Author: Ryan Long

Blockchain — panacea or bubble?
By Ryan Long

Blockchain — panacea or bubble?

Blockchain technology is taking the world by storm. From banking to health care, many tout block chain and the bit coin it enables as a cure-all. Others think bit coin is heading towards the edge. In between are those who see practical applications of block chain but caution on addiction to bit coin. On February 26th at the University of Copenhagen, I will be making a presentation entitled “Blockchain technology — good, bad, or somewhere in between?” This entry gives you a sneak preview of that talk.

Many of you have heard about “bit coin” but most of you don’t realize that block chain is what enables bit coin. If you are not a technologist, I believe the best way to understand block chain is by analogy. Take the poem by Shel Silverstein entitled “Where The Sidewalk Ends.” Below are the first two lines:

There is a place where the sidewalk ends

And before the street begins . . .

Now imagine that you enter into a Google documents session with your best friend to edit the poem. Instead of “ends” in the first sentence, you put “begins.” Your friend replaces “before” in the second sentence with “after” and “ends” in place of “begins.” These changes are all recorded on Google docs. Both of you can see the changes. Envision, now, that instead of just you and your friend making changes to the poem, there is a community of millions around the world who are making the changes to the poem. This is what is commonly known in computer software as an “open source” network.

Blockchain enables bit coin to work in a similar way. You and your friend do a transaction with bit coin. This transaction will be represented by an idiosyncratic number known as a “cryptographic hash.” It will then be placed on a block and added to the chain of other blocks. The block chain runs sequentially. So your transaction’s hash “777XYZ . . . 1” will be inserted into the next block, and that block will follow hash “777XYZ . . .0.” This would be akin to each word you put into the poem above, “begins,” “after,” “ends,” being represented by a hash. For the poem to rhyme, each word must fit. Similarly, any inserted block that doesn’t fit in the chain will change subsequent blocks’ hash tags, making the chain resistance to tampering.

There are many benefits to block chain. One is that your identity can be represented by a cryptographic hash or signature so as to protect you from hackers. Once your identity is verified, all of your personal information is then erased. In some ways, then, you become a numerical avatar. The benefit of this is that hackers can’t get to your personal information, such as your address, because this information isn’t stored.

But bitcoin is likely another story. For one, there is no centralized regulator given its open sourced nature. This means that the value attributed to bit coin is arbitrary, and there is no floor under which it won’t go. Such decentralization and lack of a central regulator can cause it to crash without warning, since bit coin transactions can be fantastical in reality but nobody would know until its too late.

Blockchain technology is likely here to stay, since it can be used to protect identities, encrypt financial transactions, or even sensitive national secrets. But bitcoin may be a bubble in the making.

Technology
By Ryan Long

Technology

Foreign and domestic clients in the software, hardware, and web development industries rely on our intellectual property expertise in order to protect and license their technological works. To do so, we often draft and negotiate software licensing, non-disclosure, and employment or subcontractor agreements with work-for-hire, non-compete, and non-solicitation provisions.

In addition, we have litigated various claims, including Digital Millennium Copyright Act, antitrust, and breach of licensing agreement, on behalf of our clients in federal and state courts at the trial and appellate levels. Such representation has included responding to cease and desist letters, filing antitrust counterclaims, and resolution of arbitration claims.

Representative matters include:

