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iPhone 4S’ Siri and EU privacy law November 7, 2011

Posted by Brandon in Technology Forum - the Art.
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Since the release of the iPhone 4S, some consumers have discovered troubling technological gaps in its new marquee feature.  Siri, known as Apple’s “humble personal assistant”, is raising privacy concerns.  But this shouldn’t be surprising even to the most loyal of Apple product lovers.

Released on the new iPhone 4S, Siri can be asked questions, make appointments, dictate text and activate numerous commands with normal language.  It can also answer the user’s questions and comments using normal speech.  However, Siri does not appear to deactivate when the iPhone is locked, meaning that even password protection will not stop Siri from functioning with an unauthorized user.  As MacWorld found, “we had a PCWorld editor pick up my locked iPhone 4S, activate Siri, and compose a resignation letter that was sent from my MacWorld email address”.  While this was performed on the default Siri setting, it appears that even modifying the settings does not stop this functionality.

Apart from unauthorized use, Apple may be capable of collecting personal information through Siri.  While just an interface, meaning that Siri doesn’t collect or store information, but rather transmits it, the information given Siri is saved to Apple’s local servers.  Not your iPhone. This ostensibly allows Apple to collect personally identifiable information, including the iPhone 4S user’s first and last name, relationships with address book contacts, and other personal data.

Technically however, this should not surprise users as Apple has their consent to this collection once users clicked through a license to get the ios5 update.  Under Apple’s software license agreement, part 4(c), those who download the ios5 software update, “agree and consent to Apple’s and its subsidiaries’ and agents’ transmission, collection, maintenance, processing and use of this information, including your voice input and User Data, to provide and improve Siri and other Apple products and services”.  Some have argued that this release makes phone hacking legal under Apple’s terms, but this has yet to be tested.

Assuming Apple makes no modification to affect their license or does not otherwise address unauthorized use of Siri, some consumers could consider taking action to protect the use and distribution of their personal information.

Apart from common law actions, domestic and foreign privacy legislation has been enacted to protect citizens’ personal information.  Unfortunately, US privacy law is not well-developed, and otherwise emphasizes self-regulation.  US regulations have been developed on an ad hoc basis, often after a problem has developed, making the legal protections particularly fact and industry specific. This reactionary approach could be attributed to American laissez-faire economics or the 1st amendment in the US, coupled with the precedent of only implicit privacy rights being recognized in US courts (See Griswold v. Connecticut).  What is more, the Patriot Act has arguably been used to undermine general concepts of privacy.  While this may finally force the court’s to determine privacy rights, fortunately some states including Massachusetts have taken the lead in addressing privacy concerns through direct regulation of the use and collection of personal information.

Conversely, iPhone 4s users in the EU and United Kingdom are currently better situated to protect their privacy rights.  Data privacy law in the European Union is a highly developed and constantly evolving area and has been given considerable political attention when compared to the United States.  Remarkably there are no less than three directives directly on point to the protection of digital information.  Personal information under these directives is defined very broadly, covering “any information relating to an identified or identifiable person”. Directive 95/46/EC, known as the Data Protection Directive, protects member state’s citizens from the unauthorized processing of personal data.  Accordingly, Directive 2009/136/EC or the Cookie Directive, personal info collected over the internet must remain confidential and citizens must opt into communications. Directive 2002/58/EC, or the E-Privacy Directive, further regulates the use of internet cookies, spam, user location information and the transmission of that digital data.  However, none of these laws appear to protect anonymized or aggregated data.

In the United Kingdom, the Data Protection Act of 1998 was enacted in part to bring the UK in line with the Data Protection Directive.   However, similar to EU regulations, this UK privacy law does not cover anonymized or aggregated data. While this provision plays more to Apple’s favor, EU member states will certainly have powerful tools to compel Apple to take this newly-discovered Siri matter seriously.

*Update 3/15/12: Apple among 18 firms sued for privacy-invasion in mobile apps.

Petzl and Chinese IP law October 21, 2011

Posted by Brandon in Technique Forum - the Training.
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Counterfeit products from China are notorious, but a recent turn towards an insular and specialized outdoor sport is putting athlete’s lives at risk.  Earlier this year, the climbing manufacturer Petzl discovered counterfeit safety equipment was being tracked to China.  These products included handle ascenders, pulleys and carabiners, i.e. products used to save climber’s lives in a deadly sport.  The counterfeits were so thorough that in some cases, fake serial numbers were engraved on the components.  However, the quality of the materials and workmanship was clear.  Normally, counterfeit products are associated with clothing and electronics, but as Petzl now realizes, these untested and cheaply made products are doing more than just diluting their brand.

