SOFTWARE

August 05, 2007

Herring and Patents - And no, I don't mean fish.

The other day I mentioned a chart from the Economist outlining the largest patent granting countries – with Japan coming out on top.

The Intellectual Asset Management Magazine also picked up on the online chart and added some additional thoughts to the debate concerning software patents.  They posit that it is the certainty of the legal protections afforded rather than the existence of protection for information technology that ensures a competitive industry.  In other words, patent protection for software is a debate that has little, if anything, to do with maintaining open and competitive IT industries.

Some food for thought…

Is the software patent debate a red herring?

That said, the EIU sees the legal infrastructure in a country as being much less important than other factors, such as IT infrastructure, human capital, R&D environment and support for IT industry development. Of course, it could be that all of these are actually affected by the IP infrastructure of a country (in other words, for example, maybe a company is more likely to invest in R&D or to attract funding for R&D, if the right IP protection is available); but it could also well be that, if the EIU is right, the vitriolic nature of the debate around software patents is actually little more than hot air because, in the end, as long as there is legal certainty – of whatever kind – other factors are far more important in ensuring strong competition in the IT industry. (Emphasis added)

 

Posted by Douglas Sorocco at 09:15 PM.
Permalink: Herring and Patents - And no, I don't mean fish.
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SOFTWARE

November 01, 2006

EFF Sues Michael Crook for Bogus DMCA Claims

Be very careful when you make threats against ISPs under the Digital Millennium Copyright Act (DMCA).  The Electronic Frontier Foundation is taking the issues seriously and are pushing for a preliminary injunction to stop the potential harassment and abuse. 

As a primer: under the DMCA, a copyright holder can request that an ISP remove offending material from the web.

With respect to the EFF action (at Laughing Squid):

"The EFF has just filed suit against Craigslist copycat scammer Michael Crook for filing bogus DMCA claims. In September, a blog post about Michael Crook on 10 Zen Monkeys (which is run by Jeff Diehl) used a screen shot from Fox News of Michael Crook. Michael then send a DMCA (Digital Millennium Copyright Act) takedown notice to Jeff’s web host, claiming that he had a copyright on the image. Jeff’s web host then forced him to remove the image or his account would be suspended. Jeff then moved 10zenmonkeys.com to Laughing Squid Web Hosting (the web hosting company that we run). Within 24 hours, our data center was sent a DMCA claim from Michael Crook, requesting that the image be removed. I immediately contacted Jeff to discuss the situation, as well as Jason Schultz, an attorney at The Electronic Frontier Foundation. A few weeks later, EFF filed the complaint."

Source: Laughing Squid » EFF Sues Michael Crook for Bogus DMCA Claims

Posted by Douglas Sorocco at 08:55 PM.
Permalink: EFF Sues Michael Crook for Bogus DMCA Claims
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SOFTWARE

May 06, 2006

Microsoft files for patent on curse words.

Well, not really.  But I figured that headline might get all the anti-patent folks riled up.  Turns out the Microsoft filed a patent application (Pub. App. 20060095262) in 2004 on a method of automatically sensing and removing curse words. 

Arstechnica is on the case “unearthing” this patent application … um, a note to the writers over there – there really isn’t much to “unearth” – the vast majority of patent applications are published 18 months after they are filed.  The use of the term “unearthing” makes it sound like y’all were doing some sort of Indiana Jones or Dora the Explorer expedition or something. 

Anyway, back to the subject at hand:

A recently unearthed patent application originally filed in October 2004 by Microsoft could make television and radio broadcasters very happy. In it, Microsoft describes the use of an "automatic censoring filter" that can censor undesirable speech in real-time (or batch mode, for Chris Rock). Here's how it works [according to the abstract]:

 

The automatic censoring filter employs a lattice comprising either phonemes and/or words derived from phonemes for comparison against corresponding phonemes or words included in undesired speech data. If the probability that a phoneme or word in the input audio data stream matches a corresponding phoneme or word in the undesired speech data is greater than a probability threshold, the input audio data stream is altered so that the undesired word or a phrase comprising a plurality of such words is unintelligible or inaudible.

A quick check of the status of the application shows that Microsoft hasn’t yet filed an information disclosure statement listing all known prior art – I wonder if it will include a statement that it is “well known in the art that mothers have washed their kids mouths out with soap” for engaging in such “undesired speech”?

Posted by Douglas Sorocco at 10:00 AM.
Permalink: Microsoft files for patent on curse words.

SOFTWARE

April 18, 2006

Trying to Burst the bubble - Just another troll?

So last week we asked ya'll to give us your best shot at a litmus-test definition for the term "patent troll."  It's an understatement to say that the response was somewhat underwhelming.  We received a grand total of......zero definitions.

We've decided to take that as an indication of the difficulty associated with defining the term and not a statement about the readership of the blog (which, for the record, is reaching all time highs right now).

We do believe that the issue is important enough for a follow-up, though.  How about a real life example?

Check this out - Burst.com recently filed a patent infringement suit against Apple Computer.  The patents at issue relate to technology that speed the delivery of data, including audio and video files, over a network.

We've got a question for you.  A simple one.  Is Burst.com a patent troll?

Wait...don't answer.  Consider a few facts first:

The company has two (count 'em, 2) employees and a portfolio of ten (count 'em, 10) U.S. patents.  It routinely asks companies to license its patents, and sues them if they don't.  It focuses on software and high-technology companies for some reason (must have something to do with the fact that the technology relates to that area).  Just last year, it successfully settled a dispute with Microsoft for a reported $60 million.

Hmmm...smacks of a patent troll by most definitions, right?

Consider this description from the company's web site:

The company focuses exclusively on licensing activities and strategic relationships.

(emphasis is ours)

Are you serious?  An exclusive focus on licensing and strategic relationships?  Does that mean they don't actually produce anything?  (based on the web site, it's hard to tell if any "products" are available from the company at this time)

Surely there must be a bridge running over the Burst.com headquarters in Santa Rosa.

But, don't answer the question yet...Here's a few more facts:

According to a recent article in BusinessWeek, the Microsoft settlement reportedly earned the lawyers a fee of about $20 million.  That lawsuit was apparently financed by "an investor."  Oh, and the company openly states that its goal in the Apple lawsuit is to seek a chunk of the growing revenues for online music distribution. 

A troll for sure, right?  These guys are Pure Evil.  Damn trolls.

Humor me, though.  Don't answer yet.  As Lee Corso would say, "not so fast, my friend."

Here are a few more facts that you should consider:

The founder of Bust.com is recognized by many as a true visionary in computer network technology.  He's an inventor.  His technology apparently wowed the crowd at the Consumer Electronics Show in 1991.  He had invented improved methods for transmitting data over computer networks long before large video and audio files were of concern to the masses.  The company was once viewed as a real tech startup success story, and had even grown to include 110 employees in the late 1990's.

But when Microsoft upgraded its Media Player software, Burst's product, Burstware, stopped working.  Strange.  Payroll shrank immediately from 110 to 4.

Ok...now give us your answer (or keep it to yourself, we don't care...just try to answer the question).  Is Burst.com a patent troll?

Or is it just an angry innovator seeking to protect its property?

Do you see the challenge?

 

 

Posted by J. Matthew Buchanan at 10:40 AM.
Permalink: Trying to Burst the bubble - Just another troll?
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SOFTWARE

March 23, 2006

handbook on patent mapping from Japanese patent office

Steve Nipper sent me a handbook from the Japanese Patent Office outlining different methods of mapping patent information and data. (JPO Patent Map Handbook (294 KB))  Steve always comes up with these little jems that he finds while scouring the Internet.

As Steve knows, Matt and I are deeply interested in the use of software, such as the excellent mindmapping software “MindManager” by Mindjet, to graphically display and present patent information. We have used this type of a system for freedom to operate opinions, state of the art searches, competitive intelligence reviews and strategic patenting initiatives.  The JPO Patent Map Handbook is an interesting read that presents patent mapping initiatives from the point of view of a national patent office.

Well worth a glance if you, or your clients, do any kind of strategic patenting activities. 

Posted by Douglas Sorocco at 03:09 PM.
Permalink: handbook on patent mapping from Japanese patent office
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SOFTWARE

February 17, 2006

what do anti-software patent advocates want?

No software patents at all, of course.

To the die hard advocates it isn’t about the quality of the patents being issued or the term of exclusivity that is being given.  It is about very existence of patent rights for software – period.

In an article at NewsForge (the online newspaper for Linux and open source) about IBM’s new initiative with the US Patent Office to create repositories of prior art for the USPTO to use in examining software patents, one prominent anti-software patent advocate sums it up:

Software developer and patent opponent Florian Mueller says, "Those patent pools and prior art initiatives aren't harmful per se, but the intention behind them is to give people comfort when there are serious reasons to be worried and to push for a legislative ban of software patents."