  • Alluring Logic — Negotiated the acquisition of client Alluring Logic, an SaaS company that serviced the retail sector, by digital marketing company Proximity Insight, including advising the client on the copyrightability of source code;
  • Gelo Factory — Advised Gelo Factory, a software development/design firm, on its client agreements with Toyota, among others, in addition to the preparation of the company’s operating agreement;
  • Kanvas Labs — Provided counsel to Kanvas Labs, maker of a best new iTunes app, on copyright fair use issues concerning the Apple iTunes license so as to enable the company’s acquisition by AOL; 
  • Legendsky Tech Co. — After filing antitrust counterclaims, favorably settled a Digital Millennium Copyright Act circumvention case filed by Intel and Warner Brothers against Legend Sky Tech., maker of hardware that enables HDCP interoperability between different devices. Warner Brothers et. al. v. Legendsky Tech Co., Index No. 15-CV-10169;
  • Tumblr litigation — Favorably settled alleged copyright infringement (a/k/a “copyright troll”) claims totaling at least six figures for a fraction of that amount on behalf of defendants who were the subject of N.Y. state court unmasking subpoenas in connection with their alleged unlawful Tumblr downloads of copyrighted material. Jane Doe v. Tumblr, Inc., et al, Index No.: 153709/2017; and
  • Open Influence (f/k/a “InstaBrand”) — Counseled InstaBrand, a digital ad start-up that promotes brands on Instagram, on the existence and scope of fiduciary duties per promoter agreements that were prepared for the client.

Popularity doesn’t equal truth
By Ryan Long

Popularity doesn’t equal truth

 Popularity doesn’t equal truth. And yet Facebook’s recent proposal to rank the trustworthiness of news sources based on popularity is loosely equating truth with popularity. In so doing, Facebook may be putting form over function.

During the housing crisis, numerous mortgage backed securities were rated “AAA.” These ratings were immensely popular. The ratings were from agencies like Moody’s. Little did many in the market know that these agencies received their fees by the very same banks who were underwriting, or brokering, the mortgage backed securities. As can be seen in movies like The Big Short, or by the financial injuries incurred by many who lost a great deal during the crisis, the securities in question were, in fact, junk. As a result, many of these credit reporting agencies were sued for their ratings via class action lawsuits. This bubble and resulting financial carnage wasn’t new. During the “Dutch tulip bulb bubble” in the early 1600s, prices for tulips were as much as six times a person’s salary. Prices then crashed afterwards to their pre-craze levels.

While Facebook is less likely to have legal exposure for infringing materials or defamatory news posted on the network, its new approach may change that. As a conduit of news rather than a publisher of it, Facebook normally takes an impartial approach towards items that you post on it. By inserting an algorithm into the picture which makes more popular news sources the more reliable ones, Facebook is becoming less an impartial umpire and more a participant in deciding what is true — and what isn’t. It would be akin to determining which works posted are not infringing and which are under fair use based on consensus as opposed to legal analysis.

If Facebook and sites of its ilk really want to combat “fake news,” they may want to think of spot auditing news sources. Like an IRS audit, Facebook would vet a source’s news story for factual veracity by comparing what is said to primary materials, like e-mails, written testimony, or other objectively verifiable information, rather than just leaving up to popularity. As can be seen from the 2016 Gallup poll, in which only 32% of Americans said they trust the media to “report the news accurately and fairly,” the lowest in history, measuring news by popularity isn’t the best benchmark for reliability.

And so Facebook’s policy may be putting form – popularity – over function – truth. It may be prudent to remember Plato’s warning: “no one is more hated than he who speaks the truth.” Perhaps the same can be said about unpopular but accurate or balanced news.

Want to stay out of jail? Read this.
By Ryan Long

Want to stay out of jail? Read this.

Stop!” Says the police officer. Do you need to stop? And when the officer wants to frisk you, must you let him or her do it? While much has been written about in the press recently about “stop and frisk,” the constitutional rules of the road are rarely covered. This entry provides a short primer.

Recently, I had the privilege of defending RC, a prominent Alabama artist, whose works appear at shops like Billy Reid on Bond Street in Manhattan, against a graffiti misdemeanor charge, among other things. Thankfully, I was able to get the charges dropped to a violation, which is not a crime. How did I do it? By ensuring that his Fourth Amendment rights were protected.

The Fourth Amendment prohibits unreasonable searches and seizures of you by the cops. Generally, cops need to obtain a warrant to search any area in which you have a reasonable expectation of privacy. Such areas include your messenger bag, jean pockets, or purse. If the cops directly or indirectly search such an area without a warrant, they are violating the your Fourth Amendment rights. Any related evidence obtained couldn’t be used against you.