Climbing equipment is predominately designed and manufactured by Petzl and Black Diamond.  These companies have built a reputation for quality in the climbing community over decades of use in the outdoors.  Petzl claims their products are built and safe tested in the United State and France with durable components and comprehensive design.  However over the last few years, Petzl noticed Chinese counterfeits of their headlamps appearing, presumably in an attempt to capitalize on the loyal customer base who value the Petzl brand.  The counterfeit climbing equipment was nearly identical in color, design, markings, packaging and batch numbering.  While Petzl is pursuing legal action against the Chinese manufacturer, presumably for patent infringement and trademark dilution, the only remedial action they have suggested for end users is to ensure you purchase Petzl products from an authorized reseller.  This is likely due to the fact that to date Petzl has been unable to specifically identify or distinguish the counterfeited products from their own.

While intellectual property protection in China is widely considered to be poor, the legal structure and organization of IP laws in China is quite strong.  Independent offices administer trademark, patent and copyrighted articles, and the government is a member of World Trade Organization and has adopted significant international agreements on IP such as TRIPS.  The Chinese Trademark Office is the most active trademark office in the world.  While registration is required and can take up to three years to complete, foreign owners of “well known” marks can challenge Chinese domestic applications.  Although patent rights are territorial, meaning that an inventor must register in China for protection, China has adopted the international standard of “first to file” for patents.  What is more, China’s copyright laws are very liberal, granting protection for tangible products without requiring registration.  This is ideal for software owners, as source code does not need to be disclosed in order to gain rights under copyright.

Despite these protections, IP enforcement is difficult and infringement is rampant.  This is likely in part a result of a booming economy and growing socioeconomic diversity.  China has the world’s second highest number of internet users, and their economy has tripled in the last ten years.  This dramatically affects enforcement and the ability to regulate technology.  Potentially more significant, the Chinese government heavily regulates imports, creating an exaggerated demand for foreign goods and technology that feeds the black market.

The consequences are severe for foreign IP owners.  The US Customs Office, now part of the Department of Homeland Security, notes that China is the single largest source of seizures at our borders.  Outside the US, chinese counterfeiters can not only sell their products locally, but easily export to foreign markets.  In fact, counterfeit products have been found at trade shows in the United States, which are further introduced to the US market through sales to customers and suppliers.  Unsurprisingly, this has led to some counterfeited products having been found within the original IP holder’s own supply chain.

To combat counterfeits, there are many precautions available to IP holders.  For example, one could make efforts to register IP, particularly where it is required (patents), record the development and investigate customers, as well as enforce rights whenever infringement is discovered.  More important, register your IP in China in Chinese, to avoid inconsistencies or graft in translation disputes, and do thorough prior art searches.  Finally, to assist policing, the US Customs office offers a program to register copyrights and trademarks with the department, which is then used to actively monitor imports coming into the country.

Chinese counterfeits are not going to disappear, so domestic IP holders need to consider where they can to protect their brand and monitor their industry.  Rock climbing is a beautiful but dangerous sport, and litigious if you run a guide or touring company.  Adding the possibility of indistinguishable fake equipment is not a risk we can take.  Hopefully Petzl will make sure this is the last time we have to worry about it.

I want to thank my friend and prolific climber G Johnson for suggesting this topic, cheers bud.

Google Power October 12, 2011

Posted by Brandon in Technology Forum - the Art.
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Google’s services are generally free, but they’re not cheap.  While it is the pre-eminent source for search, cloud and increasingly mobile technology, Google has entered a new market over the last few years…Energy.  Last month, Google began offering solar panel installation packages for residential properties to support its energy consumption.  However this is not Google’s first investment in energy exploration, and it likely won’t be the last.

Data centers full of servers store and run Google’s technology, and it uses a lot of electricity.  A single data center can gobble up enough energy to power a city of 40,000 people, and Google has almost forty around the world.  “Brown” energy, or energy created from coal and oil, is expensive and shown to be environmentally hazardous.  Google had trouble finding energy investments or companies to develop new tools, so as they “do no evil”, Google moved into investing in green technology and support its development independantly.

This led Google to found a new arm of the company, known as Google Green.  Google strives to use green technology and energy to power their data centers and promote the use of sustainable energy in general.  While Google is notoriously secretive, CEO Eric Schmidt admits that “energy prices drive the cost of Google”, and the lack of green energy development inspired the company to begin investing in the technology itself.  Internally, Google is developing new materials to replace mirrors on solar-thermal farms, which dramatically cuts manufacturing costs.  It already has installed 1.6 megawatts of solar panels on its facilities, which now cover 30% of Google’s operating power needs.

