Today at Seattle University Law, Andrew Culbert spoke on Patent Law and Trolls. Andy is associate general counsel at Microsoft in charge of patent litigation. This is the second time I have seen him speak; he was one of the session leaders at Lewis and Clark's CLE on non-obviousness.
Andy started the presentation with some statistics from Troll Tracker, a patent blog that I highly recommend. Last year 35 Fortune 100 companies had been sued 500 times for patent infringement. This is an average of 14 times per company for patent infringement. Microsoft tops this list with 43 suits last year.
The first topic was, "Why is Microsoft getting sued?" 1. Large verdicts from juries, which are often overturned 2. Most cases are NOT filed by competitors but instead by Trolls 3. Recent trend, post-1980, to allow a liberal approach to patent claims 4. Consolidation of patents to the Federal Circuit 5. Little to no documentation for prior art on software 6. Patents w/o clear limitations (Software patents are often functional and nonspecific) 7. Integrated products which allow a relatively minor patent to claim against a large product like Windows or Office 8. Damages are astronomical in the US, $500M to $1.5B, several times larger then anywhere else
One of the most interesting parts of the talk was a list of Supreme Court cases that reflect improvements in the patent system: Ebay -- Limits on injunctions KSR -- New rules on obviousness MedImmune -- Easer to challenge patents AT&T -- Limits on territorial scope LEG v. Quanta (Currently on review by the Supreme Court) -- May expand patent exhaustion
Also from the Federal Circuit Court: Seagate - limits on willful infringement Nuijten /Comiskey - limits on patentablity
FFIP was able to get in one Question at the end of the talk: What legislative changes do you think would make the most significant positive changes for the patent system?
Answer(paraphrased): 1. Changes to Damage calculations. The current damage formula allows for extremely high damage awards that encourages questionable litigation.
2. Possibly Venue reform. It is difficult to limit venue for real claimants, but reform that limits nonpracticing entity or shell cooperations could make a difference. It is just not an easy rule to craft and allow real claims to bring suits in home jurisdictions.
This was a great presentation. Thanks to the speaker Andy Culbert, The IPLS at SU who sponsored the presentation and Apollo Fuhriman, a 2L who organized the event.
I'm Esther, I'm an MLIS student at UW and I'll be doing some work on the FreedomforIP website. Basically, we are adding wiki functionality to the site, starting the caselaw and philosophy pages. We're still in the development stages, and we're planning to unveil the new wiki in mid-March.
Open Access Education: Cape Town Open Education Declaration
FFIP just signed The Cape Town Open Education Declaration(CTOED). The CTOED is the next step in Open Access Education. The CTEOD identifies three strategies to increase the reach and impact of open educational resources:
1. Educators and learners: First, we encourage educators and learners to actively participate in the emerging open education movement. Participating includes: creating, using, adapting and improving open educational resources; embracing educational practices built around collaboration, discovery and the creation of knowledge; and inviting peers and colleagues to get involved. Creating and using open resources should be considered integral to education and should be supported and rewarded accordingly.
2. Open educational resources: Second, we call on educators, authors, publishers and institutions to release their resources openly. These open educational resources should be freely shared through open licenses which facilitate use, revision, translation, improvement and sharing by anyone. Resources should be published in formats that facilitate both use and editing, and that accommodate a diversity of technical platforms. Whenever possible, they should also be available in formats that are accessible to people with disabilities and people who do not yet have access to the Internet.
3. Open education policy: Third, governments, school boards, colleges and universities should make open education a high priority. Ideally, taxpayer-funded educational resources should be open educational resources. Accreditation and adoption processes should give preference to open educational resources. Educational resource repositories should actively include and highlight open educational resources within their collections.
One of the most progressive parts of this declaration is the understand that "Whenever possible, [resources] should also be available in formats that are accessible to people with disabilities and people who do not yet have access to the Internet" This is an important step towards embracing Human Rights and working to close the digital divide. The CTOED builds on the Budapest Open Access Initiative by expanding the focus and including collaboration which empowers communities to educate and learn cooperatively.
