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.
There, two servers were seized - servers alleged to be "the command and control computers of two Zeus botnets". As you may know, a botnet is a network of computers (usually PCs running Microsoft Windows) that have had vulnerabilities exploited to allow remote attackers to gain control. Once in control the subverted PCs are made part of a network (botnet) that can be used for a variety of illegal purposes, including DDOS attacks, spamming, spreading worms/viruses, and crack/infiltration attempts against other machines. Usually in a botnet each member PC operates independently but periodically checks with controlling servers for new instructions, updated malware, and so on.
The Copyfight angle appears to be that Microsoft made the assertion (and presumably convinced a judge) that it was entitled to enforcement action against these Zeus botnet servers because one effect of the botnet was to "violate [Microsoft] copyrights and trademarks" by taking over the Windows PC. It's an interesting twist but one I haven't seen before.
I'm a little bit conflicted here - I don't generally think that ends (even good ones like silencing botnets) justify means, including potentially novel expansion of copyright and trademark enforcement. Looking back in history (e.g. see this story from Sept 2011) it appears that Microsoft has used other means in the past to move against botnets. So this may be a new tactic in their ongoing fight, or it may be just new-to-me. Does anyone know if this is truly a novel application of the law?
If you think that traveling with comics (or manga) isn't a big deal then you haven't been following the news these past few years. People have been stopped, denied entry, had their possessions searched and seized, and even been brought to trial over these kinds of materials. The rights you may have in your home country (particularly if you live in the US or Japan) may be very different from the rights you have on entering another country, even a democratic nation such as Canada or an EU member state.
The CBLDF page contains a set of links to guides on four specific topics, covering comic art, pornographic anime/manga, electronic devices, and US border privacy. Each is worth a read and as always if you have questions make sure you talk to a lawyer - these are advisory notices based on experience, not legal guidance.
As Scott Fulton explained for ReadWriteWeb, HBO managed to get itself known now for having a young college student handcuffed and dragged away by local cops. This student - Cristian Alvarez Rojas - is apparently accused of being behind a site called Cuevana.tv which itself is accused of being a violation of a relatively new (April 2010) local intellectual property law. Except that Rojas may not have broken the law because he kept the site's resources outside of Chile. The law may not cover this situation.
It's unarguable that Chile, like much of South America and vast swathes of Asia, does not have respect for American copyrights. Illegal copies of videos are sold in the streets or in cheap storefronts in Chile as they are in China. Police efforts to crack down on the retail end have proven largely futile. The argument, though, is that these street copies are made from downloads provided by sites like Cuevana.tv. Even though the site isn't making Rojas any money, if it is a source feeding the illegal retailers then it's clear why the Cartel would want it shut off.
But having a college kid dragged off in handcuffs is bad juju and horrible PR, regardless of how accurate or justified the reasons behind the action may be. Just like extraditing a kid from the UK is a terrible move but the Cartel seems bent on doing it anyway. Legally right != smart, guys. The people who are buying those street-copy DVDs are your natural customer base. Do you want them to think of you as 'the strong-armed gringos"? Do you think that being known that way will help sales of your legitimate product?
I certainly don't. But then I doubt anyone from the Cartel would ever hire me anyway.
What do the US Supreme Court, the ACLU, the Cato Institute, and the AMA all have in common? Today the answer is: "unanimous opposition to the notion that mental processes constitute a violation of a patent, or are the proper subject of a patent."
Lee, who has written about this case for Ars before, played a small part in the Cato institute amicus brief, and is a strong advocate for the invalidity of the patents. I have not yet read the opinions in the case, but based on the summaries I believe I would have to side with Lee and the other amicus parties. To put it bluntly, this looks ridiculous on the face of it and it's not clear to me why the patent was issued in the first place, or why the lower courts upheld it.
The key issue appears to be that the Mayo Clinic decided to stop using Prometheus's product and started doing its own testing; in response Prometheus argued that in using the separate Mayo test doctors would still "[think] about the correlations described in Prometheus's patent" and that this would itself constitute infringement. SCOTUS disagreed, asserting that the activities of measuring thiopurine metabolites and from that determining appropriate drug dosages was, in the words of Justice Breyer, "well-understood, routine, conventional activity previously engaged in by scientists who work in the field." And thus, unpatentable.
