Week 9, Mar 27 ===================================== Gould partial dissent in Batzel v Cremers: Quotes: The majority gives the phrase “information provided by another” an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended. (1) the defendant must be a provider or user of an “interactive computer service”; (2) the asserted claims must treat the defendant as a publisher or speaker of information; and (3) the challenged communication must be “information provided by another information content provider.”2 The majority and I agree on the importance of the CDA and on the proper interpretation of the first and second elements. We disagree only over the third element.3 Majority: part (3) is met if the defendant believes this was the author's intention. This is convoluted! Why doesn't the author's intention matter? The problems caused by the majority’s rule all would vanish if we focused our inquiry not on the author’s [Smith's] intent, but on the defendant’s [Cremers'] acts pld: So far so good. But then Gould shifts direction radically: Gould: We should hold that the CDA immunizes a defendant only when the defendant took no active role in selecting the questionable information for publication. pld: Why not interpret (3) so defendant is immunized if author *did* intend publication on internet? Gould: A person’s decision to select particular information for distribution on the Internet changes that information in a subtle but important way: it adds the person’s imprimatur to it rephrased: Congress: chat rooms, discussion boards, and listservs do have special needs. pld: but why then add the "and users" lanuage to the bill? These aren't *users*. Gould: If Cremers made a mistake, we should not hold that he may escape all accountability just because he made that mistake on the Internet. ================================================================= Dozier Internet Law, www.cybertriallawyer.com 1. Lots of solid mainstream copyright cases: architectural designs jewelry designs advertising work (sitforthecure.com) stolen websites for: gamers sites physicians small businesses 2. Their AMAZING user agreement: dozierinternetlaw.cybertriallawyer.com ================================================================= corporate cybersmear: essential problem: * employee posts something critical at a site, "anonymously" * employer sues site, claiming libel * site caves, and provides real identity of poster * suit is dropped, poster is FIRED. ================================================================= gatt.org, and cyberhoax Is this funny? Or serious? Note that it keeps changing. Try to find the ones that are actually there. Draw attention to site names. ========================================== Julie Cohen, p 105-106 The right to read anonymously: a closer look at "copyright management" in cyberspace. Should DRM tell them what you're reading? I found this article awkwardly written. Arguments: 1. our original speech & writings are RESPONSES to others 2. copyright-management systems MUST ensure reader privacy (note that this is NOT automatic for some systems!) Tries to force a free-speech argument into this. ===================== Blocking and censorship Eugene Volokh on the need for editing! That is, in a world where everyone has the right of speech, how do you decide to whom to listen? ====================== Stalking and free speech ====================================================================== Is source code speech? Well, is it? Cases where it's been debated: * DMCA anti-circumvention (eg deCSS) * encryption Suppose you make F-16 fighters. You need an export permit to sell these oversees. What about if you make open-source encryption software? Ditto! Even if you GIVE IT AWAY!! BOOKS were exempt. The rule applied only to machine-readable forms. For a while, there was a machine-readable T-shirt with RSA on it. ====================================================================== ====================================================================== PATENTS Do they help advance progress? or hinder it? Intended to cover INVENTIONS rather than IDEAS. If you have an idea to sell hamburgers with salsa, or newspapers & beer together, or to create a website where people can post their own stuff, that's an IDEA. It can't be protected: everyone else is entitled to copy it freely. ============================================================= My (former) three-part test on when it is appropriate to recognize software patents: 1. The Supreme Court has turned down your last appeal 2. Federal marshals surround your cabin in the woods 3. You are out of ammo This could probably get me in trouble. ============================================================= Issues: * problems with the patent system generally * problems with the patent office as applied to software * fundamental problems with software patents Wright brothers patent on wing-warping History of software patents for a long time, software was held to be unpatentable, as mathematical algorithms are unpatentable. 1972: Gottschalk v Benson: can't patent a mathematical algorithm 1973: ATT somehow manages to patent setuid bit, claiming it's hardware patent dedicated to the public domain in 1979. 