In the first stages of developing green technology, Google partnered with General Electric in 2008, and began developing its own technology in 2009.  Since then, it has invested in wind farms in North Dakota, California and Oregon along with solar projects in California and Germany.  Google’s most well known projects include a $168 million investment in 2011 for a solar thermal development in California’s Mojave Desert, which could supply energy to nearby locations like Las Vegas and Los Angeles.

However, Google’s most ambitious plan involves funding and developing a “superhighway” of huge waterproof wiring to be installed off the US eastern coastline, with the goal of creating the infrastructure for large wind farms in the Atlantic.

The most recent project of supplying residential solar panels launched last month.  Under the plan, Google will finance and own the solar panel installations, and will collect fees from homeowners as well as energy subsidies from the federal government.  In return, homeowners are provided with free solar panels and installation along with the right to buy the solar energy which is collected from their own roofs.  Residential solar panel installation would otherwise cost upwards of $30,000, and the monthly “energy fee” Google will charge homeowners to use the power should be less than the local utility bills.  Indeed, for Google “it’s an opportunity to significantly expand the market” for green energy.  Certainly, much of this power would be harnessed for Google or its investor’s purposes.

Which leads to the current political “climate” for green energy.  The Obama administration is in an uncomfortable position of justifying it’s guaranteed $500 million to the solar panel manufacturer Solyndra, which subsequently filed for chapter 11 bankruptcy and laid off all its workers earlier this year.  Despite this, at the end of last month President Obama approved two more solar panel loans for $1 billion.  In Massachusetts, the company Evergreen was given $58 million in state and federal credits, only to file for chapter 11 bankruptcy as well.

Certainly the green energy sector is in need for an overhaul, and requires commercial support apart from government subsidies.  To compete with China, which provides subsidizes in the billions of dollars to it’s green energy sector, the US green energy industry needs a massive boost.  Maybe Google is just trying to do its part.  The Obama administration would certainly appreciate someone else footing the bill for a little while.

Massachusetts data privacy law, outwards and upwards September 28, 2011

Posted by Brandon in Tenet Forum - The Law.
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Last week, Massachusetts Attorney General Martha Coakley announced that she may be investigating Apple Inc. for breaches of personal data laws in Massachusetts, and is otherwise stepping up enforcement.  With 480 reports of data breaches this year, Coakley has estimated that 1 in 3 Massachusetts residents are victims of personal data breach.  Her comments leads some to believe what some may consider an obscure law will be enforced not just in Massachusetts, but nationwide.

In 2007, Massachusetts enacted a new law in Chapter 93H to protect security breaches of personal data.  Under the law and its accompanying regulations, anyone who owns or licenses personal information of Massachusetts citizens must develop a plan to protect that personal data, report security breaches, and dispose of personal information.  Ostensibly, this means that any company in any jurisdiction, worldwide, may breach the law if they maintain accounts containing personal data of Massachusetts’ residents.

Chapter 93H was spurned on in part by a major data breach at the Massachusetts company TJX, in 2007.  In that incident at least 45.7 million credit and debit card numbers were stolen by hackers who accessed the TJX computer systems.  However, the regulations promulgated under Chapter 93H did not go into effect until March 2010, and the first fine was not issued until a year later.

The Massachusetts regulations for the data protection laws, 201 CMR 17, sought to change the conception of personal data for the commonwealth, and are written to be technology neutral.  The law is enforced by the Massachusetts Attorney General’s Office, and there is no private right of action under Chapter 93H. Katz v. Pershing, No. 10-12227-RGS, at 9 (D. Mass. August 23, 2011).  This lack of a private right of action in Chapter 93H may be to blame for a lack of enforcement, as public resources have been strained since the laws went into effect.  Nonetheless, the regulations are prescriptive rather than reactionary to illegal conduct by requiring companies to draft and maintain a “written information security plan”, or a WISP.

Under a company’s WISP, there must be procedures for how employees access and use client’s personal information, and a specific description for how personal information will be protected.  “Personal Information” is defined as the first and last name of the Massachusetts citizen, combined with a social security number, credit card number, account number or state ID number.  It is not clear at this point whether numbers for documents such as rental applications are considered personal information, or if  personal information must be protected after the person is deceased.

Liability for breach of the Massachusetts data protection laws extends to contractors and agents of the company, and penalties may be severe, extending to each and every breach.  Where breaches accumulate, the damage awards can be high.  For example, the Briar Group, a conglomerate of Boston area restaurants and taverns, settled for $110,000 with the government last year.  If you are a company which handles personal data, it may be advisable to keep detailed and clear records of your compliance with the law, including your procedures for an internal breach and reporting mechanisms.  Other solutions may include encrypted emailing with customers, security assessments, policy development and employee trainings.