However, there are certain exceptions which allow the cops to search or seize you without a warrant. One is “plain view.” For example, the New York City police department observes illegal graffiti materials peeking out from your backpack. Another exception is hot pursuit. New York City police officers see you spray painting a building in Chelsea, and then sprinting from the scene. In both cases, cops have a right to frisk you for any contraband, particularly after an arrest.

To stop you on the street, the cops need only have a reasonable suspicion that you are involved in criminal activity. To frisk you, the standard is higher. In that case, cops must have a reasonable suspicion that you are “armed and dangerous.” If one of the exceptions above applies, however, then they need not have such a suspicion. Barring that, the police cannot search areas of your person, such as your messenger bag, pockets, or purse, without you being considered “armed and dangerous.”

So the next time you are stopped by the police and have arguably broken some law, remember these general parameters. They can help protect your rights, and potentially keep you from going to jail.

By Ryan Long

Net Neutrality — Privacy Silver Bullet, or Can of Worms?

When FCC Chairman Ajit Pai announced last week that he would eliminate the “fair play” rules known as Net neutrality, he took a step that some economists and technologists worry will eventually lead to the monopolization of Internet services in America. What, if any, impact would the elimination of Net neutrality rules have on consumer privacy? The answer, in short, is that consumers would simply be forced to pay more for it. Before I explain why, let’s get on the same page about what Net neutrality means.

Net neutrality rules currently require Internet service providers to treat all content equally, with regard to quality and throughput, regardless of its size, shape, origin, or destination. In economic terms, the rules prohibit ISPs from creating premium classes of service, or “fast lanes.” In so doing, they treat ISPs as publicly regulated utilities.

They also benefit fledgling innovation. If a startup providing a service like end-to-end encryption needed to pay a “fast lane” premium to adequately serve its customers, it might not be able to adequately invest in its product-or reach any customers. But with Net neutrality rules, a nascent business faces the same barriers to reaching potential customers as those of entrenched technology titans such as Google and Facebook.

With Net neutrality’s one-size-fits-all approach, companies ostensibly requiring more bandwidth for more complex content aren’t able to pay more for preferential ISP treatment. That doesn’t directly impact privacy. But in the long term, it could. Profits otherwise available to ISP providers, but unavailable under Net neutrality, would not be reinvested to create more effective, and potentially less expensive, encryption methods. The benefits of such research and development can be seen in other industries, including pharmaceuticals.

One stipulation of the Net neutrality rules is that carriers must “protect the confidentiality of [consumers’] proprietary information” from unauthorized use and disclosure. Whether ISPs would uphold such privacy standards absent a legal requirement would likely correspond with their competitive landscape: More competition for a certain level of service might mean more consumer pressure to provide privacy protections, and vice versa.

With less competition, ISPs likely need more regulation to ensure that they adequately protect consumer privacy. Deregulation would result in privacy becoming more of a luxury than a right. Consumers, for example, might need to pay a premium for a level of Internet access that doesn’t throttle high-speed encrypted communications. At a cheaper, throttled level, they would have fewer and lower-quality choices for apps and services.

Whether Net neutrality’s privacy benefits are outweighed by its concomitant privacy costs is another question.

The Open Internet Order from 2015 requires compliance by ISPs with the Communications Assistance for Law Enforcement Act. Under CALE, telecommunications carriers must construct their network in such a way that they can give the government a backdoor into the network for surveillance purposes when presented with a warrant.

This law coupling enables courts under the Foreign Intelligence Surveillance Act to issue warrants to tap U.S. citizens’ communications devices, all without counsel to speak on citizens’ behalf. In the first 33 years of the FISA court’s existence, judges denied only 11 requests, resulting in a staggering 99.97 percent rate of approval, according to the Stanford Law Review.

There is also nothing in CALE, nor any Net neutrality law, that mandates the use of specific technology to protect consumer information, such as encryption. A $33 million judgment levied against Comcast for unintentionally listing phone numbers it had promised to keep private wasn’t the result of breaching any specific provisions of federal law mandating specific encryption methods.