Unfortunately, although I believe this decision to be correct, I do not think the verdict is going to do much to untangle the present snarl of what is or is not patentable in the US. It has become increasingly clear in the past decade that decisions such as in re Bilski have done nothing to clarify what ought to happen. Instead, the waters have gotten more and more muddied.
The court rejected Righthaven's claim that online excerpting was copyright-infringing action, and also noted that a site which permits user comments is not automatically liable for material posted in those comments, even if the site is not a formal candidate for DMCA Safe Harbor provisions.
Righthaven is often referred to as a copyright troll for its practices of suing far and wide on dubious legal theories; for example, see this Boingboing post from last December on Righthaven. Courts have steadily dismissed and dismantled the company's claims and legal strategies and the company is now in (financial) ruins. Good riddance to bad garbage.
Seriously, how fucked up is this? I think it's important to realize that "cutting off peoples' Internet access" doesn't just mean you can't download files. My kid requires the net to do his homework, which is posted by his schoolteachers on a series of blogs. My landline phone goes over my cable wire and is provided by my ISP. I doubt I'm unique in these things; Doctorow lists several other activities that modern life assumes people will have Internet for, such as banking and participating in political life. Losing Internet means losing all these and more.
I am reminded of a long-ago conversation Bruce Sterling and I had about his novel "Islands in the Net." The gist of it was the central thesis that access to the network was about to become like electricity - it's just assumed and you only tend to notice it when it's not there. I suspect that when the Cartel starts getting its way a whole lot of people are going to find this sudden absence troubling. Maybe if a lot of them are in the US Congress then we'll see some course-correction. But I tend to doubt it.
For these studies, the FMC worked in depth with five people in the industry who make their living full-time with music. Using data provided by the professionals, the FMC then graphed and wrote up explanations of how money flowed in, from where, etc. As with any case study the results aren't necessarily broadly interpretable but it's nice to have some detailed data to go with the more general surveys we usually see.
This is sort of the canonical prior art: if you can show that an invention from a patent was in fact already known publicly then the patent can't stand. You can still patent new inventions related to the idea - for example, Apple's patent on providing word-by-word suggestions for auto-completion as users type is unlikely to be invalidated simply because someone described the general form and function of a tablet computer in 1994.
Still, Fidler's writings, videos, and demonstrations were public; the fact that they weren't patented doesn't lessen their potential value as relevant prior art. There's some chance as Rosenwald describes it that a good lawyer could show how Apple people were exposed to and potentially influenced by these ideas. Apple probably would still maintain the majority of its patent position even if certain design and foundational patents were invalidated, but its position would be significantly weaker. That may be why rumors are starting to float that Apple may want to settle. A settlement would foreclose the possibility of the patent portfolio being weakened and could leave Apple in a strategically stronger position than another partial win a full-length court case.
Earlier this week, Yahoo! filed suit against Facebook alleging that it infringed on 10 different Yahoo! patents. Normal course of business, except for the timing and the companies involved. Facebook is involved in trying to go IPO, and a big-name public lawsuit could monkey-wrench the whole works. Yahoo! is floundering desperately trying to find someone to lead it and some business in which it can compete, or at least have enough going for it to be worth someone bigger buying.
The meat of the suit seems broad - Yahoo is hitting at Facebook on ad generation, customization, and aspects of social networking such as creating news feeds, messaging, and managing comments. I haven't read the patents in question, but I wanted to comment on how the suit seems to be stirring up the geek community by looking at some items that appeared in response to the suit that gave me the head-scratching WTF pause.
Uh... yeah. I don't even know where to start with that one. Even if the public somehow figured out what was happening, which I wouldn't bet on, what would they care if Big Corporation A pays Big Corporation B some money? It's not like anyone's Facebook pages are going to go away because of this. Facebook will probably pay up and may change some of their features to get around patent clauses, but honestly Facebook changes your pages so often and so arbitrarily that nobody's going to notice a few more changes.
Meanwhile, Gizmodo is screaming that "Yahoo Is Out To Burn Down The Web". Uh, guys? Facebook isn't the Web, however much Facebook would like you to believe it is. And if Yahoo's patent is valid and enforceable against Facebook then yes they may well try to enforce it against other sites. Which would be a tragedy exactly... how?