Mueller, the founder of NoSoftwarePatents.com and a key figure in the fight against software patents in Europe, says the efforts might reduce the number of US patents that are granted, given prior art. However, he added that those are the kinds of patents that can be invalidated anyway by later proving that prior art existed at the time of the patent application.

"The patents that really give reason for concern, such as the Eolas patent or Microsoft's File Allocation Table (FAT) patents, survive any prior-art check, so they can't be prevented by that initiative," Mueller says. "So far, the users or vendors of no major open source program have been successfully sued over a patent in a way that made headline news, but the day it happens, the problem will be understood by many, and people will then look at those patent pools and prior-art libraries and realize that those don't solve the patent problem to any meaningful extent."

Posted by Douglas Sorocco at 09:14 PM.
Permalink: what do anti-software patent advocates want?
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SOFTWARE

December 11, 2005

IP and Music - A Documentary

Steve Cummings at Hodges Partnership was kind enough to send me a link to an interesting documentary (documentary is enttiled “What Do you Think?”) he directed for the IP Institute at the University of Richmond School of Law.

It is a great tutorial and raises some interesting questions relating to intellectual property, file sharing, copyright and the role of each in today’s society.  While geared toward undergrad students, I think it would be a useful tool for any class or academic situation exploring these issues.

Thanks for the link Steve!

Posted by Douglas Sorocco at 12:34 PM.
Permalink: IP and Music - A Documentary

SOFTWARE

November 08, 2005

Engines of Growth - Report of the Economic Contributions of the US Intellectual Property Industries

According to an article entitled Content must catch up with new-media world, the real world ramifications of “rampant” intellectual property theft are shocking:

A study released by NBC Universal on Monday put a fine point on just what is at risk not only to media and entertainment industries but also to the overall U.S. economy. "Engines of Growth: Economic Contributions of the U.S. Intellectual Property Industries," (PDF) commissioned by NBC Universal, yielded "shocking" conclusions according to NBC Uni chairman and CEO Bob Wright regarding copyrighted music, books, TV shows, films and patents.

The piracy of intellectual-copyrighted products is costing the U.S. about $250 billion annually. Globally, it is estimated that more than one-third of all software is pirated. Domestically, what hits home is that 40% of the growth of U.S. private industry contributing to the all-important gross domestic product is from intellectual property-related industries. In other words, this still problematic matter is a U.S. economy-buster.

Well worth the read, whether your are pro-IP or a copyfighter at heart – thanks to IPcentral for hosting the PDF. 

I would suggest reading the report in tandem with Nicholas Carr’s blog post entitled “The Amorality of Web 2.0” – why you may ask?  Well, take this excerpt for example:

But the yearning for a higher consciousness didn't burst with the bubble. Web 1.0 may have turned out to be spiritual vaporware, but now we have the hyper-hyped upgrade: Web 2.0.

. . . .

The promoters of Web 2.0 venerate the amateur and distrust the professional. We see it in their unalloyed praise of Wikipedia, and we see it in their worship of open-source software and myriad other examples of democratic creativity. Perhaps nowhere, though, is their love of amateurism so apparent as in their promotion of blogging as an alternative to what they call "the mainstream media."

To those of you copyfighters who want everything free, open and accessible without limitations on access – I have a question:

Is free information that is incorrect, inaccurate, incomplete and incoherent really free?

Just asking.

Posted by Douglas Sorocco at 09:58 PM.
Permalink: Engines of Growth - Report of the Economic Contributions of the US Intellectual Property Industries
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SOFTWARE

October 07, 2005

eTV: Another Attack on Entertainment Industry

Digital Video Recorders (DVRs), such as TiVo are sweeping the country. If you do not have at least one DVR, you are really missing a new way to watch television. When you choose to record your favorite programs, you get to watch what you want, when you want. If you do not own a DVR, you can Rent my DVR. Okay, so it is not my DVR, but that is the name of the site. You can have someone record five shows for a Euro. Of course, you must click a box saying that you have the right to view the programs. If you do not have Discovery, Comedy Central, Showtime, or FX Network, you technically should not ask them to record shows that air on those channels. This is not the only way to transmit recordings from the TV broadcast to a computer. In fact, TiVo ToGo allows transfers to PCs, DVD, or mobile devices.

Another example, wwiTV has 1047 stations listed around the world, and even tells you how to record programs using your computer. I could not find anything talking about permission to broadcast. However, it does seem that most of the stations are local broadcast stations.

While the advancements above are suspect, more clear violations are happening.

Did you know that you can watch ESPN and Discovery Channel without paying? See PPLive (in China), and coolstreaming (in Hong Kong and currently shut down due to copyright infringement allegations). There is little question that this online sharing of premium content violates the owner's copyright. However, enforcement is already difficult. An ipFrontline article discusses the copyright challenges this poses. For example, the server with information about violators may be out of the jurisdictional reach of the copyright owners.

What is an entertainment industry to do?

Posted by Melody Wirz at 10:38 AM.
Permalink: eTV: Another Attack on Entertainment Industry

SOFTWARE

September 07, 2005

ip memes' newest members

IP Memes will include a couple of new contributors in the next issue due out on September 26 - namely, Matt Buchanan of the Promote the Progress blog and myself.

If you're not familiar with The TechnoLawyer Community...you should be. TechnoLawyer provides a number of great newsletters (including IP Memes), and a forum where "technolawyers" can ask one another questions about technology (i.e., "has anyone every used _______ and what did you think about it?"). It is an excellent resource for all tech attorneys, and has an archive which I have searched from time to time with questions (what scanner to purchase, whether I should upgrade to the latest version of __________, etc.). The best part? It is free. Try it, if you don't agree you can easily unsubscribe.

Over the past year Steve Nipper of The Invent Blog has been writing the IP Memes newsletter. IP Memes is described as “a weekly newsletter that explores emerging technology-related intellectual property issues — or “memes” as we call them. Think of it as your coal-mine canary for intellectual property issues.”

Steve has been doing a solid job this past year - Matt and I are both thrilled to be asked to join him to continue IP Memes' tradition of excellence and join some of the IP community's finest commentators and thinkers - including Dennis Kennedy, Denise Howell, Gail Standish, Kevin Grierson and Kurt Calia - all of whom, are IP Memes alumni.

Click the image above to be taken to the signup form for IP Memes and yes, it is just another example of the collaboration taking place over at Rethink(IP). You never know where we might "pop up" next.

Posted by Douglas Sorocco at 08:06 PM.
Permalink: ip memes' newest members

SOFTWARE

July 19, 2005

Are Playlists Copyrightable?

I was recently asked whether radio station playlists are considered intellectual property. My first response was a simple "yes." However, I got to thinking a little more. I even asked around to find out what others thought. The result? A bunch of confusion.

As long as the expression is recorded in a fixed medium, it is copyrightable as a compilation. So, if the playlist is written on a page, or if the broadcast is recorded on a tape, then it is protected.

However, in order to violate the copyright, there must be copying of at least a substantial portion of the work. If the taped broadcast includes commercials and DJ commentary, but the copy omits these things, it looks less and less like the copyrighted work. The same is true if the copy changes the order of the "replay." As the copy gets more and more different from the original, issues of proof also arise. A number of stations play "Top 40," so a copy may have to play several songs in the exact same order to prove copying, rather than coincidence.

So, the simple answer is "yes," radio station playlists are considered intellectual property. However, copying of these playlists must meet certain requirements to be considered a violation of copyright law.

Posted by Melody Wirz at 04:39 PM.
Permalink: Are Playlists Copyrightable?

SOFTWARE

July 13, 2005

Internet Archive sued under DMCA and CFAA

Created in 1996, the Internet Archive is an extremely valuable tool for researching historical website content. In fact, my most recent use of the WayBackMachine was to look at a product that was the subject of a recent Federal Circuit decision. The decision upheld a district court decision requiring the product be pulled from the market. Without the Internet Archive, I would have never been able to actually see the disputed product.

According to Web archive sued over use in another suit, it "is also routinely used by intellectual property lawyers to help learn, for example, when and how a trademark might have been historically used or violated."

However, the Internet Archive was sued last week by a company who claims that "the access to its old Web pages, stored in the Internet Archive's database, was unauthorized and illegal." The lawsuit claims copyright infringement, violation of the Digital Millennium Copyright Act, and violation of the Computer Fraud and Abuse Act.

Posted by Melody Wirz at 09:38 AM.
Permalink: Internet Archive sued under DMCA and CFAA
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SOFTWARE

July 08, 2005

Class Action Websites: Privilege Without a Relationship?

The 9th Circuit Court of Appeals recently ruled that a law firm does not have to provide an adverse party with information obtained through a questionnaire on the law firm's website.