Some commentators note that a private right of action may exist for breaches of data privacy under Chapter 93A as an unfair and deceptive trade practice.  Outside Massachusetts, while there may be practical enforcement and jurisdictional issues with policing Chapter 93H and 201 CMR 17, Coakley could be signaling that her office will bring the issue to the courts.  Her comments should signal companies both in and outside Massachusetts to tighten up their privacy policies.

Do you agree or have other points on this topic?

Ideal pre/post endurance meals…you already have September 22, 2011

Posted by Brandon in Technique Forum - the Training.
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Everyday I go for a 3+ mile jog, but for the last nine months or so, I haven’t increased my endurance or energy levels.  After reading a few articles and talking with other runners, it became clear that I wasn’t properly eating before or after my runs.  Fortunately, the nutrients that I needed before and after a workout already exist in my kitchen.

Pre-Workout Options

Prior to an endurance workout, whether that’s running, swimming or biking, a main goal is to fill your liver with glycogen.  Glycogen, basically, fuels your nervous system.  You also want to make sure to get plenty of carbohydrates, which provides short term energy.  However, be careful to avoid proteins, fat and fiber, which takes up important space for more critical nutrients.

Certainly, there are numerous foods that contain glycogen and carbohydrates, but here is short list of some of the most prevalent in a home.  Interesting, Coca Cola can be ideal for boosting energy prior to a workout.  Caffeine and sugar provide short term fuel that triggers energy production, even if it is short lived.   Therefore, it’s best to have a Coke 30-60 minutes before a workout, and sip it slowly.  However, pretty much any other time of the day, you should avoid Coke.  It’s loaded with high fructose corn syrup, has zero electrolytes, and packs 140 empty calories per 12 once can.

Bagels are also a great source for pre-workout nutrients.  They’re rich in carbohydrates, bland and easily digestible, not to mention portable.  Be careful of cream cheese and butter, which are fast burning and will crash your energy levels once you get moving.  Instead, swap in peanut butter or banana slices, where you’ll get more carbs.  Banana’s on their own are also excellent pre-workout meals, as they’re loaded with carbs and low in protein and fat.

The more obvious pre-workout meals are energy bars, which are designed to be easily digestible and provide a boost of carbohydrates.   More importantly however, energy bars help stabilize glycogen levels for longer workouts.   To maximize this high-carb/low-fat option, cut up the bar into pieces to eat sporadically during the workout.  However, energy bars may at times be too heavy for some stomachs, and are a poor daily snack with high calories and sugar.

Post-Workout Options

Following a workout, it’s important not only to replenish carbohydrates and glycogen, but also repair muscles and replace missing nutrients.  This is best done by loading up on protein and fiber.  One of the best, and most surprising options, is chocolate milk.  Chocolate milk is best immediately after a workout, when muscles are most prepared to absorb nutrients.  The chocolate adds anti-oxidants and carbohydrates, nearly twice as much as regular milk, keeping in mind that low-fat milk is ideal.  In combination with the milk, it replenishes glycogen stores and provides protein to repair muscles. Along with reloading stores of calcium, vitamin D, potassium, magnesium and B vitamins, the anti-oxidants clear out free radicals, which has links to aging.  But make sure to have it within 20 minutes after you exercise.

Another surprising post-workout meals that provides many essential nutrients is pizza.  With lots of veggies and some lean meat, pizza can deliver all the macro nutrients you need, from carbohydrates to fat to protein.  The best option would be whole wheat with olive oil, basil, garlic, chicken and some mozzarella.  Be careful not to go too heavy on the cheese and meats, and have it within an hour of exercising to maximize the benefits.

Bananas are also ideal after a workout because of the potassium levels they provide, which is lost in sweat and helps repair muscles.  Other general tips for post-workout foods include those with electrolytes (sports drinks), salt, oxidants (berries) and protein that provide critical amino-acids (meats).  Be wary of portion sizes however, as nothing more than a palm-sized amount for any type of food is the recommended size.

Overall, it’s a good idea to focus on carbohydrates before a workout, and proteins afterwards.  As far as timing, eat no less than 30 minutes before endurance exercise, but no more than 30 minutes afterwards, depending on your tolerance.

Did I miss any other common foods that are great for pre or post workouts?  Suggest some below!

Trademarks in Notre Dame and Michigan throwback uniforms September 15, 2011

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This last weekend with the Notre Dame and Michigan football rivalry underway, I wanted to examine the trademark background of their commemorative uniforms.  Adidas released throwback uniforms for both teams for the game, with a more pronounced Adidas mark.

