TSA Pat-Down Procedure

From the TSA Blog:

It should be mentioned that you will not be asked to and you should not remove clothing (other than shoes, coats and jackets) at a TSA checkpoint. If you’re asked to remove your clothing, you should ask for a supervisor or manager.

Of course you should not be removing your clothing because there’s an app for that.

tax Technology

California Seeks Amazon Tax (ABX8 8)

Following in the footsteps of New York, California seeks to imposed its own version of the Amazon tax. Specifically, ABX8 8 seeks to amend Section 6203 of the Revenue and Taxation Code, which covers the collection of sales tax in the State of California.

(5) (A) Any retailer entering into an agreement or agreements under which a person or persons in this state, for a commission or other consideration, directly or indirectly refers potential purchasers of tangible personal property to the retailer, whether by a link or an Internet Web site or otherwise, provided that the total cumulative sales price from all of the retailer’s sales of tangible personal property to purchasers in this state that are referred pursuant to all of those agreements with a person or persons in this state, within the preceding 12 months, is in excess of ten thousand dollars ($10,000).

Here’s the bill analysis:

Expanded sales tax nexus . A contentious issue in sales and use tax administration relates to the extent to which a state may compel an out-of-state retailer to collect use taxes from its in-state customers. The issue is of considerable importance because, although Californians are required to self-report out-of-state purchases for use in this state, the compliance rate is very low.

In general, an out-of-state retailer must have sufficient business presence in the State (also known as “nexus”) in order to be required to collect and remit the tax. Under current law, a retailer is considered “engaged in business in this state” and required to collect the California use tax on sales made to California consumers when it maintains storage or warehousing facilities in the state or it has a representative or independent contractor operating in this state for the purpose of selling, delivering, installing, assembling, or the taking of orders for the tangible personal property.

Current Board of Equalization regulations specify that the use of a computer server on the Internet to create or maintain a web page or site by an out-of-state retailer is not considered a factor in determining whether the retailer has a substantial nexus with California. The regulations further state that an Internet service provider or other Internet access service provider, or World Wide Web hosting services shall not be deemed the agent or representative of any out-of-state retailer as a result of the service provider maintaining or taking orders via a web page or site on a computer server that is physically located in this state.

This bill provides that the term “retailer engaged in business in this state” includes any retailer that enters into an agreement with a California business or other entity under which the California entity, for a commission or other consideration that depends on actual sales, directly or indirectly refers potential customers of tangible personal property to the retailer. The referral can be by a link or anInternet Web site, or some other means, provided that the cumulative sales price from sales by the retailer to customers in California who are referred pursuant to these agreements exceeds $10,000 during the preceding 12 months.

The measure does not apply to advertising on television, radio, in print, on the Internet, or any other medium, unless the payment for advertising consists of a commission or other consideration that is based on sales of tangible personal property. Thus, banners and “click-throughs” on internet sites, such as Google, which are based on models other than sales commissions for referrals, would not create nexus with California. However, the bill could apply to out-of-state sellers using California-based marketplace sites, such as e-Bay.

The bill is based on legislation enacted in the state of New York in 2008. That law has been challenged on Constitutional grounds, but the challenges were dismissed at the trial court level. Currently, three states (New York, North Carolina, and Rhode Island) have enacted laws requiring remote sellers using on-line affiliates to collect use taxes, and lawmakers in several other states have introduced similar legislation.

I’m not sure about the part about Google though since they do have an affiliate network.


Google Killed Privacy

Privacy is dead. We have hit some inflection point where a car with a roof-mounted camera that voraciously records everything in its path is normal.


Think for a minute which scenario will attract the most suspicion: someone discretely taking photos of a sensitive location by hand or another person driving around in a car automatically capturing images of all people, buildings and roadways along its path. If someone really wanted to spy on us, I suspect they would brazenly conduct their surveillance in the open in one of those “Don’t be evil” camera-mobiles.


Text Message Prices

Recently, the Antitrust, Competition Policy and Consumer Rights Subcommitee examined the state of competition in the cell phone industry.

Senator Kohl stated that “[f]rom 2006 to 2008, the price of sending and receiving a text message among the four largest cell phone carriers increased by 100% from 10 to 20 cents per message” even though “the cost to the phone companies to carry text messages is minimal, estimated to be less than a penny per message, and has not increased.”

