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.
An interesting note in a 7th Circuit case, M. Arthur Gensler, Jr. & Assocs., Inc. v. Strabala shows how judges are continuing to apply the standards of physical property to intellectual property. In this case a dispute arose over the authorship (if you will) of a building. The Seventh ruled that "design" is a form of creation of intellectual property creation equivalent to building or selling physical good. As such, it's subject to various regimes of ownership, trademark protection, and so on.
Our friends at ISRI pointed out to me that some mobile companies are now promoting the idea of a "kill switch" that would be under the control of someone other than the user. Such kill switches are supposedly for consumer protection - disabling stolen devices - but end up being a way for manufacturers, phone companies, etc. to keep devices off the second-hand market. Kill switches per se are not bad - they just need to be under the control of the person who purchases the device so they can be legitimately disabled. Like other such technological locks, kill switches are probably under the DMCA umbrella that prevents legitimate disabling or circumvention.
My favorite design podcast, 99% Invisible, did its episode this week on "Duplitecture". That starts out being about the vast cities in China that are conscious re-creations of architecture from elsewhere in the world, and delves into the long history. For us Americans it's worth remembering that many of our most famous building designs (the White House, Jefferson's State House for Virginia) were themselves copies of older building ideas. The podcast's host, Roman Mars, comes out strongly in favor of "mindful iteration" as a valuable form of copy-inventiveness.
Our friends at ISRI sent a note saying that Congress had gotten its act together to pass the bulkily named "Unlocking Consumer Choice and Wireless Competition Act" which includes provisions allowing companies and individuals who recycle and refurbish electronics to unlock them as part of their business.
Mike Masnick's piece on Alice v CLS Bank more or less follows the lines I'd expect. However, he points out that Thomas's opinion, rejecting the Alice patents because of generic computer implementations, doesn't give good guidance because the same argument could be made about any computer program. In essence, Masnick argues, SCOTUS is continuing to pretend that some software is patentable and some is not, while refusing to give examples or guidelines for drawing that distinction.
A reader pointed me to a blog entry over at the Library of Congress discussing animated gifs. The posting describes a little of the ubiquity of these Internet-spawned forms of communication and then asks the question: what about copyright? The answer seems to be that copyright claims don't arise because animated gifs rarely attribute authorship to their creator and because they often use tiny fragments of previously published media in a society where we generally understand the creative reuse of small samples to be fair use. RIAA excepted, of course.
A European reader wrote to tell me that in the EU, there is in inter-library loan possible for e-books. Is that also true in the US? Yet another way e-books are inferior to their physical older brothers I guess.
Or so claims Ian Sample in the Guardian. He describes how what started as a hoax - create a program that would write a nonsense paper and get it published in academe - has turned into over 100 papers that have had to be retracted. The root of the evil as usual is money: journals charge exorbitant fees to universities for journals in which those same universities pressure researchers to publish. We've talked about this before; until "publish or perish" changes, this sort of scam, rip-off, and gigantic waste of time is going to be the order of the day.
Bucking the latest wave of "the blog is dead" thought posts, LinkedIn is extending the ability to write long-form texts to all users. Originally, this ability was limited to selected "thought leaders" picked by some arcane internal formula. Now anyone will be able to do it. I don't think this is hugely significant, but it is interesting that LinkedIn is taking this move, because it has lots of data on what its users like and want to read. Clearly users are reading those thought leader posts as well as external blog posts that users can already link, and the company wants to keep capturing that Web traffic.
And this is why I don't gamble on horses or the stock market: I'd said the odds of the Supreme Court granting cert in this case were slim, but here we go. I haven't seen an arguments schedule but I'd expect this to be calendared for Spring. Aereo did not oppose the cert, which makes some sense since they're getting dragged into court everywhere, but it's a truism that the Supreme Court rarely takes cases just to uphold verdicts. There's a good chance the justices want to revise the case on which Aereo is building its business, which could end them once and for all.
Via Mike Masnick, news that the MPAA has joined the W3C. Of course the Web consortium is free to accept money from whomever it pleases, but if you think this is somehow unconnected to the recent attempt to jam DRM deep into the core of HTML then you're more naive than I expected.
Via Cory at Boingboing, news from the EFF that their reading of the current TPP draft indicates it would eliminate artists' termination rights. We looked at termination rights back in 2011 when some of the biggest names in music from the 70s were organizing to get their album rights back. My bet is that the Cartel is seeing its perpetual money machine slipping away and is scrambling around for any way they can find to undo the agreement they made in the 1970s, when nobody thought an album would be worth anything 35 years after it was recorded.
Aereo sent me a copy of a statement from its CEO, Chet Kanojia, in which Kanojia explains the company's decision not to oppose broadcasters' request for certatori before the US Supreme Court. Essentially, they'd rather not have to fight this out district by district, Circuit by Circuit. While I sympathize with this desire it's important to keep in mind that SCOTUS denies the vast majority of cert petitions. In situations like these where there is only one Circuit decision and every other district has aligned with that decision I think it's extremely unlikely that this petition is going to be granted unless there are four Justices that want to revisit Cablevision.
Contributory Cybersquatting Not Viable in Trademark
Or so seems to say the 9th Circuit in Petronas v. GoDaddy.com. Petronas sued GoDaddy for its role in registering and helping maintain two domain names that included the string "petronas" and that directed people to porn sites. Petronas alleged that the registrar contributed to the infringement on trademark that these domains created. I've read the cited statute and it doesn't seem to provide any cause of action for contributory parties, so I'm inclined to agree with the court here. But other courts may decide otherwise or this may get appealed and the 9th has a terrible track record when their decisions are subject to SCOTUS review.