Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
On the surface, what's at stake here is the future of the BitTorrent search engine, which was previewed back in May of this year. The agreement by BitTorrent (the company) is to obey the existing law (DMCA) with regard to takedown notices for content deemed illegal that shows up on their search engine. For the most part, this is a no-op. The company more or less had to do this to stay a legal enterprise, and is putting a good face on the inevitable. Presumably, few people trading, say, first-run movies are going to be stupid enough to put their torrent sites into the index of the search engine anyway. So in the end, unless Hollywood somehow figures out a way to put the protocol genie back into the bottle this is going to have just about zero impact on the trading of content via BitTorrent (the protocol).
Looking a layer deeper, this story is about whether or not the Cartel will allow companies that kowtow sufficiently to go legit, especially after showing they can smash Grokster (the company - no effect on music trading of course). As with any protocol, BitTorrent software can be used for any number of purposes. If the Cartel ever want to have a distribution protocol and network for their content they'll have to buy or build something. if BitTorrent (the company) wants to be part of that buy/build answer - and I bet it does - then this kind of agreement is absolutely necessary table stakes.
Jennifer Urban of USC's Intellectual Property Legal Clinic and Laura Quilter of UC Berkeley's Boalt Hall have released a summary report examining over 900 DMCA take-down notices collected from the Chilling Effects project. The report finds that nearly 1/3rd of all notices are improper and potentially illegal. The full report will be out in March 2006.
An anonymous copyfighter pointed me to this story on the BBC detailing the Sony debacle. The story by Canadian law professor Michael Geist paints a picture of a bad situation spiraling totally out of control. I particularly like the unnamed Cartel exec doing his best Michael Brown "how wrong can you get in one sentence or less" impression. Trust me, bozo, consumers may not be able to describe what a 'rootkit' is, but they've heard the word enough to know it's Something Bad and when your product gets linked to public scare words like 'rootkit' and 'spyware' you are in a heap of trouble.
Plus, do you really want to be the one getting called out on the carpet by the US Department of Homeland Security's assistant secretary of policy? His words ought to be tattooed inside the eyelids of every Cartel exec: "it's very important to remember that it's your intellectual property - it's not your computer." Amen.
Geist points out that other publicity debacles (e.g. the poisoned Tylenol scare) led to long-term changes in marketing and business models by the affacted industries and calls on the music industry to take this to heart.
I've been writing for some time about the way in which the Cartel has gone about controlling the language used in the Copyright Wars - and why I use terms like "cartel" in response. This suit has the potential to seroiusly shift the language-scape. If the consumer zeitgeist begins to see "DRM" and "spyware" as synonymous terms, there could be trouble that far exceeds the tar pit Sony seems to be sinking into.
Michael Geist points to a new decision from Canada's Supreme Court ruling that Lego couldn't use a claimed trademark on the interlocking shape of its blocks to insulate them from competition after its patent expired. The ruling echoes a recent U.S. Supreme Court decision, TrafFix Devices Inc. v. Marketing Displays Inc. (2001), that an expired patent couldn't be extended by a claim that the design had acquired trade dress distinctiveness.
Lego (Kirkbi) had patented the Lego system of interlocking blocks and now claimed that even after the patent expired, the "distinctive orthogonal pattern of raised studs distributed on the top of each toy-building brick" had become "LEGO indicia" due protection as an unregistered trademark. Without this protection, Kirkbi protested, Mega Blok would be able to free-ride on the popularity established by Lego's hard work and reputation for quality.
One must start from the problem the appellant faced when its patents expired. ...[T]he very cleverness and flexibility of LEGO technology, of the combination of studs on top of the brick and tubes under it, had almost turned "LEGO" into a household word. Source and product became identified. LEGO bricks, for many, came to designate these small colourful building blocks, with their clever locking system. But when the patents expired, the LEGO technology fell into the public domain. The LEGO name, whether on the product, on its packaging or in its advertising, remained protected, but the monopoly on the wares themselves was over. The monopoly had been the key to the building up and preservation of LEGO’s market share, and so Kirkbi employed a number of different means to protect it, one of which was the assertion of a trade-mark.
The court properly recognized that the patent confers a limited monopoly. In Canada, as in the United States, patent protection is temporary: "Patent protection rests on a concept of a bargain between the inventor and the public. In return for disclosure of the invention to the public, the inventor acquires for a limited time the exclusive right to exploit it." Entry into the public domain after the patent's expiration is a core part of the public-private bargain -- a bargain that can't be a