TLJ Memorandum Regarding E-Mail Monitoring, 1/1/2003.

Memorandum

To: TLJ Alert readers.
From: David Carney.
Re: E-Mail Monitoring.
Date: January 1, 2003.

Outline.
I. Summary.
II. Methods of Monitoring Use.
III. Explanation.
IV. Cancellations and Refunds.

I. Summary. Writing, publishing and selling subscriptions to the Tech Law Journal Daily E-Mail Alert (TLJ Alert) is my livelihood. Some people are disrespecting that. So, beginning on, or soon after, February 1, 2003, I will commence monitoring the use of the TLJ Alert and web site. This will be done with code inserted in the HTML source code of the TLJ Alert and web site; this code will cause entries to be made in web site access logs; these logs will be analyzed by log analysis software.

This will be done for the purpose of identifying, tracking, and documenting infringement, and enforcing my rights of authorship and proprietary rights. The problem is that many people are obtaining and reading the TLJ Alert who are not subscribers. This is undermining the financial viability of the TLJ Alert.

Some may object to this. Hence, persons and entities that have already purchased subscriptions may cancel their subscriptions, and receive a prorated refund (based on the portion of the subscription term that is remaining), if a cancellation request is received by January 31, 2003.

II. Methods of Monitoring Use. One method that will be employed will involve the use of graphics in the TLJ Alert. Actually, graphics already appear in the TLJ Alert. For example, when a reader views an issue of the Alert and sees a picture of President George, it may be because there is embedded in the HTML source code the following:

For example, view the source code of this page to see why there is a picture below.

The <img> tag tells a web browser, or e-mail program, to insert at that spot a picture. The src="..." attribute tells the program where on the Internet to go to get the file that will render that picture. The URL (that long string that begins with http://www) is the location of that picture of President Bush. In particular, www.techlawjournal.com is the domain. That is, it is the web site. Then, images is a directory, while people is a subdirectory. Finally, bush2.jpg is the name of the file.

In order for a web browser or e-mail program to obtain another file, such as a graphic, it must send a message over the Internet to the web server where that file is located requesting that a copy of that file be sent back to it. In order for the message to arrive at the web server, it must identify the address to which it is sent. In order for the requested file to be sent back to the requestor, the message must identify the return address.

This accessing of a file on the web server of the TLJ web site causes an entry to be made in an access log file. This log file includes, among many other items, the Internet Protocol (or IP) address that requested the file.

IP addresses are long numbers. They rarely correspond to an easily identifiable individual. However, they do often reveal an entity, such as a government agency, company, or law firm. Moreover, that are other methods, including subpoenas, for obtaining further details.

Access logs for a web site such as that of TLJ are far too voluminous to be effectively viewed manually. Hence, software is used to analyze the raw data pursuant to instructions provided by the user.

So, what this means is that simply by inserting a picture into an e-mail, one can monitor use of the e-mail that contains that picture.

However, this is just the simplest method. The TLJ Alert will use this method. However it will also include graphics inserted solely for the purpose of monitoring use. For example, a graphic that is very small, such as one pixel by one pixel, could be inserted in the HTML source code of an issue of the TLJ Alert. Basically, this would be invisible. But, it would still create the event that causes a log entry on the access logs of the TLJ web site. Such code might appear something like the following:

Here, xxxxx.jpg would be tiny graphics file. When these tiny images are used by marketers to collect and build large databases of information about web users and e-mail readers, they are sometimes referred to pejoratively as "web bugs". Of course, the purpose of the monitoring of the TLJ Alert and web site is not to build marketing databases, but to catch people infringing copyrights, and violating other proprietary rights and rights of authorship.

For example, suppose there is a company (call it the AA1 Software Company) that does not subscribe to the TLJ Alert. However, AA1 nevertheless registers about 30 entries per day on the access logs for images included only in the TLJ Alert. This is evidence of infringement.

The xxxxx portion of the file name identifies the image for copyright management purposes. The actual images will be varied by day, and across subscribers. That is, the image used on one day will be different from the image used on the next day. Also, different subscribers will receive copies of the TLJ Alert with different images. This is for the purpose of tracking the transfer of infringing copies of the TLJ Alert from one infringer to another.

For example, if the hypothetical AA1 is registering about 30 hits per day, but has not subscribered, and the filenames for the image files associated with these hits have all been assigned to copies of the TLJ Alert sent to the BB2 Software Company, then this is evidence that AA1 is getting its infringing copies from BB2.