Even though the site stated that there was no attorney-client relationship created by the form, the information obtained was considered privileged under California law.

While this decision seems to fit within my understanding of confidential communications, it certainly highlights the problems present in class action websites. The article Class Action Web Sites Untested states that "class action Web sites developed by law firms continue to present complications related to jurisdiction, applicable laws, ethics rules and more, which courts have yet to address."

Posted by Melody Wirz at 03:26 PM.
Permalink: Class Action Websites: Privilege Without a Relationship?

SOFTWARE

July 07, 2005

Mark Cuban on the DMCA

This post by Mark Cuban talks about the Macrovision suit against Sima and Interburn.

He states:

According to MacroVision CEO Bill Krepick, “Sima and Interburn infringe Macrovision’s intellectual property by offering products that enable users to make unauthorized copies of copyrighted content by illegally removing our copy protection system.”

Now maybe I’m reading this wrong, but the way I understand it, the CEO of MacroVision, a company that sells copy protection software to DVD publishers, is sending out a press release saying…

”Our software doesn’t work. It sucks. We can’t stop a bunch of little companies from writing software that completely busts our copy protection that we are selling for millions of dollars to publishers.”

An interesting take on the protection provided in the DMCA.

Posted by Melody Wirz at 05:20 PM.
Permalink: Mark Cuban on the DMCA

SOFTWARE

July 06, 2005

TV Technology - The Next Great Copyright Case?

"Days after the Supreme Court weighed in on digital copyright infringement issues in the MGM v. Grokster case, select consumer electronics chains began stocking a product some predict could spark the entertainment industry's next showdown over intellectual property rights." TV technology at edge of legal frontier

Grokster made it clear that selling a device that has the stated purpose of infringement isn't okay. However, there was no mention of "space-shifting" or "place-shifting." Perhaps this means that the current law allows the newest in entertainment technology, as long as the marketing is done correctly.

For years, we've been setting a device to record our favorite programs while we aren't home (time-shifting). First with the VCR, and later with DVRs. However, we've been waiting for the ability to view programs remotely (space -shifting).

Every time I've spent the night in a hotel, I've missed my DVR. I can't stand flipping through the channels, hoping to find something interesting when I know that I've got great programming waiting for me at home. Or even worse, missing a program and hearing the outcome the next day before I get a chance to view it. With the newest in TV technology, you can view your recorded programs before you get home.

From the article: "New to the shelves of Best Buy and CompUSA this month is Slingbox, a brick-sized device that enables viewers to route the live television signal coming into their homes to a portable device anywhere on the globe via broadband connection."

The ability to "space-shift" seems a natural extension of the "time-shift" of Sony. As long as the companies market the use I've described, space-shifting may be viable. As for the entertainment industry, I recommend they "sell" programs to people who forgot to record them (or who don't subscribe to the channel of the program).

Posted by Melody Wirz at 11:08 AM.
Permalink: TV Technology - The Next Great Copyright Case?
| Comments (2)

SOFTWARE

June 29, 2005

phosita ::: quick links for 2005-06-29

• After 17 Years in Court, Plaintiff in Festo Fails to Prove Infringement (after two trips to the Supreme Court, it could be over -- as long as there isn't another appeal)
• Application Size Fee Discount from "The Invent Blog" (It's effective July 1, 2005, so it's worth a look)
• The Court Has Ruled So Enter the Geeks What will the response to the Grokster decision be? Perhaps, as stated in the article, the "new standard for software innovation: don't ask, don't sell."
• Supreme Court's unsound decision Could Google be in trouble as a result of the Grokster decision? (registration or viewing of a commercial required)

Posted by Melody Wirz at 09:29 AM.
Permalink: phosita ::: quick links for 2005-06-29

SOFTWARE

June 27, 2005

Grokster Decided

In a unanimous decision, the music industry won.

• Entertainment Industry Wins U.S. Supreme Court Fight on Piracy (Bloomberg)
• Court rules Internet file-sharing services can be held responsible for music theft (WOOD-TV)(AP Story)
• Web file-sharing sites may be sued, justices rule: Decision OKs lawsuits if service encourages illegal swapping (MSNBC)

I couldn't find the decision yet, but I'm sure it will be interesting.

UPDATE: The decision is here.

Basically, the Court held that when there is intent for users to infringe, the software provider is in deep doo-doo. I was sad to see the Court avoid the Sony decision, but Breyer's concurring opinion does a good job of explaining why we should leave the Sony decision alone (as much as possible).

The two different concurring opinions are interesting. Ginsberg, Rehnquist, and Kennedy all seem to think that a re-interpretation of Sony may be in order. This concurrence states: "If, on remand, the case is not resolved on summary judgment in favor of MGM based on Grokster and StreamCast actively inducing infringement, the Court of Appeals, I would emphasize, should reconsider, on a fuller record, its interpretation of Sony's product distribution holding."

Breyer, Stevens, and O'Connor seem to focus on the development of technology. Their concurrence points out the factual similarities with Sony and nearly admits that the software is a staple article of commerce. They still come down on the side of the music industry. However, they appear to limit the holding to cases where the entity "actively seeks to advance the infringement."

Of the opinion and the two concurrences (55 pages total), I recommend the Breyer concurrence (last 18 pages).

Comments?

Posted by Melody Wirz at 10:19 AM.
Permalink: Grokster Decided
| Comments (2)

SOFTWARE

Grokster Ruling Expected Today

I think we've all been holding our breath long enough. Hopefully, we'll be able to breathe again today. For a few stories on the expected ruling, check out the following:

• Grokster ruling expected: U.S. justices could decide file-sharing suit brought by entertainment firms
• Grokster Reader's Guide

Posted by Melody Wirz at 09:05 AM.
Permalink: Grokster Ruling Expected Today

SOFTWARE

May 29, 2005

hyperbole quote of the day

"The future of software development is grim. The world's small software firms are teetering on the verge of extinction and the specter of software patents threatens to push them over the edge."

Via Market Watch – article entitled “Patents Still Matter in Software Business”

Posted by Douglas Sorocco at 11:53 AM.
Permalink: hyperbole quote of the day

SOFTWARE

May 26, 2005

IP Rights in Software

Although the article was posted nearly a month ago, I thought you may like to read about A NEW PARADIGM FOR INTELLECTUAL PROPERTY RIGHTS IN SOFTWARE on the Duke Law & Technology Review. This article provides a pretty good starting point if you don't really know what the debate is about. While I would probably have to read some of the articles from the footnotes to be able to actually discuss the issue with anyone, I definitely have a better understanding.

UPDATE: I got an e-mail message that included a link to Patents and Software: The history of intellectual property protection and software has an anomoly that brings strong reactions to software patents. This is easier to read than the above article, and highlights the debate well.

Posted by Melody Wirz at 09:24 AM.
Permalink: IP Rights in Software
| Comments (1)

SOFTWARE

May 06, 2005

US appeals court tosses FCC's broadcast flag rule

From the Washington Post:

A U.S. appeals court on Friday struck down a Federal Communications Commission rule designed to limit people from sending copies of digital television programs over the Internet.

The U.S. Court of Appeals for the District of Columbia said the FCC had "exceeded the scope of its delegated authority" with the 2003 rule, which would have required TV set manufacturers to start using new anti-piracy technology by July 1.

The full 34-page opinion is available here.

Posted by Melody Wirz at 04:30 PM.
Permalink: US appeals court tosses FCC's broadcast flag rule

SOFTWARE

May 05, 2005

Scout Merit Badge for IP Respect

According to the press release issued by the MPA (the international version of the MPAA),

On April 30, the Motion Picture Association (MPA), Hong Kong Scout Association, Hong Kong Intellectual Property Department (IPD) and Hong Kong Customs & Excise Department launched the Intellectual Property Badge Award Program, the world’s first Scout merit badge program focused on respect for and protection of intellectual property.

I'm not quite sure whether this is a great move, or a questionable one. It's wonderful that Hong Kong officials have taken action to encourage the youth to respect intellectual property. However, I'm a little cynical about the involvement of the MPA to accomplish this. For more on the issue, see the comments to the article MPA Launches Scout Merit Badge Program for Intellectual Property Respect.

Additional links on this subject:

• Hollywood creates Boy Scout merit badge on copyright
• New Scout Badge on Copyright

Posted by Melody Wirz at 09:27 AM.
Permalink: Scout Merit Badge for IP Respect

SOFTWARE

April 28, 2005

news "magazines" publish patent nonsense as well

Continuing in PHOSITA’s tradition of ranting on patent press release nonsense, Matt Buchanan of the Promote the Progress blog “rants” on the failure of C|Net to appropriately fact check a story on the patent reform discussions taking place.

Opps.  Fact check when it comes to technology and patents?  What fun would that be?

