December 2012

While 86% of Americans Oppose Behavioral Targeting of Voters, Campaigns Embrace it

by Bobbi Leal, UMN Law Student, MJLST Articles Editor

Thumbnail-Bobbi-Leal-ii.jpgWith the dramatic 2012 Presidential election behind us, new information about the campaign funds are being released. A recent Huffington Post article outlining the campaign funds allotted toward the mining and analysis of internet data about potential voters. President Obama and Mitt Romney’s campaigns spent a combined total of $13 million dollars on this controversial practice.

The Minnesota Journal of Law Science and Technology’s recent publication, “It’s the Autonomy, Stupid: Political Data-Mining and Voter Privacy in the Information Age,” points out that campaigns utilize data mining as a way to more effectively target voters. The mined data includes information gleaned or purchased from both public and private sources. To make use of the internet’s information on the individual, the campaigns use algorithms that match the attitudes of voters on specific issues with individual behaviors and tendencies. The individual behaviors they might look at include where you shop, which team you root for, which petitions you sign, who your friends are, and even what mobile device you use.

With a continued decrease in the number of undecided voters, the practice of using digital data to target particular individuals is an effective one. Further, online targeting can reach voters who would normally have no access to traditional campaigning, such as those in remote counties.

A study by the University of Pennsylvania Annenberg School of Communications revealed that a large majority of Americans (86%) are against behavioral targeting and tailored advertising for political or other purposes. However, privacy practices in the political context are not regulated like in the commercial sector due to protections afforded by political speech.


Six Strikes and You’re Out: Can a New RIAA Policy Solve Old Online File Sharing Problems?

by Ian Birrell

Thumbnail-Ian-Birrell.jpgSince at least 1999 when Napster was originally launched, internet piracy, or downloading copyrighted materials (especially songs, videos, and games,) has been a contentious activity. The Recording Industry Association of America (RIAA) has historically taken a very public and aggressive stance by finding individuals associated with IP addresses matching those where this “file sharing” is coming from. After finding such a target, the RIAA would send a letter demanding a settlement for thousands of dollars or threatening litigation, risky and expensive to the target, despite a potentially very small monetary value of downloaded material. The RIAA suits, which have continued for a number of years, include a number of well publicized absurd claims.

This journal has written on the RIAA policies before. In 2008, we published a student note by Daniel Reynolds named The RIAA Litigation War on File Sharing and Alternatives more Compatible with Public Morality. Reynolds argued then that the policies were ineffective and unconscionable and urged change.

Change is coming. Later this year, after a number of years in development, a number of major carriers are planning to institute a “six-strikes” plan. This is a voluntary agreement between ISPs and certain content providers (the government is not involved,) and is made to target peer-to-peer downloading. The plan has a notice phase, an acknowledgement phase, and a mitigation phase. Under the plan, a private carrier – say, Time Warner – will first notify a user that there has been an allegation of illegal copyright activity, then force a user who may be infringing (and who may or may not own the account) to acknowledge having received such notices, before the user finally suffers consequences. These consequences can include throttling of internet speed or having popular websites blocked.

Proponents point to a few positives under this proposal, including the user’s right to appeal to an independent arbitrator (for a $35 fee.) Additionally, though lawsuits are still permitted by copyright holders, the hope is that the system will educate the public about copyright infringement and that, on notice that their behavior is illegal, infringement will at least slow down. Ron Wheeler, a Senior VP at Fox, said that, “This system is not designed to produce lawsuits–it’s designed to produce education.

Unfortunately, a lack of education may not be the underlying problem. Reynolds noted that, even in 2004, awareness of the (il)legality of file sharing was widespread. And increasing awareness may not sharply decrease infringement. Critics further note that, despite the safeguards, penalties are ultimately based on accusations rather than definite findings of infringement. If the system ultimately works, though, it may be worth the headaches for both sides. Consumers will not be able to infringe (as much) but the public will also not suffer suits against twelve-year-olds for sharing music.


Apple & Samsung Litigation Shows Need for Patent Reform

by Thomas Manewitz, UMN Law Student, MJLST Managing Editor

Thumbnail-Thomas-Manewitz.jpgIn the past two years, two of the world’s mobile technology leviathans, Apple and Samsung, have engaged in multibillion dollar patent infringement litigation. Specifically, Apple has been seeking damages and fighting for injunctions on several of Samsung’s mobile products in markets across the globe. On August 24, 2012 in the United States, Apple won a 1.049 billion dollar damages award for Samsung’s “willful patent infringement.” In the same lawsuit, Samsung counter sued and won zero damages. In the wake of this trial, Apple is seeking an injunction for 20 Samsung products.

Samsung provides the market with a popular Apple alternative that does not come close to dominating the market share. In the context of the litigation, both Samsung and Apple were forced to release their U.S. sales numbers. Samsung, who is at risk of having its products blocked from the U.S. markets, sold 21 million smart phones and 1.4 million tablets, while Apple sold 86 million smart phones and 34 million tablets. New and different products are now at risk from being removed from consumer markets because of our patent litigation structure. I will not argue that this case alone will temper innovation; however, it does beg the question as to whether or not high profile patent litigation, and the patent system as it currently stands, optimizes the production societal good and innovation. Perhaps the United States patent system should be reorganized based on different principle. For a discussion of the reorganization of the patent system see the United States patent system see Liza Vertinsky’s article in the Minnesota Journal of Law, Science & Tehcnology, “An Organizational Approach to the Design of Patent Law.”