1981: Diamond v Diehr: computer + machine IS patentable. For a long time after, software patents always described the software in combination with some hardware device. Diamond v Diehr: SCOTUS says that an invention isn't automatically *un*patentable just because it contains an algorithm But PTO & lower courts read in the converse: algorithms are patentable Problem of "non-obviousness" the rules state that it's not enough to prove it's obvious *today*. Uh oh. Problem of "prior art" did someone else discover it first? often there are arguments about this Broad patents for fundamental new ideas, narrow patents for improvements compatibility issues: GIF => PNG MP3 => ogg vorbis software patent v copyright ============================================= Some patents xor cursor cpu Stack Pointer register Using an xml document to describe the grammar of another xml document British Telecom patent on the hyperlink, files 1976, granted 1989 Altavista patents on "web searching" compression algorithms RSA encryption Compton 1989 patent on multimedia, despite Apple Hypercard in ~1987. Steir's patent 5,060,171 on artificially adding hair to a person's image [Garfinkel article] SetUID patent (patented and then placed by ATT into public domain in 1979) Eolas v Microsoft: About a way for running "applets" in a browser window. Is this really an "invention"? NTP v RIM: the blackberry patent mp3 Lempel-Ziv / LZW compression natural-order recalculation in spreadsheets: Cell A depends on B if A needs B's value in its formula Rule: Before calculating A, calculate all cells A depends on. Duh. The algorithm is called "topological sort"; 1963. RSA patents MS has tried to patent FAT disk format ==================== compatibility issues: GIF => PNG MP3 => ogg vorbis PTO (Patent & Trademark Office) problems: * researching "prior art" * secrecy of the process ignorance is no defense: "submarine" patents entire process is secret: you can be making good-faith effort to be noninfringing and get hit with a huge verdict. wilful: you had advance notice of infringing. Your belief that the patent was invalid is NOT a defense. Damages automatically triple. Three groups: * small inventors * large corporations * patent-holding companies how large corporations manage: patent banks legal departments cross-licensing small inventors: market your invention yourself?? sell to a holding company These are tricky places. They produce nothing, they interfere with progress, but they *do* produce a market for new patents. Open source voip Legal advantage of small inventor: somewhat diminished with rise in legal fees & increased ambiguity But small inventors *can* still sell to patent-holding companies. Legal situation of large corporations: * hard for small inventors to sue them * can cross-license =============================================== Is software legitimately a special case? Microsoft v Eolas (+ Univ of California, as part of UCSF) MS lost; ordered to pay 521 million Patent covers "a system allowing a user of a browser program ... to access and execute an embedded program object," or small computer programs, often referred to as "applets" or "plug-ins." "Viola" prior art: may or may not be Eolas started by Michael Doyle, faculty member of UCSF[?]. Berkeley has an interest in the patent. About a way for running "applets" in a browser window. Is this really an "invention"? Patent: 5,838,906 ========================================================== NTP v RIM (Research In Motion): maker of Blackberry Settled for 612 million in Mar 2006 Patent has been challenged, PTO retracted one or two of the patents in Feb 2006 Judge (Spencer) in NTP v RIM refused to stay the case pending further USPTO findings Just a day after a judge in the NTP-RIM patent fight said that he would not wait for the US Patent Office to complete a review of NTP's patents, that same Patent Office announced a "non-final" ruling on one of the NTP patents, suggesting that the original patent might not be valid. -- techdirt.com NTP owned nothing but patents, but Thomas Campana -- co-founder -- did "invent" the technology. So NTP is not a classic "patent troll". Campana grew up in Marquette Park, btw. RIM engaged the mega-lawfirm of Jones,Day, which irritated Judge Spencer regularly. Bad idea. RIM put on a demo of some supposedly pre-Campana text-messaging software, BUT a major part of it was post-Campana's-patent. Another bad idea. Rim failed to prove the patent invalid in court. But the burden of proof was on them. With the USPTO, the burden of proof was on NTP. Central idea of NTP patent: if a wireless unit is out of range, messages are stored at Network Operations Center (NOC). Look at 6317592 Electronic mail system with RF communications to mobile processors 6198783 System for wireless serial transmission of encoded information Modulation techniques 6067451 Electronic mail system with RF communications to mobile processors 6272190 System for wireless transmission and receiving of information and method of operation thereof uspto.gov -> patents -> patft (uspto.gov/patft) Search by patent number: http://patft.uspto.gov/netahtml/PTO/srchnum.htm ========================================================== Alcatel-Lucent v Microsoft: won 1,500 million in infringement suit about mp3 decoders Feb 22, 2007 MS countersued for other patents *I* thought Fraunhofer IIS held mp3 patents Check out mp3licensing.com Aug 6, 2007: MS won new trial MS is now suing A-L for other patents. check out mp3licensing.com mp3 was published in 1991. Will all US patents expire in 2011? Original holder: Thompson Consumer Electronics & Fraunhofer Institute Still holds "core" mp3 patents. Patent claimants: Thompson Fraunhofer Sisvel / Audio MPEG Texas MP3 Technologies Alcatel-Lucent To date, (some) patent holders have announced that no action will be taken against open-source decoders. ========================================================== Patent reform: PTO trying to learn more prior art Watchdog groups doing same Trivial prior art is harder and harder to patent Still problems with patented protocols Patented storylines [!] =========================================================