Here’s the funny part. Verizon and AT&T argued that the price increases only affect a small percentage of subscribers because most people purchase a text message package instead of paying a la carte. Actually, the price increases affect all subscribers because if the carriers charged 2 cents instead of 20 cents per message, then most subscribers probably would not purchase a package. Or, in the alternative, text message packages would be significantly cheaper.

legal marketing Technology

Law Blogs Without RSS Feeds

Every once in a while, I’ll come across a law blog that does not have an RSS feed. The problem isn’t that their blog software doesn’t support RSS feeds. Instead, these bloggers have gone out of their way to disable their feed. I don’t get it.

The entire point of blogging, I thought, was to share your thoughts and perspectives with your readers in a manner that is convenient for them. Let your readers subscribe to your blog with whatever application they want. Seriously, I am too busy to manually keep track of blogs without feeds. However, if a blog that interests me offers a fed, I often end up visiting the blog multiple times during the day, especially if the blog authors are particularly active.


County Advises to Disable Pop-Up Blocker

I’m came across a website for a county this afternoon. At first, I tried to click on some of the links in the navigation, but that didn’t work. Then, I noticed the the warning at the bottom of the page:

Some links on this web page/site will be blocked if you have a “pop-up blocker” running on your computer. You will need to “Allow Blocked Content”, or make www.*****.org a “trusted site”.

C’mon. Why not just open the link in the existing window instead of forcing the user to open a new window? After all, this is pretty much the way the rest of the Internet works, except for those site that created a need to install a pop-up blocker in the first place. Then again, we don’t install pop-up blockers any more since Internet Explorer, Firefox and Safari all ship with pop-up blockers built-in nowadays. Don’t fight the trend. Pop-up blockers are in place for a reason. Most people probably will not have noticed the pop-up blocker note and have thought your website was broken.


Pennsylvania Flunks SATs

The Philadelphia Inquirer: Pennsylvania Takes on Online Auctions. Mary Jo Pletz was really, really good at eBay. But now the former stay-at-home mother and gonzo Internet retailer fears a maximum $10 million fine for selling 10,000 toys, antiques, videos, sports memorabilia, books, tools and infant clothes on eBay without an auctioneer’s license.

Why is Pennsylvania seeking to compel eBay sellers to obtain an auctioneer license? Aren’t there any college graduates running the bureaucracy? After all, a basic SAT question would be Pletz:eBay::

  1. Cheney:Bush
  2. Leona Helmsley:Christie’s
  3. Auctioneer:Seller
  4. Dogs:Cats
  5. Chicken:Egg

And the Commonwealth flunked this question. Pletz isn’t the auctioneer. eBay is the auctioneer. Just like when the Estate of Leona Helmsley unloaded her property, Christie’s was the auctioneer. You don’t see the State of New York asking the Estate of Leona Helmsley to take out an auctioneer license, do you? Some other type of license may be more appropriate for Ms. Pletz, but it ain’t an auctioneer license, online or otherwise.


Facebook Linkbait

The Lawyers Weekly will be warning law firms about the dangers of Facebook. Will be? Yes, the article is dated January 25, 2008, or two days from today. Nifty time travel trick aside, the article is great linkbait because Kevin O’Keefe commented on it, and I feel the need to chime in as well.

Written by an electronic discovery expert, the article warns about the supposed perils of Facebook. True, Facebook users face some risk that their private data may be exposed to “fraudsters and corporate spies.” However, Facebook users can control what information appears on Facebook as well as who has access to it. In contrast, all the major credit reporting bureaus possess far more sensitive information in their databases, and you cannot easily correct or remove data that you want to keep out of the hands of third parties. I’m 100x more worried about a credit reporting bureau losing a data tape or a laptop with confidential information than someone hacking Facebook and downloading profile data. This is self-reported profile data and, as we should all know by now, you can’t believe everything you read online.

Also, the author presents a false dichotomy where social networking applications only have a non-work-related purpose. Sure, corporations and law firms should rightfully be concerned that their employees are wasting company time visiting blogs and other social networking sites for their own personal purposes. However, I am increasingly discovering that for long-tail searches, most of my results come from blogs instead of mainstream media sites. Nowadays, whenever someone encounters a problem, they blog about it instead of seething silently. And, when you are lucky, they also tell you about the solution they discovered. Ban Web 2.0 applications and you lose a lot of collective knowledge. Reminds me of this incident from the not too distant past.

intellectual property Technology

Top 10 Ways Not to Sue Google

Mishak v. Google, Inc. et al. is quite a head-scratcher. I found the complaint on the Justia Federal District Court Filings and Dockets website. Unfortunately, the complaint was a scanned and split into three parts. Breaks the flow when you have to hop around. I pieced the complaint together and OCR’d it. Here it is.. (PDF – 15.3MB) The high (or low) lights:

  1. Search Engines. Plaintiff sued a long list of defendants, which allegedly operate various Internet “search engines.” Of course, the Plaintiff sued the big three: Google, Microsoft and Yahoo. What do they say on informercials? But, that’s not all? Plaintiff also sued Excite (which I last used in the 1990s), as well as AltaVista (ditto). Then it got weird. Craigslist? Earthlink?
  2. Banner Ads. “All Defendants … sell advertising space on the [s]earch result pages known as Banner Ads.” Google does banner ads? I haven’t punched the monkey on Google yet. Advertising (of any kind) on Craigslist? Gasp!
  3. Copyright or Trademark. “Plaintiff has a copyright. (Exhibit 1). trademark. [sic]” Exhibit 1 is a certificate of registration with the United States Copyright Office for HTML web pages entitled “I Need a TV.” I thought this was supposed to be a trademark claim.
  4. Weak Trademark. “Plaintiff contends that in utter disregard to [Plaintiff]’s intellectual rights, Defendants have sold ‘keywords’ identical to certain of [Plaintiff]’s trademarsk to various third parties and have deliberately manipulated Defendant’s search engine “results” so that, when consumers use these search engines to find [Plaintiff]’s products and services, the consumers are unwittingly diverted to competitors’ products and services.” So, what exactly is Plaintiff’s trademark? “I Need A TV.” See the problem? Weak trademark with generic terms.
  5. Best Buy Beware. “MISHAK d.b.a. INEEDATV.COM is one of the largest direct-to-consumer retailer of custom order televisions, appliances, and personal property in the United States and on the Internet.” Now I want to see the sales figures to back up that statement!
  6. Money Quote. “The dollar amount of sales in the United States of MISHAK’s televisions, commercial and home appliances products and related services under the MISHAK Marks offered for sale and sold under the MISHAK Marks since the original adoption and use are well in excess of many tens of thousands with reasonable growth projecti ons into the tens of millions of dollars.” Many tens of thousands? Considering that consumers are looking to spend about $1,000 on a television nowadays, that means that Plaintiff sold tens of televisions. One of the largest retailers? Not likely.
  7. Keyword Advertising. “Google et al. refuses … to cease selling other keywords comprised, in whole or in part, of the MISHAK Marks….” Somehow, I don’t think Google is going to ban companies from buying advertisements for the keyword TV even if it is in the Plaintiff’s service mark.
  8. Fill in the Blanks. “For example, Google and the other listed defendants continues to sell to MISHAK’s competitors the keywords ….. Accordingly, if a consumer using Google’s et al.’s search engine types ‘…..’ in the search window, competitors who have purchase ‘…..’ or even just ‘…..’ can still appear at the top or in the margins of the results page.” No, I didn’t redact the search terms above. The blanks exist in the original complaint. Really. Fails to state a claim?
  9. Metatags. In metatag / trademark cases, plaintiffs usually sue the parties who have used plaintiff’s trademarks in their metatags. Plaintiffs usually don’t sue the search engines for returning results based on potentially infringing keywords found within a third parties’ metatags.
  10. More Fill In the Blanks. “The Defendants’ search engines are designed and intended to divert and lure consumers from the websites that they intend to visit – e.g., the MISHAK websites – to other websites owned by competing advertisers such as ‘…..'” Damn fill in the blanks. I really want to know who are the competing advertisers. I’ll have to wait for the amended complaint.
  11. More Fill In the Blanks. “The Defendants’ search engines are designed and intended to divert and lure consumers from the websites that they intend to visit – e.g., the MISHAK websites – to other websites owned by competing advertisers such as ‘…..'” Damn fill in the blanks. I really want to know who are the competing advertisers. I’ll have to wait for the amended complaint.
  12. Alta la Vista, Baby! Exhibit 2 shows search results for the search term “I Need a TV” from January 8-14, 2006. And, Plaintiff finally filed suit on December 20, 2007? What’s up with the two-year delay? Also, the complaint primarily appears to target Google, but the search results are from AltaVista. Actually, Exhibit 2 is split into two parts. The first section shows the sponsored matches (i.e., ads) that appear when someone searches AltaVista for the term “I Need A TV.” Because AltaVista bolds the text in the ads that match the search query, you can see that the only matching word is TV. The next section is the same query “I Need A TV” with the modifier “” This search will return matches for “I Need A TV” at the website AVS Forum is a discussion and review forum for home theater products. So, AltaVista returned results showing the following matching discussion threads: “Need a TV with 2 DVI inputs,” “Does MCE need a TV tuner card to run?” and “Need a tv for family room going over a fireplace.” I think this is the smoking gun. 😉
  13. Missing Home Page. “Plaintiff has been careful, skillful and meticulous in the conduct of their television, home and commercial appliances and related services under the MISHAK Marks. Included herein as Exhibit 3 is a copy of Plaintiff’s Home Page.” I couldn’t find Exhibit 3 in the electronic filing. I really wanted to what the Plaintiff had attached because when I visited the Plaintiff’s website, I saw this:


P.S. I learned this from Guy. Call it a Top 10 list even if I have 13 items.