Before going into some preliminary research on the trademark rights in the designs, it would be helpful to outline some basic trademark concepts and practices.  The power to protect and enforce trademarks comes from the Lanham Act, and from state law.  A trademark can be anything from words and symbols, to colors and sounds, but in order to obtain ownership over that mark, there must be an intent to use it.

Deciding whether to register a mark is very important.  While it can be expensive and time consuming, the benefits often far outweigh the burdens.  Registration improves your ability to enforce the mark because registered marks get nationwide priority and apply retroactively against unregistered marks.  Registered marks are categorized by design codes, and made publicly available to the world to place everyone on constructive notice of their existence.  A registered mark becomes uncontestable for five years, and as long as the mark is in use, the rights to the mark are indefinite.  Rights to unregistered marks are also indefinite, but it more difficult to prove continued use because registered marks carry a presumption of intention to use.

The University of Michigan claims to have registered at least five marks, and claim rights to all iterations of the classic “M” logo.  There are also a dozen or more marks which Michigan considers protected without registration.  If Michigan had to enforce these registered and unregistered marks, the process for each could be significantly different.

When a trademark application is filed, the Patent and Trademark Office [PTO] conducts a search of existing marks and examines the distinctiveness of the mark from others.  Arbitrary marks that have no relation to the product, for example “apple” for computers, have a high level of distinctiveness, and accordingly enforceability.  However, marks which are only descriptive, such as “M” for Michigan, would require a secondary meaning to be protected.  Secondary meaning would be granted if the mark clearly denotes a single source or meaning, such as immediately signaling a brand.  After years of use, the Michigan “M” in the context of its color and shape would likely pass, but the analysis could be contentious.

The distinction that is important to recognize is that if a mark is registered, this process takes place in the PTO, where examiners are presumably knowledgeable and specialize in certain marks.  Unregistered marks would be litigated in court.  This is a much more expensive process, and presents more risk to a disputed trademark owner.  For example, the party challenging the mark can show there is consumer confusion between the mark at issue and another mark through public surveys.  Depending on the scope of these surveys, rights to the contested mark could be lost forever.

It is unclear why Michigan has not attempted to register the dozen or so other marks, but it could be because they do not appear to be very distinct, or even original.  The PTO may have already rejected them outright.  Interestingly, the shamrock image on the Notre Dame helmet for this uniform does not appear to have been registered.  As the shamrock image is prolific, there may be litigation over this uniform in the future.

License or Contract?: the form of the Open Source license September 7, 2011

Posted by Brandon in Tenet Forum - The Law.
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In looking at open source licenses, you may discover that there are basic assumptions overlooked in most of the research involving the General Public License, or GPL.  This question never seems to be asked: is the GPL an actual license, or is it a contract?  The answer may have implications for enforcement and remedies when the GPL is alleged to be breached.  Fortunately, there is some discussion of the topic, but the issue is yet to be resolved.  Problems may lie ahead for the open source community if these agreements are ultimately challenged.

Copyright v. Contract

Copyrighted works are often licensed, not sold.  Copyright licenses are governed by federal law, where the remedy for breaching an agreement is an injunction, attorney’s fees and statutory damages.   Contract law however is governed by state law, which can garner damages for violations of express and non-express terms, as well as specific performance.  The consequences of this is that if the GPL is deemed a license, the owners of the open source code may not be able to enforce the clauses governing free distribution or regulating the integrity of the code.

There is a small but growing debate whether the GPL is a license or a contract.  Some believe that the GPL is a type of contract known as a browsewrap agreement.  At lease one court has taken this view, noting that some terms may be viewed as covenants under a contract, not license conditions, for example by number of users.  See Netbula LLC v. Storage Technology Corp., 2008 WL 228036 (N.D. Cal., 2008). Otherwise, it could also be a unilateral contract without express acceptance, until the GPL code is modified or distributed, where the agreement then becomes a bilateral contract.

However, this view is undermined by the fact that there are many ambiguous or missing terms in the GPL, such as a termination provision. Also,  browsewrap agreements are not recognized in all jurisdictions.  More importantly, when it comes to damages, contracts may not be a preferable view of the GPL from the licensor’s point of view.  This is because there would be no expectation damages.  The licensor of open source code does not expect or demand any financial compensation.  There are no expected earnings to be made from the open source code itself.  It is given away for free.  For that reason, plaintiff’s may argue that the GPL is not a contract at all.