A new website was launched recently by the Greens, a European political group. The website is opposing propaganda by the MPAA related to the file sharing debate.
"Whenever you rent a movie, the multinational media industry forces you to watch their propaganda. They claim that downloading movies is the same as snatching bags, stealing cars or shoplifting. That’s simply not true – making a copy is fundamentally different from stealing. The media industry has failed to offer viable legal alternatives and they will fail to convince consumers that sharing equals stealing. Unfortunately, they have succeeded in another area – lobbying to adapt laws to criminalize sharing, turning consumers into criminals. Read more at IWOULDNTSTEAL.net"
IBM, Sony, Pitney Bowes and Nokia have released a patent-sharing plan for companies to donate patents that improve the environment. This new "Eco-Patent Commons" builds on the experience of the open-source software movement. IBM was a chief architect in this program and modeled it after their successful open source patent commons. It is also nice to see Sony on the side of the people this time. I hope who ever contributed to this decision can convince Sony to look into more progressive copyright and less DRM.
This type of patent sharing in the name of the environment and public interest is a large step in the right direction for patents, which are theoretically granted for the benefit of the people. I wonder if drug companies will ever step up and do something similar for the world's poor regarding access to patented drugs. If not we need to seriously consider options to legally suspend patents when it is a matter of social justice.
Come join us for the First Seattle CopyNight of 2008:
Tuesday at 8:30 PM Elysian, 1221 E. Pike St. Seattle WA in Capitol Hill.
Happy New Year! Come ring in 2008 (a little belatedly) with the year's first CopyNight. Predict what IP issues will be big this year, learn about upcoming events, and have a beer or three. Hope to see you there!
I got an advance copy of Cory Doctorow's new book Little Brother last week from a coworker at ACLU. I happened to be taking care of my disabled father that night, so I read it all in one night. Then I took it home and read it out loud to my partner. Now it's being passed between my friends and office-mates.
It's strange to read a book about people like myself, my "tribe". There are some things in the book (like the shock at getting paid to write code for the first time), that my friends and I have all experienced, but reading them in a novel is a bit surreal. In that sense, the novel does speak for my generation. Although I'm certain that not everyone in my generation would agree with the values or morals promoted in Little Brother, the book does accurately capture our culture and our communication style, as The Catcher in the Rye and Ulysses did for previous generations.
The message in the book is a hugely important one. Although it's theoretically set in the near future, since I've read it, I've noticed pieces of the surveillance society in the book coming true in real life currently. I worry a bit that when the book comes out in April, it will be closer to current events than futuristic possibilities.
The book is very readable for young adults, and still layered and engaging for old adults. I'm not sure a lay-person could grock dual-key encryption from Cory's explanation, but it's not an easy concept to communicate, especially in a young adult text. Overall, I think it's an essential book for young adults to read. I especially liked the bibliography, which efficiently brings together several different books and blogs that together give a decent picture of our tribe's culture and beliefs.
I think that current young adults will engage with and be inspired by this book because it speaks to them and their lives. Whether the book will hold up over time is another question, as many of the technologies in the book will become antiquated and obscure. Watching the characters interact with technology was half the fun for me (but my passion connecting people with technology to accomplish a greater good, so maybe I'm not the best judge). I wonder whether that piece will be lost on future generations.
The book has a clear unapologetic theme of civil disobedience which resonates with me as a hacker and a young person. Civil disobedience is critically important in this society where the traditional reigns of power are held by an increasingly small segment of our country. My generation sees technology as an extension of ourselves, and many of us feel that it is our duty to use technology to wrest power from that minority and give it back to the people. Cory's book tells a passionate story about a member of our tribe doing just that.
The New York Times is hosting a debate on copyright issues and technology between Rick Cotton, general counsel of NBC, and Tim Wu, a professor at Columbia Law School. This should be a a very interesting event. Wu is working to expand access the public domain through programs like AltLaw, while Cotton is a copyright maximalist who has helped NBC fight for stronger copyright laws and more DRM on video content.