Top 10 Funniest Lines from the Latest Apple Lawsuit

  1. “Unlike most Internet sites, Music Store is accessed with proprietary Apple software, rather than a Web browser.”

    Talk about a meaningless distinction. Safari is proprietary Apple software. Internet Explorer is proprietary Microsoft software. Go Firefox?

  2. “The ‘Online Music market’ is defined as the market for digital music delivered to the consumer by way of Internet download.” “Apple has an approximately 83% market share of the Online Music market.”

    If Apple truly had an 83% market share of the Online Music market, the RIAA wouldn’t have to run around the country suing people who upload and download music via peer-to-peer networks. In reality, if Apple had an 83% market share of the paid music download services market, that would only translate to about 10% of the Online Music market if you accept the plaintiff’s definitions. Apple’s market share would fall even further if you count online purchases of music that gets shipped via CD.

  3. “Online Music also promises superior audio fidelity over time, because unlike CDs, Online Music lasts indefinitely and cannot wear out or break.”

    If that was true, then the “Back Up to Disc…” command on iTunes is superfluous. Unlike subscription-based music services where the digital music files sit on someone else’s servers, iTunes requires you to download your music purchases to your hard drive, which can wear out or break. Gasp! I don’t know what Online Music promises, but it absolutely cannot deliver superior audio fidelity over time compared to a CD unless the retailers start selling digital music in a lossless format. If you purchase online music downloads, you are basically stuck with the original encoding. However, if I have a CD, I can always re-rip the files 5 or 10 years down the line (provided optical drives still exist then), if a better compression algorithm is available. You get superior audio fidelity over time with the CD, not the online music download.

  4. “Just as with Online Music, the variety, reliability, convenience, and environmental friendliness of Online Video make it superior to DVDs purchased from traditional retail outlets.”

    Does buying videos online slow down global warming? I’ve never heard of people buying videos through ITunes for environmental reasons. This is a first. Also, while the iTunes Music Store is great, there’s simply no way that downloaded videos are superior to DVDs. Try lending a downloaded video to a friend. Nice try.

  5. “While a traditional CD can hold no more than 15 to 25 songs, Digital Music Players, by playing music that has been compressed into small digital files, can store from 150 to more than 20,000 songs.”

    Another apples-to-oranges comparison. The plaintiff isn’t really comparing CDs to Digital Music Players, but AIFF to MP3s. The traditional CD can hold a lot more than 25 songs if you compress them (just like on the Digital Music Player).

  6. “[I]n order to play music from Apple’s Music Store, the dominant Online Music retailer, the consumer’s only option in the Digital Music Player market is Apple’s iPod.”

    That’s not true since the consumer can burn the music from Apple’s Music Store onto a CD, and re-rip it into another format compatible with a different Digital Music Player.

  7. “Conversely, Apple also makes the iPod unable to play music sold at its rival’s Online Music stores.”

    Also not true. You cannot play back music in WMA format, but if you burn it onto a CD, you can re-rip it into an iPod-compatible format.

  8. “By preventing the iPod from playing WMA or any other protected music format besides FairPlay-modified AAC format, iPod owners’ only option to purchase Online Music is to purchase from Apple’s Music Store.”

    If the plaintiff was truly concerned about interoperability, she would just buy the CD instead of wanting access to more DRM-protected music files. Alternatively, Amazon now sells DRM-free music. Download away.

  9. “After purchasing their digital music library from Apple, these consumers are locked into making all future Digital Music Player purchases from Apple.”

    In economics, your past music purchases are called a sunk cost. If the iPod really provides an unattractive product, you don’t have to continue purchasing from Apple. Burn your purchases to a CD. Rip them into a different format and go buy a Zune!

  10. “For example, the only difference between Apple 1 GB and 4 GB models of its iPod Nano is the capacity of their NAND flash memory parts. At current spot prices in the NAND flash memory market the 1 GB part costs $4.15, while the 4 GB part costs approximately $9.67. Nonetheless, Apple charges an additional one hundred dollars for the 4 GB model.”

    If it ain’t worth a $100 more, then don’t buy it. But everyone does because by paying 67% more, you end up with an iPod nano with four times the storage capacity.