The article's author, Mat Honan is grotesquely misinformed about how patent protection works. He claims that "Facebook is built on its own unique codebase" which is probably true and completely irrelevant to whether or not they're infringing the patent. Let me 'splain... no, is too complicated, let me sum up: whether or not you wrote your own code from scratch isn't at issue here. What's at issue is what that code does. Also, Honan wails that if this is upheld then "Yahoo [would own] personalization outright." Oh, puh-leeze. Patents protect inventions; anyone who thinks Yahoo patented every single possible invention related to personalization is... wait, named Mat Honan? What does it even mean to "own" personalization? Get a grip, Mat, use your inhaler, take a Valium.
And finally we have Andy Baio writing for WIRED about how Yahoo "weaponized" "his" patents. Oh, cry me a river. First of all, his patents aren't at issue here, as he admits. (Though he's probably not responsible for the attention-grabbing headline on his column.) More to the point, Baio is whining that Yahoo actually got patents while he was there and even though he hates patents he helped them get some and now they're actually (*GASP*) using patents in an offensive way, not just in the defensive manner he thinks he was promised.
Let me find you some tissues. The very first lecture I ever attended on patenting in a corporate environment (at Texas Instruments in 1989 if anyone cares) covered the notion of "sword" and "shield" patents and how it was only a distinction of convenience. If you didn't get such information, or weren't motivated to understand what you were doing when you helped Yahoo apply for patents, my sympathy for you is precisely zero. No one is required to sue anyone in order for a patent to be valid (unlike, say, a trademark) but that option is always there.
Yes, it sure would have been nice if Yahoo could have turned its innovations into wildly financially successful products so it didn't care about who was using its patented inventions. But it didn't, and it does, and these suits are just part of the death throes of the company. Perhaps one day all that will remain of Yahoo will be a few patents that have been upheld in court and that someone will pay money to acquire. So it goes. Between then and now it'd be nice to see less hysteria and more clear-headed analysis on the topic.
The live launch includes a "90 days free" enticement, but is limited to web-enabled iOS devices only. They promise Android support "coming soon". 20 channels, 40 hours of DVR storage, and the ability to use the service on up to 5 devices.
Contrary to my initial impression the customer doesn't buy an Aereo antenna - instead they connect to the company's antennas over the Web, with no new physical devices in or on the consumer's home. In addition, you don't have to install a new app - apparently you can connect using the built-in iOS media-viewing software. After the 90-free, the service costs USD 12/month and is geographically limited to New York television marketplace. It's not clear from the press release if that means the physical limits of the city or whether it'll be available to people outside the area who can receive New York City broadcast channels (about half of New Jersey and Connecticut I believe).
If anyone tries out the service please do leave a comment with your impressions.
You may recall I blogged about Konrath's claim that he garnered $100,000 in profits from his e-books in January of this year. Obviously he's someone heavily invested in Amazon's publishing model and as we discussed, he's also someone who pays careful attention to prices and how an author can maximize income by carefully discounting and tracking the effects of deals on sales. The agency model for pricing, which is at the heart of the collusion case, is just about the opposite of that - it handcuffs retailers and gives pricing power to the agency partners - the aforementioned big publishers. You can imagine this as being the digital equivalent of a poke in the eye for guys like Konrath and Eisler, and they have some choice words in response.
In a blog entry titled "Barry, Joe, & Scott Turow" they go line-by-line through Turow's dire news and translate it into more or less plain-speaking English. For example, where Turow sees Amazon "destroy bookselling" they point out that lowering prices tends to increase sales and in general selling more books is (should be) what publishing is about. They go on at some length - you should read it for yourself. They're pretty contemptuous not just of Turow and his blog post, but of the whole big-house/big-author publishing business and its failures to anticipate, react, or adapt to the sea changes introduced by self-publishing and e-books.
But those are problems that need to be dealt with openly and head-on, not by some (potentially illegal) back-room deal. Remember that the big losers in these collusion situations are the readers who are getting swindled. And if DOJ puts a stop to that then more power to them, I say.