Backdoor-access provisions already neutralize the consumer privacy benefits of Net neutrality laws. To think otherwise is to naively exchange the potentially prying private eyes of corporate America, which can’t imprison you, with those that can.

Fair use in the digital house of mirrors
By Ryan Long

Fair use in the digital house of mirrors

In today’s highly digitized world, copyright infringement actions, among others, are often brought against alleged infringers using information culled from Internet service provider addresses. While fair use defenses may exist against such suits, particularly when one is doing a music mash up, a preliminary question is whether the initial source evidence is accurate.

There exist technologies wherein users can mask themselves behind other users’ Internet service provider addresses. In this way, one can be located in Timbuktu, for example, and use an Internet service provider address of a user in the North Pole. By doing such masking, some users seek to avoid infringement lawsuits by using the address of another user, in essence leaving them with the hot infringement potato.

In prosecuting civil actions for unlawful downloads of Microsoft software, for example, it becomes imperative to understand such masking methods, and their limits. Prima facie evidence of the source of the infringement, while good for the initial stages of litigation, will evaporate upon further investigation. In some cases, a case brought without sufficient evidence of the source can, upon written documentary notice that the user wasn’t responsible for the download, such as via browser history evidence, lead to a motion for sanctions against plaintiff’s counsel for bringing a frivolous case.

Even with such evidence as to source, due attention needs to be paid to the transformative nature of the use. In digital music mash ups, for example, a sample from Mr. Bob Dylan recording can be modified, and blended into a new piece, so that the old version becomes impossible to recognize. In this case, the defendant likely has a bona fide fair use defense even when the attribution of the source is correct. Thus, in prosecuting a copyright infringement action, proper steps need to be made at the outset so that a sustainable case can be made.

Leaks, geeks, & reporters
By Ryan Long

Leaks, geeks, & reporters

The recent spat of Washington D.C. leaks is “unusually active,” according to FBI Director Mr. James Comey. Even if the leaks are as normal as they are in an allergic nose dealing with New Orleans spring pollen, what are the legal and ethical issues in leaking such confidential information, unknowingly reverse engineering it, or in publishing the leaks?

Generally speaking, liability for the leaker inside the government is clear. Numerous federal laws apply to confidential information circulated within the labyrinth of the federal government, and they generally hold such leakers criminally liable for the willful, and sometimes even negligent, disclosure (or even handling) of such information, including the identity of a Central Intelligence Agency (“CIA”) “covert agent” or President Trump’s tax returns.

However, what about geeks who reverse engineer publicly available information and then end up discovering government secrets and/or strategies through such analysis?

Imagine a modern day Matthew Broderick from WarGames (1983) who correctly intuits a covert government strategy to liquidate foreign ambassadors or heads of state via proxies and then warns how such molehill practices have on prior occasions caused mountains of problems. In the 13 century, Iraqis killed Genghis Khan’s chief envoy and had the beards of the others burned so they could travel back to him humiliated. Thereafter, Mr. Khan massacred almost all of the 200,000 to 1,000,000 inhabitants of Baghdad in one week, at the time the “House of Wisdom” in Islam’s Golden Age. Or take the assassination of Archduke Franz Ferdinand of Austria and his wife in 1914. Many believe that this killing led to the start of World War I, in which nine million combatants and seven million civilians died.

In such instances of geeky reverse engineering of covert government strategies, criminal liability will generally be lacking because such a geek would have no contractual or statutory responsibility to keep quiet, and his speech about an issue of grave public concern – potentially preventing a global conflict — would be protected by the First Amendment. Even so, would be geeks are well advised to consider reprisals from said officials, whether via Nixon type IRS audits or otherwise, and how to protect themselves against them. (Genghis Khan 2.0 protection is one way.)

That’s the leaker and the geek. What about the reporter?

