation in products, (2) there is a “greater need to protect innovation that is disclosed through the distribution of products,” or (3) “a patenting culture in a firm’s early days . . . contribute[s] to its survival as a products firm.” Id. at 1063.

[Allison, John R., Dunn, Abe and Mann, Ronald J., “Software Patents, Incumbents, and Entry” . 85 Texas Law Review 1579 (June 2007) Available at SSRN: http://ssrn.com/abstract=989592]

PTO Wants More From Applicants

The New York Times reports that Jon Dudas, director of the United States Patent and Trademark Office, wants changes in the patent law that would require the applicants to conduct a thorough search of prior art, and provide a explanation why the patent being sought represents a significant innovation in the field.

Patenting Software Security Fixes

The Register reports on a company called Intellectual Weapons, which offers to patent fixes for newly discovered security vulnerabilities, weaknesses, or technical flaws in software. Then the company will seek to license the fixes to vendors of the vulnerable products and other security providers.

Intellectual Weapons describes their process:

  1. You submit vulnerabilities you have discovered, without telling anyone else.
  2. If we accept them, we work together to develop a fix.
  3. We develop intellectual property relating to the fix, and license or enforce it
  4. You share in the profits

The company acknowledges enforcement may be tough:

Enforcing the IP may not be straightforward-we fully anticipate major battles. . . .We only want people who dare to play for high stakes.

Now on the Web: IL Legislative Debates Back Through 1971

BookScanned text-searchable transcripts of the Illinois House and Senate floor debates going back to 1971 are now available on the legislature’s website. Before February 2007 the transcripts available online only went back to 1997. This is a significant development that will assist attorneys and other interested persons better understand the context that existed when a particular law was passed.

The Sixth Illinois Constitutional Convention held in 1969-70 drafted our current constitution. The legislature or some other institution should make available online the record of those proceedings, which are contained in seven volumes entitled “Record of Proceedings, Sixth Illinois Constitutional Convention.” A constitutional convention also drafted the 1870 Illinois Constitution. A record of those proceedings is available online here.

Copy Protected General Assembly Transcripts?

Here you can access transcripts of the Illinois House and Senate floor debates going back to 1997 1971 (change noted here). The transcripts are in PDF format. On occasion I include an excerpt from a transcript in my work. But I can’t copy and paste from the PDFs because they are set to prohibit copying. Check it out for yourself. Why is the copy function blocked on the PDF transcript files?

NoCopy_GenAssmTrans2

How to Proofread Perfectly

HeadphonesAnswer: Don’t read it… let the computer do it.

I find the best way to perfectly proofread a document, legal memo, or even an email is to have the computer read it back to me using a text-to-speech program while I follow along looking at the text. I currently use a free utility called “Ultra Hal Text-to-Speech Reader.” The voices in the reader are not the most human-like but it gets the job done.

ITConversations recently featured a talk by Kevin Lenzo who believes that the key speech technology is not speech recognition, but is text-to-speech (TTS). He presents “a long list of possible applications of TTS, including hands-free in-car navigation systems, location-based weather reporting, remote network monitoring, and just-in-time broadcasting.”

Jobs Says Apple Supports DRM-Free World

Wired reports on Steve Jobs’ Open Letter where he announces Apple supports a DRM-free music distribution model. Many, including Bill Gates, have stated that DRM does not stop piracy. And some have argued that Apple benefits from DRM because it locks users into only using iPods and iTune.

Jobs acknowledged “DRMs haven’t worked, and may never work, to halt music piracy.” But he does not believe users are locked into using music players from one company when they buy DRM music from that company’s online music store. He stated:

Today’s most popular iPod holds 1000 songs, and research tells us that the average iPod is nearly full. This means that only 22 out of 1000 songs, or under 3% of the music on the average iPod, is purchased from the iTunes store and protected with a DRM. The remaining 97% of the music is unprotected and playable on any player that can play the open formats. Its hard to believe that just 3% of the music on the average iPod is enough to lock users into buying only iPods in the future. And since 97% of the music on the average iPod was not purchased from the iTunes store, iPod users are clearly not locked into the iTunes store to acquire their music.

He points out that 90 percent of songs are sold on CDs that are not DRM protected. After asserting that DRM does not appear to be good for much. Jobs states:

If anything, the technical expertise and overhead required to create, operate and update a DRM system has limited the number of participants selling DRM protected music. If such requirements were removed, the music industry might experience an influx of new companies willing to invest in innovative new stores and players. This can only be seen as a positive by the music companies.

He concludes by asking those against DRM to focus on the convincing Universal, Sony BMG, Warner and EMI to license music without DRM.

Will this announcement move the marketplace towards a DRM-free model? Bill Gates criticized DRM, yet Microsoft’s new music player the Zune and the Zune Marketplace operate as a closed DRM protected system much like Apple’s iPod/iTunes combination.

The governments of Norway, Denmark, Sweden, France, Germany, Finland, and the Netherlands have “rebelled” in some form against Apple’s DRM system that prohibits users from playing a song downloaded from iTunes on a music player other than an iPod. It will be interesting to see if European authorities take Job’s invitation to “redirect their energies towards persuading the music companies to sell their music DRM-free.”

Broadband Breach

WifiCnet reports a spanish startup company called Whisher is trying to offer an easy way to share Wi-Fi Internet access. They hope that broadband consumers will share access to their connection with others via the consumer’s existing Wi-Fi router. If large numbers of broadband customers share their connection then a mesh Wi-Fi network will develop without municipal or commercial development.