In the column, called "The Down-Low on Exclusivity Clauses", Long talks about Amazon’s KDP Select program. This program, which Amazon introduced at the end of 2011, allows authors to sign up to have their books placed in the "Kindle Owner’s Lending Library". This (virtual) library allows Kindle owners to "borrow" one book per month. That is, they can download a free copy with no due date of any book on the list. Since the reader doesn't pay, Amazon has offered an enticement to e-book authors to have their books in the library. Amazon will put forward a pool of money and each time a book is borrowed the author of that book gets something from the pool.
According to Long's column, in January authors were getting USD 1.60 per borrow. That's not much, but it's not a huge amount less than most authors get on e-book sales, and in theory the author can get borrow money on top of royalty money. That's the upside. The downside is exclusivity. If you're being borrowed on a Kindle then you can't be read on other devices, including Kindle apps that run on other devices. In effect, you're agreeing to have your book locked to one device in order to help Amazon sell more devices that will (work with me here) further lock in readers. Awesome.
As usual in these sorts of situations where an author sits on the publicity/popularity curve says a lot about how good this deal is. If you're a New York Times bestselling author then your readers are likely all over the marketplace and single-device lock-in is bad for you. If you're an unknown and need to build readership numbers, then the extra publicity of being in the library may be a boost. But then again, what do you do if your unknown book turns into a hit and readers can't get it elsewhere? A new author may be crippling her audience reach by agreeing to this lock-in, without even knowing what the potential reach of that audience is.
Long tries to end her column on a balanced note; as she says, the situation wasn't exactly a rose garden in the days before e-books. Perhaps that's her professorial (she teaches at Boston College) fairness showing through. Me? I have only sympathy and faint contempt for people who feel they need to buy into someone else's exclusive locks. This may be why I don't own an e-book device myself.
Copyfight reader Jasmine Hall sent me a pointer to an article recently posted on a site she works for, onlinecolleges.net. The site appears to be a clearinghouse of information and resources for people who are looking to pursue online higher education at for-profit or non-profit electronic universities. Like any in-person university, students at these institutions need to prepare papers and other work to turn in for classroom grade. So what does onlinecolleges.net think students ought to know about copyright?
The article is titled "15 Copyright Rules Every Student Should Know" and is credited to "Staff Writers", of which I have to assume Ms. Hall is one. Encouragingly, the first topic in the list is "Fair Use." Readers are instructed that fair use and educational purpose provide some exemptions to copyright restrictions and imply that sampling is fair use. This is, of course, something that is still contentious in several legal arenas but for the non-commercial purposes of educational materials I suspect most people will expect that student works don't violate copyright. It's heartening to see fair use as the first topic.
Later items in the list note that sampling even from DVDs and public sources can be covered by fair use, but encourages students both to check use guidelines that may be published with a work they want to sample, and to provide appropriate credit. Again, both are key topics and students need help in treading a middle ground. Wholesale appropriation is often doubly inappropriate in an academic context where plagiarism and other forms of intellectual theft can be a problem. The article tries to give numeric estimates for what would be considered an appropriate sample (250 words, 30 seconds of music). Again, I think this is well-intentioned but probably should be tempered by encouraging students to consider contexts. If I'm using a 30-second clip of sampled music as, say, a background to a video I've created that's a different thing than using a 30-second segment of someone else's music in my own composition. Unless, of course, it's a remix... well, you see the problem.
I think this is a challenge not just for Ms. Hall's list, but for any set of guidelines. Copyright fluency is an important skill for students to learn and one set of guidelines is a good start - I like this set overall. Even with a good set of guidelines, I can't help feeling that strong cautions should be given to students who may feel that one set of guidelines teaches them everything they need to know.
It's sad and ironic that these stories always seem to appear around the same time of year. Last March I noted it was three years, and now it's four in which we've been unable to break the logjam around drug patents, pricing, profits, and people dying.
None of the issues have changed: patents are still a government-created monopoly that is limited in some ways and very broad in others. Drug companies still use patents to ensure they have monopolies on money-making medicines. And people still need medicines in order to stay alive with serious conditions such as HIV/AIDS or in this case a particularly nasty form of leukemia.
Of course it's not just this patent that's at stake. If the Gleevec patent is recognized then the law under which India has barred recognition to a whole host of drug patents will fall, and those generics will go away. And it's not just India - the US and the drug lobbyists are so afraid that other countries might follow India's lead that they've begun high-pressure moves in trade negotiations to prevent this from happening.