Matt is doing a fantastic job collecting, collating and commenting on the draft legislation and hearings taking place.  Well worth a visit through his archives.

I dare a senator or congressman to say during the next wave of hearings that we are going to start printing patents on lamb skins again. 

If we are really lucky, we might get to see an article in a Sheep Farming magazine speak out on the driving need for such reform and the contrary opinion from PETA. Maybe the pulp industry could then get in on the action and make their opinion known as well. 

Mark my words – it will happen.

 

Posted by Douglas Sorocco at 12:32 PM.
Permalink: news "magazines" publish patent nonsense as well

SOFTWARE

April 14, 2005

Method Patents - One Size Fit All Solution?

In his Wall Street & Technology article, Patent Litigation: Legalized Blood Sport, Larry Tabb claims that method patents were developed to protect the human genome coding effort, and should be very limited. He's particularly perturbed by the trading technology vendors using litigation to protect their technology.

He states "[w]e need to clarify the distinction between patentable methods and processes based on unique, ingenious and truly outside-the-box advances and obvious advances that rely on existing thought." While this statement shows a disregard for the safeguards in the patenting process (such as the nonobviousness requirement), he does have an interesting point.

The purpose of granting patents is ultimately to provide a benefit to society. By giving the owner of an invention a monopoly for a limited time, we encourage development. However, the cost of development varies immensely. Drug companies expend massive capital searching for the next miracle cure. Without the promise of exclusivity in their product, they would never spend the money. For them, without patent protection, there would be no innovative effort. Other inventions require little or no investment to obtain. The pet rock was certainly a low-cost invention. There is a great argument that the cure for cancer benefits society much more than the pet rock. However, with a few exceptions, the patent term for both types of invention is 20 years from the filing date. See Are Patents Really Limited to 20 Years - A Closer Look at Pharmaceuticals.

Maybe Mr. Tabb is right. Maybe the length of patent coverage should vary depending on the cost of developing the invention and/or the benefit to society. Plant and design patents currently provide shorter protection than utility patents. Why not add more strata?

Posted by Melody Wirz at 09:47 AM.
Permalink: Method Patents - One Size Fit All Solution?

SOFTWARE

December 19, 2004

should you copyright your source code?

Thomas Stockwell has an interesting article over on Mc|Press Online debating the merits of copyrighting source code.

Last week, on December 14, 2004, intellectual property (IP) consultant Greg Aharonian filed a lawsuit in a San Francisco court, asking the court to remove software from protection of the U.S. copyright laws. According to Aharonian, companies can better protect software using patent law, and the copyrights are unduly creating obstacles to technological advancement.

While on the surface this lawsuit seems arcane, the question of copyrights vs. patents has significant importance to those of us who write code for a living. How the laws are interpreted reflects a confusing legal realm where the concept of IP stretches to the tools we use and our expression of ideas in computer code.

It is an interesting article (and, well worth the read) debating the use of patents vs. copyrights for the protection of source code.

Posted by Douglas Sorocco at 04:23 PM.
Permalink: should you copyright your source code?

SOFTWARE

December 14, 2004

Save Money on Patents - File Electronically

Russ over at Anything Under the Sun Made By Man recently posted Silver Lining to Fee Increases.

With the new legislation on fees for patents, comes some structural change. Now you can save 50% on filing fees by using electronic filing. While it requires learning the software, it may actually save time as well as money. For more information, go to the USPTO site. If you have technical problems, here is a good place for help.

You may also want to review a previous PHOSITA post, File A PCT Patent Application In Your Pajamas.

Posted by at 09:24 AM.
Permalink: Save Money on Patents - File Electronically

SOFTWARE

December 10, 2004

Supreme Court to Hear File Sharing Case

The Supreme Court will consider the file swapping cases we have all been talking about. Metro-Goldwyn-Mayer Studios v. Grokster, 04-480 should have a ruling by July after arguments in the spring.

For more background, see previous posts on PHOSITA:

• Inside a File Sharing Court Proceeding
• iPod a Contrubutory P2P Infringer?
• Another blow to the recording industry
• Criminal Enforcement of Peer-to-Peer Piracy

I'm sure there will be much commentary in the next few days. One good source already is CNET news.com

Posted by at 02:46 PM.
Permalink: Supreme Court to Hear File Sharing Case

SOFTWARE

December 09, 2004

All Business Have Intellectual Property

Oklahoma Inventors Congress has a link to an article discussing the various aspects of intellectual property associated with ordinary businesses.

The article is on mondaq.com (free registration required). It is directed to U.K. readers, so don't take every detail as absolute truth. It is certainly wise to consult a professional who deals with that area of law before making any crucial decisions.

Part 1 answers the following questions:

• What is Copyright?
• Who owns Copyright?
• Who owns the Copyright in websites?
• How do you protect Copyright?
• What are designs?
• Who owns a design?
• How do you protect designs?

Part 2 answers the following questions:

• What is a Trade Mark?
• Who owns a Trade Mark?
• How can you protect a Trade Mark?
• What is a Domain Name?
• Who owns a Domain Name?
• How can you protect a Domain Name?

Part 3 answers the following questions:

• What is a Patent?
• Who owns a Patent?How do you protect an Invention?
• What is Know-how?
• Who owns Know-how?
• How do you protect Know-how?

This article is a very useful overview of intellectual property for small business owners. Just be sure to check with a professional before acting on the statements (for instance, Business Methods are patentable in the U.S.).

Posted by at 05:03 PM.
Permalink: All Business Have Intellectual Property

SOFTWARE

December 06, 2004

going, going, gone!

from the AP:

Bankrupt Internet software maker Commerce One Inc. auctioned off dozens of prized online patents for $15.5 million in a sale that could provoke a legal scuffle over whether the new owner is entitled to collect royalties from a long list of technology heavyweights.

A secretive company called JGR Acquisition Inc. wrested the patents from two other bidders with ties to former Microsoft Corp. chief technology officer Nathan Mhyrvold, who is now running a startup that hopes to accumulate a treasure chest of valuable patents.

. . . .

The group, the Electronic Frontier Foundation, intends to contest any attempt to collect royalties from the Commerce One patents, arguing that the company previously promised not to seek payments for using the technology in question.

Posted by Douglas Sorocco at 09:24 PM.
Permalink: going, going, gone!

SOFTWARE

December 02, 2004

not to be picky.... but,

Not to be picky or anything, but in response to Ars Technica:

• It was the Federal Circuit in 1998 (cert. denied by Supreme Court) that held in favor of the patenting of business methods.
• It was the Supreme Court in 1981 that ordered the PTO to allow software to be patented.
• It was not the US Patent Office’s unilateral decision to allow patenting of software.

Posted by Douglas Sorocco at 06:07 PM.
Permalink: not to be picky.... but,
| Comments (1)

SOFTWARE

November 30, 2004

patent keyword monitoring

…from the ResearchBuzz blog comes word that patent keyword monitoring is now being offered by Freshpatents.com via email as well as an RSS feed of published patent applications.  The monitoring service requires a rather innocuous free registration and the site appears to contain a significant amount of information on different classifications of patents and patent information broken out by registered agent, class etc.

 

Posted by Douglas Sorocco at 09:30 PM.
Permalink: patent keyword monitoring

SOFTWARE

November 22, 2004

Top Ten Things to Do About Competitors' IP

The law firm Goodwin Procter LLP recently published an article on how to gain a business advantage over your competition. Here's the top ten things to do about your competitors' intellectual property.

1. Monitor Your Competitors' Patent Applications Before They Issue
2. Monitor the Progress of Your Competitors' Patent Applications
3. Block Your Competitors' Patents
4. Challenge Your Competitors' Patents Before Your Competitor Can Take You to Court
5. Think About Approaching Your Competition
6. Monitor Your Competitors' Trademark Filings
7. Learn About Your Competitors' Global Marketing Strategy
8. Challenge Marks That Hit Too Close Before Your Competitors Gain the Advantage
9. Monitor Your Competitors' IP Licensing Activity
10. Know That Your Competition is Checking Up on You

Posted by at 02:45 PM.
Permalink: Top Ten Things to Do About Competitors' IP
| Comments (1)

SOFTWARE

November 19, 2004

how scholarly are you?

Feeling nostalgic and want to know who has been citing your early work on the ground-breaking Seattle earthworm research you conducted in 1977?  Take a wander over to Google’s newest Beta service: Google Scholar.

Google Scholar enables you to search specifically for scholarly literature, including peer-reviewed papers, theses, books, preprints, abstracts and technical reports from all broad areas of research. Use Google Scholar to find articles from a wide variety of academic publishers, professional societies, preprint repositories and universities, as well as scholarly articles available across the web.