Round 1: Topic: DRM, Digital Rights Management, creating a war with users or a useful tool?
Cotton starts round one by acknowledging the major concern that artist want to get paid and that copyright law allows the use of DRM. Then he stumbles by overstating the purpose and the usefulness of DRM as a silver bullet that will solve distribution problems through noninvasive solutions.
Wu responds by pointing out the problems with overzealous DRM like the Sony Root Kit and the fact that most DRM prevents features that users want such as moving their own movies between devices they own. Wu also points out that DRM is being used to cling to outdated distribution models and prevent fans from remixing.
Outcome: Slight edge to Wu. I hope that as the week goes on issues like user generated content and free speech will take center stage.
My Response: The only message DRM sends is "we do not like or trust our customers". DRM views the public as the enemy. For those of us on the ground, fighting DRM is a war and consumer rights are the casualties. Get involved in the fight - visit Defective by Design.
To speak much is one thing, to speak well, another. -Sophocles
This is a great comic from Illiad on what is wrong with patent continuations. It also reminds me that I need to write a post endorsing the Amici Breif filed by Public Patent and other public interest groups in favor of the new regulations that require applicants to justify the need for more than two continuations per patent application.
The report, entitled "Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video," focuses on a wide variety of practices including satire, parody, negative and positive commentary, discussion-triggers, illustration, diaries, archiving and of course, pastiche or collage (remixes and mashups).
The report, along with other press on the Social Media Website make the argument that these practices may be protected by Fair Use, and that the court has favored works that are transformative in nature when balancing the fair use factors.
Peter Jaszi, one of the authors of the report, has two criteria for transformative work: 1. that it changes the original work in a substantial way and 2. that the change adds value to the society (paraphrased from Peters interview on Chronicle.com)
The report also recognizes that Fair Use is difficult to define and that in the arena of online video there are no current best practices to follow. The authors would like to remedy this with three steps:
1. Talk about Fair Use with creators and corporate stake holders on their blog 2. Conduct a survey of social scientific and participant-observation research of online user practices, as well as further interview-based research with creators. 3. develop best practices recommendations through a body of "lawyers, legal scholars, and scholars in communications, sociology... This 'blue ribbon' group’s recommendations could then help to shape regulatory practices, both private and public, for a participatory media era."
This sounds good at first glance until you realize that the "Blue Ribbon" group is all academics and no creators. If you want readable standard the high level policy group must include creators. Take an editor from Boing Boing or a few non academic podcasters and add them to the mix to make sure the legal academic solutions are actually usable. Overall the report is a great starting point I just believe that to be effective creators need to be involved at all levels of the conversation. The biggest current problem for Fair Use is it is confusing at best any new guide lines need to be easy to use to use or they will only create more litigation.
On a final note my favorite part of the report was going through and looking up some of the videos. Here are my two favorite:
Sony made an announcement last week that it will now sell DRM free music. However, they've managed to make it as unfriendly to consumers as possible. To obtain the Sony DRM free tracks, you have to first have to go to a retail store to buy a Platinum MusicPass, a card containing a secret code, for a suggested retail price of $12.99. Once you have scratched off the card's covering to expose the code, you will be able to download one of just 37 albums available through the service including Britney Spears' "Blackout" and Barry Manilow's "The Greatest Songs of the Seventies" (both universally recognized as among the 37 best albums of all time).
Almost no selection, a higher price point than iTunes and you have to show up to a store.
Amazon.com offers 2.9 million DRM-free tracks in MP3 format from: EMI Group Warner Music Group Universal Music Independent record labels
Apple's iTunes Store has around 2 million DRM-free albums for $9.99
I am not sure what Sony is thinking, but DRM-free distribution that requires people to go to a store to buy downloads is not a step forward. The Platinum MusicPass sounds like an over priced glorified gift card. Sony did state that online sales are part of their "ultimate plan" but have not released any further information.