It's worth noting that India's law is not a wholesale blind invitation to piracy. What the law says is that you can get a patent on a new drug, but you can only get a patent on a modification of that basic drug if you do something that improves its efficacy. In the US you can get patents based on slight reformulations, or patents to cover different delivery methods even though the underlying drug remains identical. So while it's clear that US and Indian patent laws differ, it's not obvious to me that one is inherently superior.
I've never been shy about where I stand on this sort of thing and my position hasn't changed. I believe that the patent monopoly power ought not to be absolute, that a new equitable bargain should be reached, if the damned drug companies will stop blocking it. Indian law may be too restrictive in that companies would not be properly enticed to spend the money to develop better delivery systems or refinements if they can't be sure it would meet some (currently undefined) standard of efficacy improvement. But we must weigh the lifesaving necessity of cheap versions of these drugs against the business needs. Right now, particularly in the US, the scales are tipped over far too much to one side. Let's hope India doesn't end up the same way.
Or maybe not. The WSJ reports insider sources as saying that at least some of the publishers may be in settlement talks. Visions of what a settlement might look at vary but there seems to be general understanding that the publishers would prefer to modify their agency pricing scheme rather than give it up. Quel surprise.
First, a bit of background. Gillmor has been working in various aspects of journalism for 25+ years. I first started reading him in the late 90s when he was working at the Merc and its online site siliconvalley.com. He's been a businessman, teacher, and investor in the digital media space for approximately as long as that space has existed within the US media landscape. Gillmor has never been passive - he was one of the first "establishment" media figures to realize that personal passion counted for something extra in the digital media space and he does projects he believes in.
Right now, what he believes is that we (the media-consuming public) need to make better choices. More informed choices. More active choices. In an effort to spur that he is both walking the walk, and creating the Permission Taken project, a project dedicated to "help[ing] you make your own decisions" on technology, privacy, and rights.
The project currently exists as a public Google doc - anyone can read it and comment either anonymously or if they have a Google account they can log in and be named. It reads a lot like an early-stage book proposal and it's clear there's a ton of work to do. Of course there will be at least one accompanying Web site, but there's also the possibility that Gillmor will take this crowdsourcing thing seriously and farm out pieces of this to others who would build micro-sites or related sites to extend beyond what can be contained in any one book/site.
The topic itself is centrally important to Copyfighters. Gillmor is quite up-front about the fact that using Google and gdocs represents a compromise. He describes how he's unplugged himself from the "church of Apple" in order to get some more freedom and control, but that no ideal solution exists. Each choice is some sort of trade-off and the project's purpose is not to steer a purist agenda but rather to make conscious trade-offs and guide other less-technical folk in making similar decisions.
It's a hard row to hoe. I've been vocal on Google+ (feel free to read my own stream and circle me there if you wish) about how I would like Google to stop racing Facebook to the bottom of the privacy-invading cesspit. Like Gillmor I think Google-flavor evil is less bad than Apple-flavor evil or Facebook-flavor evil but neither of us is blind to the fact that all these companies act in evil ways sometimes. Mottos notwithstanding, all of them are public companies with legal obligations to make as much money as possible and that's what they do.
In that spirit then, I'd encourage my readers here to join in the discussion Gillmor is opening, to follow the project as it unfolds, and let's see what comes of it.
That question looks to be headed to the courts to decide, as nascent start-up Aereo has been hit with pre-emptive lawsuits by television broadcasters.
As Rip Empson explains in a lengthy opinion piece for TechCrunch, Aero's business model is narrowly and painstakingly tailored to fit through what it believes is a viable exemption to copyright restrictions. Here's how it works: courts have ruled that in cases where the end consumer does everything - selecting the content, recording it, reviewing it in-home and privately - the activity is legal. This was the basis for the recent case known as Cable News Network v. CSC Holdings in which Comcast was able to offer what it called a "remote DVR" service. Instead of having a DVR in the home (which is legal) Comcast argued it was simply providing remote server storage and controls to do the same thing. Since the activity wasn't infringing, courts held that Comcast's service wasn't infringing.