Unsurpringly, the enforcers of the GPL [the Free Software Foundation] and some circuit courts view the GPL as a license. See Eben Moglen, Enforcing the GNU GPL, The Free Software Foundation, September 10, 2001;  Jacobsen v Katzer, 535 F.3d 1373 (Fed. Cir., 2008).  The courts rest their analysis on the fact that open source licenses state “provided that”, which implies a condition to a license, not a covenant to a contract.  This is the property rights theory.  Any material breach of the GPL would result in revocation of the license, which leads to copyright infringement liability for the defendant licensee.  By viewing the GPL as a license, the owners of the code can refuse to extend the right to use for any subsequent user of GPL code.  This may get around issues of privity, where users who do not agree to the GPL directly with the owners of code may be free to use it.

However, the remedy would still be limited to damages and an injunction from further use.  There is a concern that the licensor could not enforce the distribution of his or her code by simply withdrawing consent to those who threaten to breach the GPL terms.  Specific performance is not available under the copyright act, only under contract, and even then it is a disfavored remedy.  Therefore, there is no easy answer for whether the GPL is a license or contract, because the law is always catching up to the technology and implications for both have downsides.

Massachusetts

Massachusetts for the moment has shelved the issue.  Until specific legislation has passed, Massachusetts courts will treat software licenses as contracts subject to the UCC.  See I. Lan Systems v. Netscout Service Level Corp 183 F. Supp. 2d 328, 331 (D. Mass., 2002).  At this time, there is no such legislation in Massachusetts, and therefore this state may not be a favorable venue for defending the GPL.

Behind the Minimalist Running Movement September 1, 2011

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Last summer, I read “Born to Run” by Christopher McDougall on the recommendation of a friend.  The story details the culture and lifestyle of Mexico’s sandal-wearing Tarahumara Indians.  The ideas underlying the book, that traditional running shoe design promotes an unnatural heel strike and barefoot running strengthens and improves running ability, influenced me to experiment with minimalist shoes.  Over the last year, I’ve been running in the Nike Free and haven’t felt stronger or enjoyed running more in years.

With this new-found interest and success with minimalist running techniques, I think it’s interesting to see the ergonomic and commercial interests behind the movement.   The main tenet of minimalist running is that our bodies are already perfectly designed to run.  A natural gait places the ball of the foot on the ground directly under the body, where the impact absorption is performed by the arch of the foot.  Minimalists argue that traditional running shoes encourage a traumatizing heel strike by incorrectly supporting the arch while overcompensating with soft padding in the heel and boxing the toes.  This leads to weakened control and stability by emaciating important muscles in the foot.

Transitioning to a shoe that doesn’t modify the mechanics of our foot allows the runner to return to a mid foot strike.  This forces other parts of your back and calves to provide balance and control, which strengths your whole body.  The difference between traditional running shoes and minimalist versions is the thickness of the cushioning and geometry of the heel.  The bigger the shoe, the less contact the runner has with the ground, which can decrease responsiveness and consciousness of your surroundings.  Of course, the ability to splay the toes and shorten the gait increases strength in your legs and feet as well.  It has been emphasized however that caution should be taken when beginning barefoot running, as your body may not be prepared to make such a dramatic transition.

Critics of minimalist running warn that it can injure your arches, makes you vulnerable to debris, and otherwise ruins your feet.  Minimalists assume that running is a natural movement of our bodies, rather than one that needs to improved by support and cushioning.  While our ancestors ran barefoot, critics note that they didn’t do so on concrete or at the peril of broken glass or metal.  Apart from this however, there is empirical evidence that barefoot running makes you a faster and more efficient runner.   Research has shown that 100 grams of extra weight on the feet translates into a decrease of your running economy by about 1%.  In fact, weight on the feet makes running more difficult than weight in a person’s midsection.  This is because weight on the feet is subject to constant acceleration and deceleration during running, which has exponential energy consequences.  A simple calculation shows that two 10-ounce shoes will make you more than 5% less efficient.

Apart from the ergonomic rationale for promoting barefoot running, there is a commercial one as well.  “Minimalist” running shoes are prolific and are now produced by most athletic shoe manufacturers.  The Nike Free, first introduced in 2004, is the most widely known and retails for more than $70 a pair.  While some claim that barefoot running is a grassroots movement, these shoe companies apply and are issued patents on their designs.   Most recently, the designs underlying the vibram “five-finger” shoes have been patented and the company has taken a not-so-subtle approach to infringement.

To be expected, litigation has followed.

Similarly, less than three years after the Nike Free entered the market, Reebok sued Nike for patent infringement over the technology.  Reebok claimed that they patented a shoe which could be rolled up and dispensed from a vending machine.  While the case presumably settled when Reebok voluntarily dismissed the case less than three months later, the financial incentive in obtaining patents on minimalist technology is growing with the market.  Currently, Nike has patent applications for automatic lacing as well as a “tent” athletic shoe, which is designed to “urge or influence” the upper shroud material away from the foot, allowing for a more natural running experience.  While the barefoot movement may be premised on the idea of returning to simplicity, it does not appear to have had that impression on manufacturers.  What are your thoughts?