Sony Listen Up: If you wants to make real waves in the music industry you should consider something better than what everyone else is already offering. How about an online retail site where ALL Sony's music is DRM-free and users get to pay what they think the music is worth. Radiohead has proven that this model is workable for famous artists and Magnatune is making it work for new artists. I would be a lot more likely to open my wallet for that format!
1. Increase our blogging - Last year we had 150 blog posts ranging from on site blogging at legal and technology conferences to issue statements on DRM and Fair Use. This has been one of our most successful outreach tools and will continue to grow over the next year. At the end of 2007 Riana Pfefferkorn a 2L at University of Washington Law and , has joined our blogging effort as a guest blogger. We hope to find more guest bloggers in 2008.
2. We would like to add a section on FFIP for videos while experimenting with a monthly video cast on current issue related to IP. My personal strength is public speaking, and I want to try capturing that for an online medium.
3. Move from Blogger to WordPress - Blogger has served us well but does not fit our mission. Open source community based tools represent the values of FFIP better. Both Sarah and Brian have transitioned to WordPress for our personal blogs and the process has been very positive.
4. Improve Case Law and Philosophy sections - We need to add cases like KSR International v. Teleflex, INS v. AP, and Michael Savage v. CAIR. We have decided not to internally host a case law database, but instead to link to outside resources like AltLaw and Wikipedia while adding our own comments and resources on the FFIP site. On the philosophy side we need to add Wealth of Networks, Infringement Nation and a pleathera of other writings on the topics to the list. We may even start a wiki to take suggestions for resources to add.
5. More Partnerships - Last year we worked with Defective By Design, CC and EFF with great success. Defective by Design runs the best protests while CC and EFF have been extremely useful for providing educational materials for teaching people about their rights and options to opt out of copyright. We will be reaching out to more organizations to help educate more people about the need to expand Fair Use and reform patents.
6. New logo - *holds head in hands* this is long over due. I fail at graphic design. I can give public speeches, code and even write Fair Use defense legal letters, but when it comes to artistic online skillz we need help. We need a new logo.
I should stop here before going making the list too long... These goals are manageable and can be accomplished with your help.
FFIP has been running for two and a half years now, I am grateful for all the help we have had from law professors, other orgs and volunteers. I look forward to another year bring the copyfight to the people who will fight for our rights in the digital age.
The Chief Technology officer for One Laptop Per Child (OLPC) Mary Lou Jepsen has left the non-profit to start company that will commercialize inventions related to display technology. She has stated that she will continue to offer improvements to OLPC at a discount:
"I will continue to give OLPC product at cost, while providing commercial entities products they would like at a profit," Jepsen wrote in an e-mail.
I am dubious of whether it is a good idea for OLPC to actively license technology even at cost. My understanding was that OLPC rejected an offer from Microsoft to license a stripped down version of Windows in favor of Linux as its primary OS. Basing OLPC on free open inventions allows the most flexibility for developing nations to use the machines. Before leaving OLPC Jepsen did submit patent 20070285428 ('428 for short) to the USPTO for approval. I am curious how OLPC will treat this patent. The OLPC wiki has a strong statement in favor of Open Software, authored by Benjamin Mako Hill:
"[OLPC] Must not be otherwise encumbered by software patents which restrict modification or use in the ways described above. All patents practiced by software should be sublicenseable and allow our users to make use or sell derivative versions that practice the patent in question."
There is no similar statement about hardware patents related to OLPC. I would hope that all patents related to OLPC would be held in an patent pool similar to IBM's patent commons that allows for open source use and innovation. I am curious about how OLPC plans to use '428 in the future.
PS Do not confuse Mary Luo Jepsen new patent's with "jepson claims". I did, but I am better now. If anyone has a full copy of Mary Luo Jepsen's email I would be interested in reading it please email me at Brian (at) FreedomforIP (dot) org.