Just as with Google Web Search, Google Scholar orders your search results by how relevant they are to your query, so the most useful references should appear at the top of the page. This relevance ranking takes into account the full text of each article as well as the article's author, the publication in which the article appeared and how often it has been cited in scholarly literature. Google Scholar also automatically analyzes and extracts citations and presents them as separate results, even if the documents they refer to are not online. This means your search results may include citations of older works and seminal articles that appear only in books or other offline publications.

Posted by Douglas Sorocco at 10:31 PM.
Permalink: how scholarly are you?

SOFTWARE

November 11, 2004

creative commons expands into science & patents

from c|net news.com:

Creative Commons, a nonprofit group that has proposed new ways to share creative works by use of a "some rights reserved" copyright system, is expanding from the realm of copyright into patents and scientific publishing by launching "Science Commons".  From their website and press release:

An intellectual-property system that allows sharing between scientists is particularly important, given research grants that often make results proprietary, as well as recent international changes in patent law that expand the scope of data protection, the group said. The "commons" approach could help introduce needed flexibility, it added.

"Right at the historical moment, when we have the technologies to permit worldwide availability and distributed processing of scientific data...we are busy locking up that data and slapping legal restrictions on transfer," the Creative Commons site says. "Judicious balance is needed. The tendency to claim that property rights are never the answer, or that openness always solves all problems, must be avoided."

My firm represents several university and academic institutions and we see the tension between the academic desire to freely share information versus the need and legal obligation of the university to properly protect and commercialize the developments made by the university's employees.  While the Creative Commons' approach is novel and worth discussing and exploring further, the universities' themselves will have to be the ones to "buy into" or adopt the approach - not individual academics or researchers.  The university is the "owner" of the discovery or invention (pursuant to the Bayh-Dole Act) and therefore is the only entity with the legal right to dispose of the discovery assets in an alternative manner.

It will be interesting to see how AUTM (Association of University Technology Managers) responds.

Posted by Douglas Sorocco at 10:44 AM.
Permalink: creative commons expands into science & patents

SOFTWARE

November 03, 2004

IP FIVE-BY-FIVE - THE GOOD, THE BAD, AND THE UGLY

Matt Homann over at the The [Non]Billable Hour blog, regularly hosts a question/answer series famously known as the  "Five-by-Five".  For each Five-by-Five, Matt solicits five experts in an area of the law to give five responses to a specific question about the law. 

The most recent episode is the IP Edition.  Matt asked five intellectual property law bloggers the question: What five things would you change about IP law and/or practice? 

Matt graciously asked me to participate and here are a couple of comments from each of the bloggers:

Stephen Nipper: You are your brother's keeper.  One of the things IP practitioners tend to do is ignore our responsibility to spend time educating non-IP attorneys as to the basics of IP law.  Lets face it, our colleagues (understandably) aren't typically very good at issue spotting when it comes to IP issues.  The result is countless pain and suffering (and much gnashing of teeth).  Solution?  Go teach a CLE to general practitioners, blog, write articles for your local bar journal, start writing a newsletter, etc.  You will be rewarded.

Douglas Sorocco: Everyone needs to take a deep breath regarding software patents.  The end of the world is not near, the seas are not going to be flooding our coastal cities and software  patents are not stifling development of new and useful tools and processes.  Software developers are simply going to have to become better business people and accept that nothing is free and patent clearance searches must be made an integral part of the development process.

Martin Schwimmer: I also think that the development of the UDRP is an astounding success in that it represents a model of dispute resolution.  There are times that a trademark owner has to walk away from the misuse of a mark in a domain because litigation will cost $50,000, but a UDRP can cost under $3000. The UDRP is not a perfect solution, but it has absolutely achieved what it set out to do.  I still do a lot of them, probably one a week.  I think the UDRP may pave the way to other forms of alternate dispute resolution for IP problems.

Dennis Crouch: Law Firm Life: Billing Requirements:  Billing expectations at most large law firms are simply unreasonable.  They disrupt family life and tend to destroy any solid mentoring program.  Today, however, I�m upset with how the long hours spent billing really cramp the ability of associates to begin to build a practice of their own.  The hour requirements were raised after the salary bump several years ago.  Now, there are rumors that another salary jump is in store for BigLaw associates.  In my opinion, rather than increasing associate salaries, firms should compete based on hours.  

Mark Partridge: Eliminate rights in gross mentality:  My second change, admittedly related to the first, would be to eliminate the "rights in gross" mentality. By this, I mean the notion that a trademark creates an absolute and exclusive right. One sees this tendency on both sides of the rights issue. A trademark owner may have the view that no one else may use its mark for any purpose. The junior user may believe there is no infringement if the mark it adopts is not identical to another's trademark.  Both views are mistaken, of course. The rationale for protecting trademarks is preventing deception of the public, not to protect a right in gross. Again the effect of the marks in question on the public mind is critical. Some uses of another's mark are permitted because they do not deceive the public. The use of nonidentical marks on related goods may still be an infringement because they deceive the public.

These are the comments I found most interesting, you should visit The [Non]Billable Hour blog for the full posts.  Each authors' blog can also be seen on the web: Nipper, Sorocco, Schwimmer, Partridge, Crouch, and Homann 

Posted by Douglas Sorocco at 04:41 PM.
Permalink: IP FIVE-BY-FIVE - THE GOOD, THE BAD, AND THE UGLY

SOFTWARE

November 02, 2004

Free Patent Downloading for Windows

I've found it increasingly frustrating to use the USPTO website to view patents.  A new program available at Eliopoulos Intellectual Property Law makes life just a little bit better.

freePat� for Windows allows you to easily download patents and application from the following patent offices: U.S., EPO, Canadian, PCT, UK, French, and German.  You simply type in the number and wait for the result.  Then, after clicking "okay," the pdf automatically opens in Adobe�.

Another useful feature is the ability to use the program with the Internet.  "If you use Internet Explorer, simply right-click on a highlighted patent number and select freePat."  It really is that easy.

The program doesn't look very pretty, and it automatically closes after it downloads your patent, but it's FREE!!

You can learn more about freePat� for Windows, or download it here.

Update 11-3-2004:  There's a new and improved version available now.  This version fixed the only minor problem I found with the software.  Now, it stays open until you're done with all your patents.

Posted by at 10:30 AM.
Permalink: Free Patent Downloading for Windows

SOFTWARE

October 27, 2004

Grokster Officals Settle Separate Copyright Case

Reuters reports:

Officials with the Grokster file-trading network have agreed to pay $500,000 to settle charges they operated a separate music download service without permission, a recording-industry trade group said on Monday.

Puretunes.com allowed users to download unlimited songs for $24.99 a month.  The RIAA claims that the company never got permission from copyright holders.

In addition to the $500,000 by Grokster, the settlement orders Puretunes.com's parent company to pay $10 million.  However, Grokster President Wayne Rosso claims that the company no longer exists.

In other cases, courts have ruled that Grokster is not liable for copyright infringement because it lacks control over users.

When I went to puretunes.com (laced with pop-ups) today, I found a listing of music search results.  The third result claims "Unlimited Music Downloads - $0.99/Month."  If $24.99/month is too good to be true, I suspect that this sponsor is also selling some snake oil.

If you're interested in how the puretunes.com site looked prior to the lawsuit, you can look here.  I think the idea sounds like a good one.  $24.99/month to get the music without breaking the law may entice some music thieves to change their ways.  The real problem with music swapping is that people didn't know they were doing anything wrong in the beginning.  Now that they know, they're addicted to the free music.

Some claim a new business model is in order.  Others claim that it is unfair to force the IP holders to change their business to thwart thieves.

I agree with both positions.  It is unfair to force the lawful IP holders to make accommodations for law breakers.  However, it's probably in the IP holders' best interest to do so.  It's like installing locks on a house.  We shouldn't be required to install locks on our houses to keep burglars out, but we install them anyway.  Like personal jewels or electronics, IP is an asset that requires protection beyond ownership.

Posted by at 11:22 AM.
Permalink: Grokster Officals Settle Separate Copyright Case

SOFTWARE

October 22, 2004

"Grand Theft" Was Stolen

From znet.com:

Game publisher Take-Two Interactive Software confirmed that a purloined copy of "Grand Theft Auto: San Andreas," set for commercial release next week, is making the rounds of "warez" sites used to swap pirated software.

According to a company representative, "We take the theft of our intellectual property very seriously, and we are and will continue to diligently and aggressively pursue this matter."  The company urges anyone with any information about the theft to contact piracy@rockstargames.com.

I find it interesting that people who enjoy playing a game called "Grand Theft Auto" would steal software.  I guess they have no regard for the property of others.