That then, is a brief summary of the use of the <img> tag to monitor use of the TLJ Alert and web site. However, in addition, the <a> tag with the href attribute will be used for parallel purposes. Some readers of the TLJ Alert use e-mail systems that do not render graphics. But, very few disable the functioning of <a href> based hyperlinking. Moreover, the TLJ Alert makes frequent use of hyperlinking to original documents, which many readers click.

Clicking on hyperlinked text causes the reader to obtain a copy of a court opinion, Congressional statute, amendment, speech, letter, pleading, or other original document. Or, clicking on a hyperlink may provide a web page that is not an original document -- say, for example, the home page of a Congressman who is discussed in a news story.

Some of these original documents are placed in the TLJ web site. By clicking on a hyperlink to a document in the TLJ web site, one creates an event that is recorded in the access logs of the TLJ web site.

However, most original documents hyperlinked to are in a multitude of other web sites. However, the HTML source code of the TLJ Alert will in some cases cause the e-mail program to request a page located in the TLJ web site, which in turn, will contain code that is interpreted by the web server controlled by TLJ. This will, among other things, redirect to the actual location of the original document sought by the TLJ Alert reader.

The result is that the reader will click on a hyperlink of say, a court opinion, and receive a copy of that opinion from the web site of the court. However, in the process, a file in the TLJ web site will have been accessed, thus causing an entry in the access logs. And again, it is these logs that will be used to monitor use of the TLJ Alert and web site.

Finally, TLJ will use a variety of web servers, located at different domains, for the purpose of monitoring use of the TLJ Alert and web site. That is, not all graphics, and access logs, will be located in the web site the domain of which is www.techlawjournal.com. Moreover, the TLJ Alert will be sent from different e-mail domains.

III. Explanation.

All of the monitoring summarized above is directed towards protecting my rights of authorship and proprietary rights. The goal of this system is to sleuth out who is infringing, analyze the scope of that infringement, track the transfer of copies from infringer to infringer, and contribute to building a case for copyright infringement or other action.

For legitimate subscribers (those who have paid for subscriptions or been given free subscriptions, and are engaging in legitimate use of the TLJ Alert), the information gathered will be trivial. That is, when someone subscribes, I obtain their e-mail address (and usually, their employer and phone number). However, the e-mail address alone provides a name and an employer. Most subscribers have published their biographies online (in their law firm's web site or elsewhere). Moreover, a quick Google search for most subscribers turns up news stories about them (or by them), copies of briefs they have written, testimony they have delivered to the Congress, and comments submitted to federal agencies. That is, when someone subscribes, I can already learn who the subscribers are and what they do. What I will learn from monitoring is that subscribers also read the TLJ Alert. However, since they have already paid $250 to receive the TLJ Alert, it is a reasonable assumption that they would also read the TLJ Alert. So, I have learned nearly nothing.

However, for those who are infringing, this monitoring may result in the collection of significant and damaging information. Moreover, in some cases I will make use of this information, along with subscription information, information collected from personal communications, and other sources. This information use will include disclosure to third parties of personally identifiable information, and entity identifying information. See also, Memorandum regarding "Disclosure of Information to Third Parties".

This memorandum regarding e-mail monitoring is written for several reasons. First, I simply want to make know to all readers, legitimate subscribers and others, that I am monitoring e-mail and web site use. Second, I wish to be in full compliance the the Federal Trade Commission's interpretation of the Federal Trade Commission Act with respect to information practices. Third, when I file complaints in the U.S. District Court alleging copyright infringement and other claims, or take other actions, I wish to head off the possibility that any infringer might assert any equitable defenses or counterclaims based upon this monitoring.

IV. Cancellations and Refunds.

I recognize that the notion of e-mail monitoring may offend some e-mail readers. I am very sensitive to the concerns of the legitimate subscribers of the TLJ Alert. Hence, I provide this advanced notice, the opportunity to cancel subscriptions, and to receive refunds.

Obviously, for those who have received free subscriptions (such as journalists and government officials), cancellation will result only in being removed from the distribution list. Those who have paid no a subscription fee will receive no refund.

However, those who have already paid to subscribe to the TLJ Alert and who object to this new practice may elect to cancel their subscription and receive a prorated refund. The notification must be received by Friday, January 31, 2003. The refund applies to the remaining portion of the subscription term. For example, if a paying subscriber paid $250 for one subscription, and there are six months remaining in the one year term of the subscription at the time of cancellation, then I will refund $125, and remove that subscriber's name from the subscription list.

Paying subscribers who wish to cancel and receive a refund need only state that they object. No further elaboration or proof is necessary.