The law in this area is murkier. While there are federal statutes which some have argued would impose criminal liability on a reporter for publishing confidential information, such as a Department of Defense (“DOD”) plan to defeat ISIS, prosecutions have been rare. The First Amendment generally protects the publication of such intelligence. However, in a case where the reporter and leaker work in concert (think offer-acceptance) to violate federal law, a conspiracy case can be brought against the reporter. What is more, prosecutions have been brought against reporters to reveal their confidential sources, as happened with Ms. Judith Miller of The New York Times when she refused to identify the source of information leading to the unmasking of a CIA covert agent, as many say happened in the case of Mrs. Valeire Plame under President George H. Bush’s tenure.

But even if there is no legal liability for the media professional, there is also the question of unintended consequences. Take, for example, a DOD strategy to replace ISIS with “new sheriff in town” Eddie Murphy. Assume a person within President Trump’s DOD, or CIA, who dislikes the President, and/or his political agenda, leaks such the details about the “Murphy Plan” to an unwitting New York Times reporter. The reporter is likely protected in publishing the plan, but should it be published? Asymmetrical information is the key to effective conflict, whether you are in the courtroom, on the battlefield, or in a chess match. Disclosing such a plan, especially if it is already being carried out but even if it hasn’t, would risk the lives of military personnel and/or threaten the security of major cities like New York, Boston, Chicago, and Los Angeles.

Any professional working in media would be well served not only to consider the legalities of reporting leaked information, but also such unintended but foreseeable potential blow back.

Gossip can be fun, but also unlawful?
By Ryan Long

Gossip can be fun, but also unlawful?

Recently, New York Times reporter Mr. Jacob Bernstein was overheard at a party calling Mrs. Melania Trump a “hooker.” Although he subsequently apologized, the legal question is what legal liability, if any, does either he or The New York Timeshave for his statement? In these times of fast and loose media stories, the question is timely for media professionals and consumers of news.

The First Amendment does not protect all speech. One category of unprotected speech is defamation, an actionable tort. In order to prove defamation, a plaintiff must generally show that an untrue statement was communicated about him or her, that the statement was false, and that such statement injured their reputation in the community. Proof of damage can include, but is not limited to, lost sales for a business. In the case of defamation per se, however, a plaintiff need not show damage because the statement in question is considered harmful on it’s face. Examples of defamation per se generally include calling someone a “bank robber,” a “prostitute,” or both.

Of course, context matters. Where the statements are made under the guise of parody or the words, when read in context, do no mean what they would otherwise mean in isolation, then there may be a potential defense against liability. Barring such context, however, legal liability generally exists. This is true even if you republish the defamatory statement or if the statement was made by one of your employees during the course and scope of their duties to you.

That being said, it is harder to prove defamation if you are a pubic figure. In such a case, you must show that the allegedly false statement was made with actual malice, which means that the person knew the statement to be untrue, or that the person made the statement with reckless disregard of whether the statement was true or false.

Under these guidelines, Mr. Bernstein’s recent statement would be considered defamatory per se. Needless to say, truth is an absolute defense to a defamation claim, so if he could proffer admissible evidence showing his statement to be true, then there would be no liability. Whether his apology absolves him of liability is another question. Defamation law varies by state. In all likelihood, the apology wouldn’t absolve him of liability, but it would be an issue for the jury to consider in determining the amount of compensatory or punitive damages.

Whether The New York Times could be held liable for Mr. Bernstein’s statement is unclear. To be liable, Mrs. Trump would need to show that Mr. Bernstein made the statement within the course and scope of his employment. Courts use various factors to determine this question. One factual issue would be whether Mr. Bernstein was attending the party on behalf of The New York Times, or in his personal capacity. If the former, liability will be more likely. If the latter, less likely, for The New York Times.

Media professionals are under immense pressure to get views of their content, and the quick way to do that is to run salacious eye-grabbing headlines. At the same time, the First Amendment’s protections are not infinite for media professionals. Finding the right balance between offering tantalizing news and also respecting the lines of defamation is a prudent course, but one that may be at risk of attack in today’s fast food news environment.