“Li-Fi”: wireless communications through light August 24, 2011

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Imagine if you could access the internet by connecting to your desk lamp or a street light?  Harald Haas is developing the technology.

Last month, Dr. Haas gave a “TED talk” to audiences in the UK to present this technology and discuss its implications.  TED talks are presented by TED conferences LLC, a nonprofit established in 1984 devoted to spreading ideas from innovators in technology, entertainment and design [TED]. Speakers are invited to present at two annual conferences where attendance fees are charged, but then the videos of the event are copyrighted, released and shared under a license from creative commons.  The license, CC BY-NC-ND v. 3.0, permits the right to copy, distribute and transmit the video of TED presentations so long as the authors are attributed in the work and the video is not modified or used for commercial purposes.  Accordingly, by attributing TED conferences LLC and Harald Haas as the original source of these materials, I may share the contents of the video in which the following idea was presented.

D-Light Technology

Harald Haas, a professor at Edinburgh University and inventor of numerous patents, has developed a technology he calls D-Light, which can access the internet wirelessly using light instead of radio frequency (“RF”) waves.  He considers wireless communications a type of utility, much like water or electricity.  However, like other utilities, wireless communications have problems which limit the scope and usefulness of the technology.

Namely, Dr. Haas identifies four problems with wireless communications: capacity, efficiency, availability and security.  Capacity issues arise with RF because of bandwidth, efficiency issues with the majority of energy going to cooling base stations, lack of availability in RF reception, and security issues with the potential of RF signals to be intercepted and transmission through walls.  The use of light to replace RF solves all of these issues, explains Dr. Haas.

The D-Light technology itself comes from a microchip which is inserted into an existed LED lightbulb.  The technology uses a “mathematical trick” called OFDM, or orthogonal frequency division multiplexing, which quickly turns the LED lightbulb on and off at a rate indistinguishable with the human eye.  The OFDM is a special modulation of the LED to enable the light source to transmit data.  Ordinary RF waves send binary code to receivers through individuals lines, but OFDM technology in an LED bulb sends thousands of streams of binaries in parallel to other devices in a much wider spectrum, increasing processing and bandwidth.  In the video, Dr. Haas demonstrates the transmission of a high definition video through a desk lamp bulb transmitter.

Certainly, the implications of a successful trial of this technology is profound.  Lights are available anywhere, as Dr. Haas notes, from hospitals to aircraft to smartphones and deep-sea remote machines.  Dr. Haas addresses concerns that multiple light sources can distort the reception, and dismisses the possibility.  He says that the D-Light technology addresses all of the four concerns with wireless communication systems.  Regarding capacity and availability, light bulbs are abundant, nearly 14 billion worldwide by his estimates with capacity 10,000x that of RF, so an infrastructure already exists.  As lights are on the scale of the electromagnetic spectrum between infra-red and ultra-violet, the technology is safe and efficient.  Finally from a security standpoint, Dr. Haas says that light cannot easily move through walls, which limits access.  All that we need to do is replace incandescent lightbulbs with the semiconductor LED bulbs.

Patent Concerns

One of the first questions any investor, or skeptic of the technology, will ask is whether Dr. Haas has a patent.  It appears he did.  However, the patent application that he filed for this technology, which he calls “optical free space data transmission”, was assigned to Airbus in Germany.  This is reflected in all of his patent applications for the technology in the US, the EU, Japan, China and a few other nations.

The patent itself, US patent application number 20110069958, is described in the abstract as an invention that relates to “an aircraft data communication system as well as an aircraft comprising such a data communication system, in particular a wireless optical communication system inside an aircraft cabin and outside for aircraft services”.  While this wouldn’t appear at first glance to include the use of ‘D-Light’ technology outside of an aircraft, the patent laws are notoriously vague and patent claims in the past have been interpreted to extend well beyond the original embodiment.  One compelling critique of the US patent system argued that inventors can hide claims, and even if there was access to those claims, they are hard to interpret. Moreover the authors argue, even the interpretation of a claim could change over time, which is further diluted by the fact that clear unambiguous claims are still very expensive to research and locate.  See James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk, Princeton Univ. Press (2009).  Therefore, the possibility arises that Airbus could sue and enjoin Dr. Haas from further developing this technology.

Would this be an unlikely event?  Dr. Haas has two other patent applications in 2011 that could be similar to his D-Light technology; a “method and apparatus for scheduling information” (Patent application # 20110143799), and a “mobile and base station transceiver apparatus for communicating (Patent application # 20110003611).  Please feel free to leave general or specific comments below.