Interestingly, with the list price of $49.99, the crime may not be grand theft in Oklahoma (21 Okla. Stat. 1704, requiring a value of $500).  However, a different statute may apply in this case.  21 Olka. Stat. 1732 deals with larceny of trade secrets.  According to this statute, "the value of the trade secret and not the value of the article shall be controlling."  If the thief shared copies, the value of the stolen secret may easily have exceeded the requisite $500.

For those interested in a legitimate copy of the newest installment of Grand Theft Auto, you can get it at overstock.com for $48.99 plus $1.40 shipping.  It is set to be released next Tuesday (October 26).

Posted by at 03:11 PM.
Permalink: "Grand Theft" Was Stolen

SOFTWARE

October 13, 2004

ashcroft on DOJ IP taskforce

Attorney General John Ashcroft announced on Oct. 13, 2004 the recommendations of the Justice Department's Intellectual Property Task Force.  The task force is charged to examine all aspects of how the Department handles intellectual property issues and report on proposals for future activity.

"Intellectual property theft is a clear danger to our economy and the health, safety, and security of the American people," said Attorney General Ashcroft. "The enforcement of our intellectual property laws is among the highest priorities of the Justice Department, and I created the Intellectual Property Task Force to explore ways for us to strengthen our protection of the nation's valuable intellectual resources. With the recommendations put forward by the Task Force, the Department is prepared to build the strongest, most aggressive legal assault against intellectual property crime in our nation's history."

"I am confident that our nation's creative and intellectual resources will be better protected when the recommendations of the Task Force report are implemented. The Justice Department will have additional tools to fight movie theft and product counterfeiting," said U.S. Attorney Yang. "With the increased protection and new law enforcement resources, our nation's intellectual property will continue to enhance our daily lives and play a role in the continued growth of the American economy."

The IP task force report can be found here in PDF.

Posted by Douglas Sorocco at 05:55 PM.
Permalink: ashcroft on DOJ IP taskforce

SOFTWARE

October 07, 2004

defending IP - what is it worth

Senate Report 108-344, which accompanies the appropriations bill for Commerce, Justice, and State (S.2809), states that:

It is estimated that 50 percent of United States exports now depend on some form of intellectual property protection, compared to less than 10 percent 50 years ago. United States companies lose an estimated $200,000,000,000 to $250,000,000,000 to counterfeiting and piracy each year. Companies' ability to profit from their intellectual property is critical to their growth and, in turn, the health of the United States economy. There is widespread concern -- and the Committee [on Appropriations] agrees -- that not enough is being done to combat the counterfeiting and piracy of American intellectual property. Emphasis added

Another reason why IP (patents, copyrights, trademarks etc) is important.  Strong intellectual property systems enhance competition and grow the economy - they do not stifle it.

Thanks to Promote the Progress for the tip.

Posted by Douglas Sorocco at 02:53 PM.
Permalink: defending IP - what is it worth

SOFTWARE

October 04, 2004

False Accusation Under the DMCA

In Online Policy Group v. Diebold, the Northern District of California court found that false accusation of copyright infringement is a violation of the Digital Millennium Copyright Act (DMCA), even if no legal action is taken by the accuser.

The manufacture of electronic voting machines, Diebold, Inc., was found liable for violating the DMCA because of its false accusations of copyright infringement. Diebold is the first company to be found liable under � 512(f) of the DMCA. This section prohibits the use of threats when the copyright holder knows that there is no infringement.

Internal documents revealing flaws in voting machines were leaked from Diebold.  College students obtained the documents and posted them through e-mail and hyperlink.  Diebold sent cease and desist letters to the ISPs for hosting the documents, claiming copyright infringement.  The ISP asserted that free speech was at issue and refused to take the documents off their servers.

Diebold did not bring suit.  Rather, it defended a suit for injunctive, declaratory, and monetary relief.  However, Diebold violated the DMCA because it knowingly, materially misrepresented that the works were protected by copyright.  Diebold did not have the copyright protection it claimed.  According to the decision, Diebold was unable to show any copying of portions covered by copyright.  While this sounds like a problem of proof, the court found other reasons for the decision.  Some of the excerpts fell within the fair use doctrine. The court stated:

The purpose, character, nature of the use, and the effect of the use upon the potential market for or value of the copyrighted work all indicate that at least part of the email archive is not protected by copyright law. The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold�s electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold�s machines in fact do tabulate voters� preferences incorrectly, the very legitimacy of elections would be suspect.

The court additionally found Diebold had no commercial purpose for the information. Further, the court stated that "the goal of copyright law is to protect creative works in order to promote their creation."

I'm not quite sure what to make of this decision.  On one hand, it seems to further the policy goals of copyright.  But, it seems unfair to the company.  Someone took secret information, and Diebold had no power to stop the information from being widely disbursed.  Maybe there was a cause of action under a tort theory, but it appears that the bad actor is unknown.  I guess my mother was right when she said "life's not fair."  Diebold learned the hard way that even when treated unfairly, it's a bad idea to claim copyright protection when it isn't there.

10-5-2004 Update:  Donna Wentworth over at copyfight posted a link to an in-depth story of the issue at news.com.  The linked story has some of the juicy details.

Posted by at 09:45 AM.
Permalink: False Accusation Under the DMCA

SOFTWARE

October 03, 2004

big mistake -- software IP "just happens"

From Bizz Bang Buzz:

"For many software companies, intellectual property just happens. Programmers write code. Sales staff find customers. Executives book revenues. The company may have a sales strategy and a long-range view of technology, but the legal protection of its intellectual property becomes an after-thought -- a strategic orphan. Big mistake.

Companies that do not identify risks early, if not immediately, pay dearly when the day comes that a potential buyer or investor tries valuing the company's core asset -- its software. The strategy need not harmonize with every syllable of the business plan. However, the software protection regime must be more than a three-line checklist of patent filing deadlines, or the occasional piece of hate mail threatening to sue over pilfered computer code." 

Management of IP assets is the new frontier for management and corporate boards.  Development and protection of IP is a fundamental and strategic role and function of corporate management -- failure to do so is tantamount to misuse of corporate assets and could leave management open to shareholder actions. 

Posted by Douglas Sorocco at 12:09 PM.
Permalink: big mistake -- software IP "just happens"

SOFTWARE

September 30, 2004

Inventor of World Wide Web Proposes Cooperation

I know everyone was thinking of Al Gore, but this isn't a political post.

RedNova.com has an article about Tim Berners-Lee's vision for the future.  If there's anyone to notice, it's him (inventor of the World Wide Web).  He has an interesting take on how to improve the Internet.  He proposes a cooperative effort to develop standards for searching.  He states:

Rather than merely navigating their way via Web links to information related to their interests, Web surfers should be able to manipulate it to intelligently steer them to data with specific meaning to that person

He hopes for mediums that will not only find data for users, but point them to information they will likely seek next.

Mr. Lee is perhaps one of the best innovators of the modern world, yet he passes up huge potential profits (see previous PHOSITA post).  In fact, he states that his new ideas should follow the same path, and "the industry must avoid the temptation to lock up key technologies by demanding royalty payments."

I know I've wished for more advanced searching ability for a while.  I know that LexisNexis and Westlaw both have search capabilities that exceed those on the Web, but the databases of information is limited to legal material.  It would be great to search the whole Web for a word that is within the same sentence (or paragraph, or a certain number of words) as another.  I have confidence that this is not a far-fetched futuristic dream.

Won't we all feel old when we're telling the next generation about the "old-fashioned" searches we used to do?  Of course, I remember when our family got our first computer . . .

10-4-04 Update: The Mercury News also has an article on the issue.

Posted by at 02:51 PM.
Permalink: Inventor of World Wide Web Proposes Cooperation

SOFTWARE

September 18, 2004

where to search for worldwide patent information

Thanks to Navigating the Patent Maze for this link to a terrific site that aggregates the different National patent offices and organizations that provide access to patent information and/or archives.

Just made my searching way easier -- thanks for the tip to this useful resource!

 

Posted by Douglas Sorocco at 06:17 PM.
Permalink: where to search for worldwide patent information

SOFTWARE

September 17, 2004

Rap Music Finally Caught Up...

The 6^th Circuit recently ruled in Bridgeport Music Inc. V. Dimension Films that sampling, the process of using a small piece of another�s musical recording on one�s own recording, is prohibited by copyright law. The court held than any duplication of a sound recording, no matter how minor is an infringement.

Until last week, the rap music industry was largely based on sampling. Many rap songs, are just layers and layers of different samples with a vocalist recording over them. As long as the sample is insignificant, or substantially different from the original recording most courts ignore it under the fair use defense. But no longer -- at least not in the 6th Circuit.

The 6^th Circuit decision may make rap musicians see the cold hard copyright truth. As the technology world and teenagres have known for years and what rap music has just now realized: copying sound recordings is illegal.