FBI v. Apple — can doesn’t mean should obey.
By Ryan Long

FBI v. Apple — can doesn’t mean should obey.

The FBI investigates a grizzly murder. You are a bank president. The murderer stored his phone book in your bank’s safety deposit box, the code for which is encrypted with copyrighted proprietary software, before he committed the murder. The FBI demands that you provide it with the master code for the box, which can be used to unlock other boxes, too. You can give the FBI the code, but should you? Apple CEO Tim Cook is asking himself the same question, his answer is rightly “no.”

On February 14, 2016, United States Magistrate Judge Sheri Pym ordered Apple to provide the FBI the means to circumvent the iPhone 5c’s encryption technology. That way, the FBI can obtain Mr. Syed Rizwan Farook’s phone contacts to see who else, if anyone, conspired with him on the December 2, 2015 killings. So the FBI’s endgame is understandable, justified, and a matter of public safety. At the same time, Judge Pym’s February order is constitutionally questionable, for these reasons.

First, there are less invasive and more reasonable means of obtaining the evidence. While the February order is ostensibly based on the “All Writs Act,” it was issued to give effect to a warrant directing Apple to give the FBI “reasonable technical assistance.” If the February order permits the FBI to unreasonably search and seize Apple’s property, it is constitutionally defective under the Fourth Amendment. Whether the ordered search is unreasonable depends on if there are other less invasive means of gathering the evidence.

Here, there are at least three other less invasive methods. First – the FBI could back its way into Mr. Farook’s contact list by getting from Verizon, his cell phone carrier, phone calls, texts, or e-mails to or from his phone. Second — Apple can provide the FBI the desired information from the Mr. Farook’s iPhone. This would be akin to you, as the bank president, copying the murderer’s phone book and providing copies to the FBI. Third – have the court review Mr. Farook’s phone information in camera, that is behind closed doors, and cross-reference that information with the phone records around the time of the killings to determine relevance. Once that is done, some or all of the phone’s information can be produced to the FBI.

Second, there is a strong presumption in federal copyright law against allowing circumvention of encrypted copyrighted software. The Digital Millennium Copyright Act (“DMCA”) forbids devices from being made, imported, or marketed to the public which are primarily designed to circumvent technology that controls access to copyrighted content, such as Apple’s software. Because Apple manufactures the phone, and owns the copyrights to the software located within, Apple is free to circumvent it’s own technology under the DMCA. But Apple shouldn’t be forced to so by the FBI. That’s because the DMCA shows how important copyright encryption is to content creators like Apple, to Congress, and the consuming public. As a result, Apple’s interest in protecting the integrity of its iPhone 5c — and potentially other generations of iPhone – isn’t mere “marketing strategy,” as stated by the FBI.

Third, there is no telling how far the government will go if the February order stands without being overturned. According to Apple, the FBI has sought to access to 11 other iPhones since September, and states attorney generals are biting at the bit to do the same. Given this rising tide, the elephant in the room is a lack of trust in what the government will do with the new path it is foraging. While some 51% of Americans apparently side with the FBI on the unlocking of Mr. Farook’s iPhone 5c, American trust in the federal government in general is at an historical low of 19%, according to NPR.

Seen more broadly, the magistrate judge’s February order can be the first rock in an Orwellian rockslide where the government requires all phone makers to make such backdoors to the encrypted software as a matter of policy. The unstated and yet real concern with such a domino effect is that executive agencies will not only use this information for criminal investigation purposes, but to violate the Constitutional and privacy rights of Americans. These concerns aren’t academic. Nor are they paranoid. President Richard Nixon used the Internal Revenue Service go after American citizens he deemed to be his enemies, which led to his articles of impeachment. There is no telling what another Nixon would do with such unfettered power. Thus, Mr. Cook’s concern about the magistrate’s order setting “dangerous precedent” should not be taken lightly.