The Cnet article stated the snag in this utopian view of free Wi-Fi for everyone is that “[i]n the U.S., it’s illegal.” Illegal? On July 8, 2005, Cnet ran an article titled “FAQ: Wi-Fi mooching and the law” indicating it is not clear whether or not sharing Wi-Fi is legal. The article stated, “It depends on the wording of your contract with your broadband provider.”

Law.com’s legal dictionary defines “illegal” as “1) adj. in violation of statute, regulation or ordinance, which may be criminal or merely not in conformity. . .”

If the contract with your broadband provider prohibits you from sharing the connection outside of your residence, then you would be in breach of the contract if you shared in that way. While you may be liable—meaning required to pay money to the provider—for violating the contract, it is not generally considered “illegal” to breach a contract. It would be illegal if a statute, regulation or ordinance prohibited you from sharing the connection outside of your home. I am not aware of any statute, regulation or ordinance specifically prohibiting such sharing (although one could exist).

Contract law does not seek to punish the breaching party but instead generally seeks to put the non-breaching party in the position he or she would have been in if the contract was performed without breach. Therefore a party breaking an private agreement (i.e. the one between you and the broadband provider) is treated much differently under the law than a party violating a statute, regulation or ordinance. The former conduct is considered breaching, while the latter is considered illegal.

It is important to use the right terms when discussing this topic. The term “illegal” implies the power of the State is used to prohibit conduct. It does not seem like this is the case when someone share’s their broadband connection. I am interested to know if there are any statutes that prohibit this sharing. In the absence of a statute or regulation, it seems that broadband sharing, at most, is a breach of contract—which still might cost you a lot of money.

Disclaimer: Nothing in this article is legal advice. You should not rely on this article in deciding whether to share your Internet connection. If you have questions about whether to share your broadband connection you should consult your contract with your service provider. If that does not resolve the question you should contact an attorney.

The Sealand Fantasy

Pirate Bay SealandA number of sites reported [Gizmodo, Slashdot, Glading, Techbuzz, Wired, Ars Technica] Pirate Bay’s announcement that it wants to buy its own island nation to avoid those pesky copyright laws. Pirate Bay started a donation drive to purchase the man-made island called Sealand. Ars Technica‘s article provides the most detailed coverage of the situation. The island is a “World War II-era British naval platform sitting in the sea off the coast of Harwich in southern England.” Sealand has a website explaining its history. The site states:

Sealand was founded on the principle that any group of people dissatisfied with the oppressive laws and restrictions of existing nation states may declare independence in any place not claimed to be under the jurisdiction of another sovereign entity. The location chosen was Roughs Tower, an island fortress created in World War II by Britain and subsequently abandoned to the jurisdiction of the High Seas. The independence of Sealand was upheld in a 1968 British court decision where the judge held that Roughs Tower stood in international waters and did not fall under the legal jurisdiction of the United Kingdom.

Torrent Freak provides a list of alternative island nations that might work if the deal with Sealand doesn’t fly.

It seems that a company called Havenco is already (or has in the past) providing webhosting from Sealand. Havenco states “HavenCo provides a place for secure e-Commerce, privacy-protected Internet services and uncensorable free speech.” Uncensorable free speech? This is the same type of argument that Yahoo made in 2000 to a French Court. There, the French court ordered Yahoo to block Nazi goods from appearing for sale on web pages in France. Yahoo’s servers were not in France. But as Tim Wu explained in a Legal Affairs article, the plaintiff showed that Yahoo could identify and screen users by geography. Yahoo eventually complied because it had assets in France that were at risk of seizure.

Whether its HavenCo or Pirate Bay operating on Sealand or some other micronation, it is doubtful that a rouge company can escape influence of “U.S. content owners.” Pirate Bay needs internet access, right? Otherwise only those people that fly in and live on the island can partake of the content on Pirate Bay’s servers. Looking at the Sealand platform, I’m not sure people will be beating down their door to live there. Plus the platform’s size means only a limited number of people could fit on it. So, Pirate Bay will need a company in some other nation to provide a connection to the internet. The connection could possibly come from England because England is close to Sealand.

Yesterday, Market Watch reported the International Federation of the Phonographic Industries (IFPI) — which represents the recording industry worldwide — “threatened to take legal action against Internet Service Providers if they failed to take action against users who illegally upload and download music.” The IFPI Chairman John Kennedy said:

That job (of prosecuting file-sharers) shouldn’t be ours – it should be done by the gatekeepers of the Web, the Internet Service Providers, who unquestionably have the technical means to deal with copyright infringement if only they would take responsibility for doing so.

Here, if Pirate Bay comes up with the funds to purchase an island nation, the IFPI is going to sue whoever is providing Pirate Bay with internet access. If the ISP is in the UK, the IFPI might sue them in the UK courts. The IFPI might bring a claim before the WTO. The IFPI might employ diplomatic pressure of other nations to force the nation where the ISP is located to shut down the connection.

According to HavenCo “Sealand currently has no specific regulations regarding patents, libel, restrictions on political speech, cryptography, restrictions on maintaining customer records, DMCA or music sharing services.” But as the Yahoo case shows, that may not matter. Even Bill Gates criticized DRM, but unless you want to live on Pirate Bay’s island, the pirate’s treasure is probably not going to be accessible to you via the internet from treasure island for long.