This reminds me of the MP3 copyright issue. MP3's are smaller, lower quality copies of original sound recordings. One cannot duplicate them without license to do so, and certainly cannot distribute them. Rap music was doing essentially that. A rap artist will take a snippet from an old song, lower the pitch, maybe play it slower, but in reality, it�s still the original that�s been copied. MP3's are mathematically different songs from the original but courts have found them to be copies nonetheless. I think it�s surprising that courts are just now seeing the reality that sampling, even if the copy is altered from the original, is still a form of stealing copyright protected music.

The real question now is, how will rap musicians cope with the loss of illegally copied music?

My suggestion - learn how to play an instrument or two.

by Brandon Kennedy

Posted by at 03:27 PM.
Permalink: Rap Music Finally Caught Up...
| Comments (3)

SOFTWARE

amazon, netflix, and overstock sued for internet visitor tracking patent infringement

According to an article in eWeek, BTG plc, a London-based patent acquisition and licensing company, has filed suit in the U.S. Federal Court in Delaware against Amazon.com, BarnesandNoble.com, Netflix Inc. and Overstock.com. According to BTG, they are asking for unspecified damages and an injunction against continuing use of its tracking technology embodied in patent Nos. 5,717,860 and 5,712,979.  Both patents were filed on Sept. 20, 1995.

According to the abstract of the '979 patent, the claimed technology covers:

A method and apparatus for tracking the navigation path of a user that has been directed to a second site on the WWW from a first site on the WWW. A URL is received at the second WWW site when the user is directed from the first site to the second site. At the second WWW site, information representative of an identity of the first WWW site is captured by identifying a first code in the URL. A destination web page is determined for the user, and a revised destination web page is formed by attaching a second code representative of the identity of the first WWW site into at least one selected web page link associated with the destination web page. The revised destination web page is then transmitted to the user.

Seeing as Stephen over at The Invent blog has recently posted about his visitor tracking results, perhaps BTG may find some other targets?

Posted by Douglas Sorocco at 12:45 PM.
Permalink: amazon, netflix, and overstock sued for internet visitor tracking patent infringement

SOFTWARE

September 15, 2004

TiVo/ Netflix Partnership Presents Security and Licensing Issues

TiVo and Netflix have allegedly been planning to form a partnership that has been long awaited and suggested by many. The partnership seems logical as Michael Ramsey, TiVo chaiman, is a Netflix board member. The purpose of this partnership would be so that subscribers of both services could download Netflix movies over the internet directly to their TiVo boxes. This would eliminate all the time and hassle involved of waiting for DVDs to arrive in the mail. Just imagine...now you won�t even have to walk to your mailbox to watch a movie (and the term couch potato will take on its most literal meaning yet).

This partnership would be able to accomplish high (or at least decent) quality versions of its movies right on the TV, much to Hollywood�s dismay. Obviously, Hollywood will not cooperate until there is a secure content security system. It seems that TiVo is one step ahead here. According to TiVo�s spokesperson, Kathryn Kelly, TiVo has already developed a security technology called TiVoGuard, and this technology has already been approved by the FCC.

Licensing, however, may not be so simple. Hollywood is notorious for taking years to negotiate simple licensing agreements. One recent example of this is that Starz Encore Group has been negotiating with Hollywood for four years now in order to extend its film rights to the internet. One driving factor for delays by studios in Hollywood may be that they would receive less of the revenue associated with internet licenses than they would for mail rentals or even good ol� fashioned walk-in rentals. This fact is evinced by the revenue percentage to Hollywood from pay-per-view and similar contracts, compared to actual movie rental markets.

It seems that technology is not the hold-up in the TiVo/ Netflix partnership. The details regarding licensing agreements and anti-piracy security systems will be a hurdle that will take a lot of time to overcome.

The moral of this story: Keep your Blockbuster card for a little while longer.

Kelsey L. Buntyn

Posted by at 01:09 PM.
Permalink: TiVo/ Netflix Partnership Presents Security and Licensing Issues

SOFTWARE

September 12, 2004

patent issuance/publication RSS feeds

I'm back!  Rested, check.  Re-energized, check.  Ready for the stacks in my office, no-no-no!

To kick things off -- GrepLaw has a useful post on specific RSS feeds (from Varchars, previously blogged by PHOSITA) that aggregate and publish the issuance of patents to specific companies, namely:

• Apple Computer Patents,
• Apple Computer Applications,
• Google Patents,
• Google Applications,
• Microsoft Patents,
• Microsoft Applications,
• Yahoo patents, and
• Yahoo applications. 

RSS feeds are beginning to be more and more useful to keep track of patent information for both practitioners and clients.  While Varchars tool is quite useful, it is somewhat difficult for a non-computer techie to implement.  Therefore, the PTO needs to be encouraged to develop RSS tools to supplement its already useful website to bring keyword searching, company tracking and classification tracking (for example) into the RSS world.  It would be a fantastic tool and would make those of us who used to read the paper Gazettes envious!

 

Posted by Douglas Sorocco at 08:16 AM.
Permalink: patent issuance/publication RSS feeds

SOFTWARE

August 26, 2004

Criminal Enforcement of Peer-to-Peer Piracy

Patent Cafe reports:

Federal agents searched five residences and one Internet service provider to investigate illegally distributed movies, software, games, and music shared over peer-to-peer networks.

U.S. Attorney General John Ashcroft said "The Department of Justice is committed to enforcing intellectual property laws."

U.S. Attorney Kenneth Wainstein added "It is illegal to trade in copyright-protected materials on the Internet. This is theft, plain and simple. If you are engaged in this behavior, you are on notice that you are not as anonymous as you may think."

The maximum criminal penalty for a first-time offender is five years and $250,000, in addition to forfeiture and destruction of infringing copies and all equipment used to manufacture the pirated materials.

This is surely great news to the entertainment industry, but it's probably pretty scary for all those Millennials out there who have been freely copying music for years.  The development of the law in this field will be interesting, with several questions.  Is an MP3 a copy of the original?  Is an MP3 a derivative work?  What if someone is copying their CD from his home computer to his office computer?  Could that be fair use?

This topic will certainly be interesting over the next few years.  I'm thinking that I may invest in Internet streaming music, which may be a great alternative to the current choices of downloading music and buying a CD.  I bet it could be made copy-proof somehow, and still allow the proper royalties to be paid to the creators.  We're on the front line of a new development in music.  In the past, technology has taken us from phonographs, to LPs to 8-tracks to cassettes to CDs.  Each new technology producing sound superior to its predecessors.

While the growing pains of the developments may temporarily hurt the entertainment industry, profitability will not be lost.  After all, the laws of copyright and patent are intended to encourage creativity and innovation for the good of the people.  If nobody makes money on creativity, creativity will cease.  Our founding fathers considered this and included a clause in the Constitution "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."  While the framers of the Constitution never considered digital file sharing, copyright law has consistently protected authors and will continue to do so.

Posted by at 08:47 AM.
Permalink: Criminal Enforcement of Peer-to-Peer Piracy
| Comments (1)

SOFTWARE

August 21, 2004

friday fun (acutally, saturday): google olympic logos

Do any googling lately?  Notice the cool Google Olympic logos, like this one:

Wondering who these guys in sheets are but you don't have a classical education?

Have no fear:  Google Blogoscoped to the rescue.  According to the Blogoscoped, these guys are:

First of all there's Zeus (aka Jupiter) of ancient Greek mythology, throwing lightning bolts.

The bearded man holding a trident is Poseidon (Neptune in Roman mythology), the god of the sea, and brother of Zeus.

Third in the group is Athena, among other things goddess of war, and patron goddess of Athen. Though she's active in the Google logos, women weren't permitted to compete in the ancient Olympics. 

Find all of the Google Olympic logos here. 

Posted by Douglas Sorocco at 09:36 PM.
Permalink: friday fun (acutally, saturday): google olympic logos

SOFTWARE

August 18, 2004

Tackling apple: will ipod remain on top?

It seems that everyone wants to take a shot at the iPod.

Sony is attempting a new model to compete with iPod.  However, the device needs improvement.  The Chicago Sun Times stated: "Sony's Network Walkman NW-HD1 is as clunky as its name. The gadget looks great, but it's ruined by a bizarre insistence on a proprietary file format, a confusing navigation scheme and software that tries to be flashy but is incredibly frustrating."  Although the Sony version will also cost more, it looks like competition for iPod is inevitable.

Virgin Mega is also attacking Apple.  According to Mac News World, Virgin filed a complaint with the French Competition Council, attacking Apple's refusal to license its digital rights management technology (FairPlay).