What Aereo proposes to do is allow its customers to tune in to any one at a time of 20 local broadcast channels. The channels will appear on any of the consumer's Web-enabled devices by means of a special antenna they'll rent from Aereo. This may not seem like a big deal, but it is something that has been sought after for a while by people who want to "unplug" from their TV and take the programming with them. As in the Comcast situation, only one copy of the information will ever be made per consumer and the acts of selection, storage, and streaming will all be under the consumer's control. Thus, the reasoning goes, it ought to be legal.
Of course the broadcasters don't want anyone bypassing them, and they're suing Aereo despite the company being backed by one of their own: Barry Diller, who is credited with (among other things) the creation of the Fox and USA broadcasting networks. Sadly I agree with Empson that the most likely outcome for this case is that it'll be bogged down in courts for so many years that the company will run out of money or the whole landscape will shift and moot the case.
The entire contents of the book are available in DRM-free format under Creative Commons licensing that permits reuse and adaptation. I've been interested in wicked problems since listening to Horst Rittel describe them in a 1986 talk. These problems are particularly hard to solve, not least because they tend to be unique and because how you define a wicked problem already starts to change the problem. One of the things that makes Kolko interesting is that he doesn't shy away from the tough stuff. This book should be great reading.
Apple has scored a significant, if not complete, win against Motorola Mobility in the German courts. As Florian Mueller explains in his FOSSPatents blog post yesterday, the win is based on a European patent and the judgment awarded not only prevents Motorola from selling products that were judged infringing, it also provides for Motorola to be required to recall and destroy infringing devices.
Apple did not win on all the counts it brought, so the victory is not complete but it definitely is significant. Motorola will have to engineer around the patents and will be further hampered in the products it can bring to market. The story doesn't end here - two more court judgments are due in the near future that could spell additional trouble for Motorola and of course for Google, its future owner.
Specifically, Elsevier has withdrawn its support for RWA, the Research Works Act. The Act would have prohibited open access to much federally funded research, reversing long-standing policy of many federal agencies that fund a great deal of the scientific research done in the US. Of course, this would have benefited publishers such as Elsevier, who would have become the sole (expensive, for-pay) conduits for this research. Without Elsevier's support, the bill appears dead.
In his post, Doctorow posed the question of "whether paying Elsevier is the best way to do science and scholarship." I think that's something of a rhetorical flourish as he (and anyone who works in the field) knows, the scientific and technical publishing machines are at best necessary evils. I confess I was wrong in thinking a boycott threat would not be effective, but I still believe that in order to get any real change from the publishers, academics will need to do a lot more soul-searching and changing of how they conduct important business such as tenure review cases.
Here are two items worth talking about, which come from such diametrically opposite points of view that I find myself wondering if they are even from the same planet. Each of them is interesting and worth a blog entry, but mostly I want to compare and contrast.
In my own defense I'll say that many of the proposals here are intended as legislative fixes to things that are broken with the current system. As I write this the top two listed proposals are "Curb Abuses of Copyright Takedowns" and "Ensure Openness in International IP Negotiations." Each proposal on Internet Blueprint comes with a more or less plain-language explanation and proposed legislative language; for example the Curb Abuses proposal bill starts off with language that specifically targets Section 512(f) of Title 17. Congresscritters who sign on to proposals can be listed as "Champions" for that proposal.
Internet Blueprint is looking for people to submit proposals, to sponsor existing proposals, and to have people use the site as a way to communicate with their legislators who might be willing to sponsor an idea into legislation.
In C-11 the Cartel is asking for liability provisions to shackle social media sites, liability for Web search engines, liability for any site containing user-generated content, a tax on iPods (yes, really), copyright term extension ("To infinity and beyond!" they might have yelled except that's probably a trademarked phrase), and a removal of protection for parody and satire. Which probably means I can't make more snarky Toy Story or Monty Python references if they get their way.
As Geist points out, all these new demands are on top of the fact that C-11 contains everything bad that was in SOPA/PIPA, plus massive damages for non-commercial individual infringement. Post a video of your kid lip-synching to a pop-music tune and you too can be fined CA$ 20,000 (yes, really). When Nate Anderson wrote that he expected the Cartel to try taking smaller bites of the pie, he must not have been looking north of the border.