MySpace partners with NBC, MSNBC for political convention contest

Two winners will be joint MySpace-MSNBC "journalists" at the major parties' conventions.

First Official Podcast

We are pleased to post the first official podcast from the VeraSage Institute. Please note that it takes a few minutes to download.

In this podcast, which runs a little over 12 minutes, Ron Baker and Ed Kless conduct a dialogue about the basics of Pricing on Purpose (aka Value Pricing). It is our hope that this will be the first of many, but we need your help. Please give this a listen and provide us with any feedback via either comments to this post or email.

Once we have three podcasts released, we plan to submit them to iTunes so that you will be able to manage them more easily.

Anonymous defendants to be unmasked in Computer Fraud and Abuse Act case

Kimberlite Corp. v. Does 1-20, No. 08-2147, 2008 WL 2264485 (N.D. Cal. June 2, 2008)

Plaintiff Kimberlite sued a number of anonymous John Doe defendants after it learned that its network and email system had been unlawfully accessed. A few days after filing suit for violation of the Computer Fraud and Abuse Act (CFAA) and trespass to chattels under state law, Kimberlite served a subpoena on AT&T, the owner of the IP address from which the unauthorized access originated, seeking to discover who was responsible.

One of the John Doe defendants, pro se, wrote a letter to the court which the court treated as a motion to quash the subpoena. The court denied the motion.

Doe argued that Kimberlite had failed to state a claim under the CFAA. The court rejected that argument, observing that Kimberlite had adequately alleged and had provided preliminary evidence of a CFAA violation. (Doe had not challenged the sufficiency of the trespass to chattels claim.) Kimberlite’s computers were “protected” computers under the CFAA because they were used in interstate and foreign commerce. They were password protected and accessed without authorization by someone from the subject IP address. Kimberlite succeeded in alleging the threshold amount of CFAA damages ($5,000) through an employee declaration describing over 100 hours of investigation and repair following the intrusions.

Doe also argued that Kimberlite had not demonstrated a need to obtain the information that outweighed Doe’s privacy rights under the Cable Communication Policy Act (CCPA). That act prohibits cable operators from disclosing subscriber information unless certain criteria are met.

The court rejected the CCPA argument first by expressing serious doubt that AT&T, as an Internet service provider was a “cable operator” and thus subject to the CCPA. Even if the CCPA did apply, the court found Kimberlite had demonstrated a compelling need for the information sought. It had adequately set forth a cause of action, so discovery of the anonymous parties was proper.

The Ramones and Wal-MartThe Patry Copyright Blog

One might not readily think of pairing the Ramones and Wal-Mart, but they were in Richard Reinhardt (p/k/a Richie Ramone and Richie Beau), Plaintiff, v. Wal-Mart stores, Inc., Apple, Inc., Realnetworks, Inc., Estate of John Cummings (a/k/a John Ramone and Johnny Ramone), Taco Tunes, Inc ., Ramones Productions, Inc., Herzog & Strauss, and IRA Herzog, Defendants, reported at 2008 WL 1781232, No. 07 Civ. 8233 (S.D.N.Y. April 18, 2008(Scheindlin, J.). (Here is a link to a picture of my Chuck Taylor hi-tops Ramones kicks).


Drummer Richard Reinhardt was a member of the Ramones from 1983 to 1987. During that time he was the sole author of Smash You, Somebody Put Something in My Drink, Human Kind, I'm Not Jesus, I Know Better Now, and (You) Can't Say Anything Nice (the “Compositions”). In 1984, Reinhardt entered into a recording agreement with Ramones Productions to “exploit” the intellectual property, merchandise, and other products associated with the Ramones. The Agreement granted Ramones Productions the limited right to “create physical sound recordings embodying the Compositions,” with royalty payments to be made to Reinhardt.

Reinhardt alleged that the Defendants have infringed his copyright by exceeding the scope of their license. The Defendants were accused of offering Reinhardt’s works for sale via downloads and in other digital media. The case was resolved by contract interpretation: did the Recording Agreement authorize such uses? As noted by the Court:

In pertinent part, section 5(a) of the Recording Agreement authorizes Ramones Productions “to manufacture, advertise, sell, distribute, lease, license or otherwise use or dispose of the Masters and phonograph records embodying the Masters, in any or all fields of use, by any method now or hereafter known.”

The Recording Agreement also provides that “ ‘Records,’ ‘phonograph records,’ ‘recordings,’ and ‘derivatives' means all forms of reproduction including pre-recorded tapes and discs and electronic video recordings, now or hereafter known, manufactured or sold primarily for home use, school use, juke box use or use on means of transportation....” “Master” however, is specifically defined as “the equivalent of a 7 inch, 45 rpm, single-sided recording embodying the recorded performances by the Ramones.”

This language is clear and unambiguous and conveys a definite meaning. The contractual language defining “phonograph records,” when read together with the provisions of section 5(a), clearly authorizes the digital uses employed by Defendants. The phrase “now or hereafter known,” when referring to forms of reproduction, reveals that future technologies are covered by the agreement. This language creates an expansive rather than a restrictive conveyance of rights. It is not reasonable to construe the phrase “all forms” “now or hereafter known” to exclude Defendants' alleged digital download form, which now constitutes a form of reproduction. This unambiguous language forecloses other interpretations and the need to consider extrinsic evidence.

In 1984, CDs were around, but not digital downloads, and the Court could have taken a restrictive interpretation of the contract as referring to methods of manufacture later developed and held that digital downloads were not a form of manufacture, but it didn’t. Hey ho, let’s go.

My new "Alan Reiter's Wireless Web World" on CMP's "Internet Evolution" mobile site

I just began writing a wireless Internet weblog designed to be read on mobile devices for CMP’s “Internet Evolution” mobile site (see below).

I’ll be writing about all types of wireless Internet products and services, as the first weblog article describes.  Because the articles are designed for reading on cellular phones and other wireless-enabled portable devices, the entries are 200 words max.  And, I’ll try to keep the sentences and paragraphs short.

I’ve contracted to write a maximum of three entries per week.  But every so often I’ll write shorter articles to supplement the three “longer” entries….because that’s just the sort of guy I am.

If you read the articles, please let me know via e-mail (reiter@wirelessinternet.com) what you’d like to read (or not read).

I’m also continuing to write my longer, 600–word, weekly column about wireless Internet for CMP’s “Thinkernet” section on “Internet Evolution.