On Monday, RealNetworks announced that iPod compatible songs can now be purchased for 49 cents - less than half the price on iTunes.  FindLaw.com has an article showing that Apple isn't impressed.  "Apple has accused RealNetworks of using the 'tactics and ethics of a hacker.'"  Personally, I think competition is good for the consumer.  If Apple has adequate protection of the intellectual property associated with the iPod, Apple will be able to fend off these attackers.

Posted by at 08:59 AM.
Permalink: Tackling apple: will ipod remain on top?

SOFTWARE

August 16, 2004

wicked cool waste of time

....ahhh, I mean wicked cool web-link visualizer.

Thanks to Josh Rubin over at Cool Hunting for the link to TouchGraph GoogleBrowser.

Enter in a URL and you get a 3D visualization of all the incoming and outgoing links to that site. Click on one of the sites listed, and it reconfigures that sites links as well.  Zoom in, zoom out and look at the data from different zoom angles.  Some of the maps make for interesting graphical elements as well.

DCR's connections (DCR is yellow "Du" -- view zoomed out with short names for clarity)

Who are you connected to?

Posted by Douglas Sorocco at 10:59 PM.
Permalink: wicked cool waste of time

SOFTWARE

YOU LIGHT UP MY LIFE!

Apple Computer is, once again, trying to light up their customer's lives. Literally.

From ZDNET:

A patent application [non-pdf, PDF here], listing Apple as the assignee and Duncan Kerr and Steve Hotelling as the inventors, was published on the USPTO site late last week. The abstract described a computer with an illuminable housing and a light device--red, green, blue and white light emitting diodes "disposed" inside the housing.

The filing describes a "chameleonic" electronic device which can "alter its visual appearance."

Figure 12 from the application shows an iMac style computer that appears to glow.

 

Posted by Douglas Sorocco at 05:58 PM.
Permalink: YOU LIGHT UP MY LIFE!

SOFTWARE

August 12, 2004

ELVIS LIVES -- HIS COPYRIGHTS, THAT IS....

Elvis has left the building!

The debate is on in Europe right now about the copyright extension efforts that are taking place. 

What is the fuss all about?  Harmonising European copyright term with the term currently available in the U.S. -- life +70 years.  From Project Gutenberg: 

The most important question when publishing a book on the internet is whether the work is still protected by copyright. This depends on the applicable copyright term.

The term of copyright protection in EU member states has been harmonized by Directive 93/98/EEC. The following rules determine the duration of protection for books.

If the country of origin (see Country of Origin) is a European member state or party to the agreement creating the European Economic Area, or if the author is a Community national, then the following copyright terms apply (see Article 1 and 7 par. 1 Copyright Term Directive):

1. If the author of the work is known, 70 years after the death of the author;
2. In the case of a work of joint authorship, 70 years after the death of the last surviving author;
3. In the case of anonymous or pseudonymous works, 70 years after the work is lawfully published. If the pseudonym leaves no doubt about his identity, or if the author discloses his identity during the 70 years after the work was lawfully published, the work is protected 70 years after the death of the author;
4. If national law allows a legal person to be rightsholder or contains specific provisions on copyright in collective works, 70 years after the work is lawfully published, if no natural persons have been identified as authors on the work;
5. If a work is published in separate parts and the term of protection runs from the time when the work was lawfully published, the term of protection runs for each item separately;
6. In the case of works for which the term of protection is not calculated from the death of the author or authors and which have not been lawfully made available to the public within seventy years from their creation, no protection exists;
7. If a term of protection already running in a Member State on 1 July 1995 is longer than the corresponding term provided for by the Term Directive, the longer term applies (Art. 10 par. 1);

These terms apply to books protected by national copyright legislation in one member state on 1 July 1995. There exists doubt whether national copyright legislation includes the Berne Convention.

Else the following rules apply (see Article 7 Copyright Term Directive):

1. If the country of origin is a member of the Berne Convention, the copyright expires on the date the copyright expires in the country of origin, but the protection term may not exceed the European rules described above.
2. If the country of origin is not a member of the Berne Convention, other laws may apply. This can be checked on a case by case basis, since this is probably an exception.

All terms will be calculated from the first day of January of the year following the event which gives rise to them (Article 8 Copyright Term Directive).

Anti-European copyright extension arguments are set forth on many sites, but a current weblog post from BoingBoing links to Index for Free Expression:

Faced for the first time with losing significant back catalogue profits, the industry is lobbying to change the law. The industry describes the law as a "loophole". In fact it is anything but.

For every one recording that has the power to reach number three in the commercial charts fifty years after its original release, there are hundreds if not thousands of tracks that do not.

Although these recordings no longer have any commercial value to their rights holders, they are of tremendous value in terms of our cultural heritage. But the mechanisms of copyright law mean that, should the European Parliament choose to heed the music industry, keeping Elvis out of the public domain for a further 45 years or even more, the King will drag down with him this huge body of commercially worthless but culturally significant work.

What do y'all think?  Should copyright extension be retroactively granted?

 

Posted by Douglas Sorocco at 01:30 PM.
Permalink: ELVIS LIVES -- HIS COPYRIGHTS, THAT IS....
| Comments (1)

SOFTWARE

August 05, 2004

City of Munich Freezes Its Linux Migration

Yesterday I received disturbing news from the CTO of Munich, Wilhelm Hoegner. As previously mentioned, there is a rising concern that software patents could stifle development of open source worldwide. FFII has complete coverage of what is going on in Europe." (FFII stands for Foundation for a Free Information Infrastructure.) Reader jmt(tm) writes "The call for bids was supposed to be published in late July, but the Munich Green Party had pointed out about 50 possible patent conflicts which the city wants to evaluate before moving on.

Yesterday I received disturbing news from the CTO of Munich, Wilhelm Hoegner. As previously mentioned, there is a rising concern that software patents could stifle development of open source worldwide. FFII has complete coverage of what is going on in Europe." (FFII stands for Foundation for a Free Information Infrastructure.) Reader jmt(tm) writes "The call for bids was supposed to be published in late July, but the Munich Green Party had pointed out about 50 possible patent conflicts which the city wants to evaluate before moving on."

Posted by Douglas Sorocco at 08:47 AM.
Permalink: City of Munich Freezes Its Linux Migration

SOFTWARE

May 22, 2004

TUG OF WAR IN EUROPEAN ADOPTION OF STANDARDS FOR THE PATENTING OF SOFTWARE

PATENTING SOFTWARE TO GET EASIER IN EUROPE

According to an article in ZDNET UK, the European Council on May 18th, 2004 voted to adopt "controversial changes" to the European Union's Software Patents Directive.  According to commentators, these changes pave the way for widespread patenting of software in Europe.

Why controversial?  According to the article:

Objectors say the draft's wording was vague enough to effectively legitimise software patents, which would lead to patent warfare dominated by large corporations, already the situation in the US software industry. This argument was persuasive enough to convince MEPs to introduce a number of important amendments before approving the directive late last year. 

Another ZDNET UK article published May 22, 2004 goes even further to describe why European economists believe such software patents will be of no benefit to anyone other than patent attorneys.

In an open letter to the European Parliament issued on Monday, 12 economists from institutions including the University of London, the Oxford Internet Institute and the University of Sussex urged that the proposed Directive on the Patentability of Computer-Implemented Inventions be rejected in its current form when it comes for a vote on 1 September. The term "computer-implemented inventions" includes, but is not limited to, software.

While they said the European Commission's goal of creating a more consistent patent framework for Europe was laudable, the economists said a better investigation must be made into the potential economic impact of making it easier to patent software innovations.

The current draft legislation would be a recipe for disaster, they said, and would encourage large companies to build up an arsenal of patents that they could use to fend off competition from smaller companies. This technique is common in the US, where the patenting process was liberalised several years ago.

"While clothed as an administrative clarification, the proposed directive will provide opportunities and incentives for the construction of extensive portfolios of software patents," the economists wrote. "The exploitation of these portfolios will have serious detrimental effects on European innovation, growth and competitiveness." 

Simple question: even if "extensive portfolios" of software patents were to be created, why is this detrimental?  Wouldn't the same argument apply to genes, chemicals, motorbikes, or even the ubiquitous widget?  Why are software patents any different than a patent for a new process of making sulfuric acid?

Posted by Douglas Sorocco at 04:53 PM.
Permalink: TUG OF WAR IN EUROPEAN ADOPTION OF STANDARDS FOR THE PATENTING OF SOFTWARE

SOFTWARE

May 03, 2004

CAN-SPAM LEGAL WEBSITE LAUNCHED

CAN-SPAM LAWSUIT CENTRAL

Great resource for Internet law: Interested in learning the ins-and-outs of the CAN-SPAM law of 2003?  Gigalaw.com has started a website devoted to the legislation, its implementation and interpretation. 

5/4/04 Update:  The folks over at Church of the Customer weblog have posted an amusing take on one groups dismay with the CAN-SPAM act:  entitled "