Open Source Licenses Primer August 17, 2011

Posted by Brandon in Tenet Forum - The Law.
Tags: , , , , , , , ,
23 comments

I want to begin this blog with a topic that sparked my interest in this webpage’s creation: open source software.  Open source is a concept which encourages creating and proliferating computer source code at no cost, in order to allow anyone to experiment with and modify the code.  Historically, copyrightable works were protected under the theory that profitability was found in scarcity and privatization. The open source movement has challenged that theory by showing that innovation can also exist through free dissemination, which can ultimately lead to collateral financial gain.  A great example is the Linux operating system, where companies such as Red Hat have emerged to provide technical support.

By disseminating the source code free of charge, more extensive feedback and advertising is available while keeping distribution costs at almost zero.  Further, the code could end up becoming a de facto standard for whatever function it serves if enough people become familiar with and rely on that software.  However, open source software presents complicated legal problems regarding copyright ownership, and therefore infringement.  To address these issues, open source developers release their code subject to licenses which retain ownership in the code and any derivative modifications.  While the enforceability of these licenses has yet to be directly challenged, it appears that end users are generally assenting to the terms.

Guidelines and Examples of Open Source Licenses

Open source code is always governed by a license, which makes the technology monetarily free to use so long as that user conforms to the terms of a license. Open source or public licenses are available in standard forms, such as the General Public License [GPL], Lesser General Public License [LGPL], Mozilla, MIT, Apache and BSD licenses, or an open source developer can draft his or her own terms. While the open source community is amorphous by nature, the Open Source Initiative [OSI], a non-profit with the aim of promoting awareness and the importance of open source, released a list of conditions which must exist in the license to conform to open source principles. 

To be considered open source software, OSI gives an open source definition that states that the technology must meet the following ten criteria: 1) Free redistribution, 2) Inclusion of source code, 3) Permit derivatives, or modifications to the work, 4) Maintain integrity of the source code, 5) No discrimination against persons or groups, 6) No discrimination against fields of endeavor, 7) Distribution of the license, 8. License must be specific to the product, 9) License must not restrict other software, and finally, 10) the license must be technology neutral.  While these criteria are only advisory and not enforceable, they help guide the analysis of open source licenses.

The standard form open source licenses range from being quite restrictive, meaning that the user must make the code and any modifications to it widely available, to being less restrictive, meaning that the user may retain more control and ownership over the modifications.  The most restrictive license is the GPL, which dictates that in addition to retaining the original copyright notice and disclaimer, the licensed “work” and any works “based on the program” must be disseminated at no cost.  Ostensibly, this would mean that source code from proprietary files which are statically or dynamically linked to the GPL’d code must be made freely available.  Linking in computer programming is the combining of object modules, which are compiled from source code, to form executables, and can be done either statically or dynamically.  Statically linking files physically combines the contents of the files and binds them into a new executable.  Dynamically linking files however only reference each other, and are only brought together when the executable is running.

Hence under the terms of the GPL, if GPL code in a run-time library were somehow dynamically linked to a proprietary program like Microsoft Word, for example, the entire Microsoft Word program arguably should be given away for free.  An FAQ produced by the Free Software Foundation states statically linked files are derivatives under the GPL, but the also considers a qualified scope of dynamically linked files to be within the GPL.  The FAQ states dynamically linked files that “make function calls to each other and share data structures” create a single program, and are thus derived from the GPL.  Further, the FAQ claims that dynamically linked files where “communication between them [are] limited to invoking the ‘main’ function of the plug-in” may be derivatives.  However, this restrictive of an interpretation of GPL where dynamically linked files are “infected” by the GPL, when GPL code is not reproduced, has drawn criticism and may not be legally enforceable.  See Van Lindberg, Intellectual Property and Open Source: A Practical Guide to Protecting Code (O’Reilly Media, 2008).

Less restrictive open source licenses include the Mozilla Public License and the LGPL.  Mozilla requires that modifications to the code become subject to the license, and the LGPL permits proprietary licensing of modifications if a suitable shared library mechanism is used for linking with the modified library.  The least restrictive, i.e. most permissive, licenses include the Apache, Revised BSD and MIT licenses, where all that is required to be performed is the retention of copyright notice attributing the original code authors, and in the case of the Apache license identifying modifications as your own.

Other Forms of Open Source

Most people who are familiar with the open source movement are aware of free and open source software, or FOSS. However, some developers have expanded the world of open source to hardware as well, known as OSHW. Open source hardware is a relatively new phenomenon and not widely discussed, and appears to use existing open source software licenses for distribution.

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