In the end, it is a shame that Apple and the FBI didn’t partner up outside of court to craft a mutually beneficial solution that would maintain the integrity of Apple’s iPhone 5c and also give FBI the evidence it needs. But amicable solutions like this won’t happen as long as executive agencies like the FBI downplay legitimate concerns of corporate citizens like Apple as “marketing strategy,” and then pursue heavy-handed discovery tactics not because they should and need to – but because they can. It is up the judiciary to stop them by ensuring that the government’s right to know is balanced against citizens’ legitimate intellectual property and Constitutional rights. In the meantime, just because Apple can obey the likely unconstitutional February order doesn’t mean it should. Instead, Apple should get a higher court to overturn and limit it.

Grandma’s going to jail for digital trespassing?
By Ryan Long

Grandma’s going to jail for digital trespassing?

“No digital trespassing! Violators will be sued. Survivors will be sued again!” Ever seen that sign? Not likely. That’s because, technically, there is no law against digital trespassing per se. This occurs when your grandma’s new universal remote control climbs over, figuratively speaking, the encryption security fence on copyrighted content, such as the software to her old garage opener, so as to enable communication between the new control and old garage door opener. And yet some copyright owners want to hold your grandma civilly or even criminally liable under federal law for such trespassing. Allowing them to bust grandma would be an unwise expansion of their copyright monopoly.

Say you buy your grandma a garage door opener made by Acme Inc. The garage door opener comes with a control. Now, granny has a lot of controls, and she is too old to futz around with a control for her television, one for her radio, and one for her garage. Given you love your grandma and want to make her happy, you buy her Bling Inc.’s universal remote control. Bling’s one size fits all control circumvents the encryption technology fence on Acme’s garage door opener. In so doing, Bling’s remote is now able to gain access to Acme’s copyrighted software, thereby enabling interoperability. Otherwise, they wouldn’t be able to communicate because Bling’s remote would be speaking kilometers per hour to the miles per hour garage door opener without a translation protocol.

Does Acme have a claim for digital trespass against Bling or your grandmother? In the view of some copyright holders, the answer is yes. That’s because, in their view, Bling’s universal remote control has enabled your grandma to violate the anti-circumvention provisions of what is called the Digital Millennium Copyright Act (“DMCA”). This is so even if neither Bling nor your grandma infringe, or otherwise induce infringement of, Acme’s copyright in the source code by copying, reproducing, or otherwise publishing it. Under this view, there is a per se — automatic — violation of the DMCA whenever Bling or your grandma trespass, regardless of the circumstances.

But in the view of federal courts, there is no per se rule against digital trespassing under the DMCA. Bling’s universal remote control allows for what is called interoperability between grandma’s different devices, which is an efficiency that Congress didn’t want to do away with when passing the DMCA. In fact, the DMCA explicitly states as much in Section 1201(f)(1), in case you want to bore yourself by looking it up. What is more, courts have dismissed claims brought under the DMCA where the plaintiff is only able to allege or prove digital trespass, no corresponding copyright infringement or conscious inducement of the same.

Then why do companies like Acme file lawsuits seeking redress for digital trespassing? There are various reasons. One is security. Closed software universes, like Apple’s, protect better against viruses that can more easily attack porous systems that are liberal in their approaches to interoperability. This is one of the reasons why Apple’s computers are hacked less often than personal computers. The second is the fear that digital trespassers will pirate copyrighted content. The third is lost revenues. Conversion technology which allows newer kilometers per hour devices to communicate with older miles per hour ones via a translation protocol cost companies money. Rather than forcing granny to buy a new television in order for her to gain access to content protected by new encryption technology, conversion technology enables her old television to communicate with the new encrypted content. In the process, new technology sales suffer.

In the end, your 92 year old grandma isn’t going to jail! One reason is that her and her friends pack heat with silencers. The other is that the DMCA didn’t expand the scope of a copyright holder’s monopoly, and it expressly says that. However, it may take some more court decisions to make that clear to aggressive copyright holders who seek to pursue granny for digital trespass merely because she uses conversion technology to watch Netflix’s “Just Call Saul” on an old outdated screen. Otherwise, grandma’s crew might just shoot them all.