Thursday, September 30, 2010

iPhone App of the Day

Actually, maybe this is the iPhone app of the YEAR.

Having Firefox Problems?

You're not alone.

For Those of You Reading This Blog at Breakfast

Don't eat THIS.

Microsoft Asks the U.S. Supreme Court to Make it Easier to Invalidate Patents

In August Microsoft filed a petition for certiorari in the U.S. Supreme Court that asked the Court to make it easier to invalidate an issued U.S. patent.  Since its creation in 1982, the U.S. Court of Appeals for the Federal Circuit required that a defendant seeking to invalidate a patent prove invalidity by "clear and convincing evidence" -- meaning that it is highly probable that the patent is invalid.  Normally, the standard of proof in civil cases is "preponderance of the evidence," meaning that something is more likely than not.  For example, a patent owner need only prove that the defendant infringes the patent by a preponderance of the evidence.  "Preponderance" is a much easier standard to meet than clear and convincing evidence, so patent defendants have been at a disadvantage. 

Yesterday (September 29), eleven amicus briefs were filed in support of Microsoft's request that the Supreme Court hear the case and change the Federal Circuit's long-time standard of proof.  One of those was filed by the Electronic Frontier Foundation, Public Knowledge, the Computer and Communications Industry Association, and Apache Software.  I was counsel of record and a co-author of that brief.  EFF's blog post about the case is here.

Joe Mullin has a detailed article about the case that includes links to all eleven briefs.  The companies supporting Microsoft span much of the technology industry, including Google, Intel, Yahoo!, Apple, Dell, Hewlett-Packard, Facebook, and many others.  36 law, business and economic professors also filed a brief supporting Microsoft.

Other articles about this case are here, here, here, here, here and here.

The Supreme Court will likely decide in December whether to hear the case.

UPDATE:  Dennis Crouch has a detailed discussion at Patently-O.   And IPWatchdog has a detailed interview with Mark Lemley about this subject (Mark is counsel of record on the professors' brief.)  Also, here is Techdirt's post.

Wednesday, September 29, 2010

How to Write a Scientific Paper

This is an important article about an important article.

Second Circuit Rules Digital Downloads Aren't Public Performances

Yesterday the Second Circuit affirmed a district court ruling that digital downloads of music aren't public performances.  ASCAP had sued Yahoo! and RealNetworks seeking public performance royalties for such downloads, but the Court rejected that claim.  It also ruled with Yahoo! and RealNetworks on a separate issue by reversing the district court's calculation of license fees. 

Techdirt's analysis is here.

Friday, September 24, 2010

Today is National Punctuation Day

Celebrate if you wish.  But be sure to put your commas in the right place.

YouTube Wins Secondary Liability Case in Spain

Congratulations to YouTube and Google for winning a secondary liability case in Spain (opinion here, in Spanish).  Spanish broadcaster Gestevision Telecino had claimed that YouTube was liable when its users uploaded copyrighted material.  Reaching the same result as the U.S. Court that rejected a similar claim by Viacom, a Spanish court held that YouTube was not liable, given YouTube's prompt takedown of any infringing content identified by copyright owners.  YouTube's blog post about the case is here.

Thursday, September 23, 2010

Supreme Court Might Hear "Innocent Infringer" Copyright Case

Whitney Harper was a high school student who downloaded some songs using Kazaa.  She claims she thought file-sharing downloading was the same as listening to an Internet radio station.  When the RIAA sued her for illegal file-sharing, she tried to claim "innocent infringer" status under the Copyright Act, limiting statutory damages to $200 per work (instead of the usual $750 minimum). 

While the district court agreed with Harper, the Fifth Circuit reversed.  The appeals court agreed with the RIAA that putting copyright notices on the CD's containing the songs defeated an innocent infringer case -- even though Harper never saw the CD's, having downloaded the songs instead.

Harper asked the Supreme Court to hear the case.   Very few such petitions are granted, so the RIAA initially didn't even respond to Harper's petition.  Now, as Techdirt, Ars Technica and Copyrights and Campaigns have reported, the Court has asked the RIAA to respond.  This greatly increases the chance that the Court will agree to hear the case.

Wednesday, September 22, 2010

Kid Most Likely to Use His Middle Initial, Always

THIS kid has one of the best names, ever.

Do Software Patent Plaintiffs and NPEs Usually Win at Trial? Mark Lemley Says They Don't

Mark Lemley and others have written a new paper entitled, "Patent Quality and Settlement among Repeat Patent Litigants." It is available from SSRN here.  Among other things, Lemley concludes that if software patent plaintiffs and non-practicing entities take their patents to trial, they often lose.

Here's the abstract of the paper:

Repeat patent plaintiffs - those who sue eight or more times on the same patents - have a disproportionate effect on the patent system. They are responsible for a sizeable fraction of all patent lawsuits. Their patents should be among the strongest, according to all economic measures of patent quality. And logic suggests that repeat patent plaintiffs should be risk averse, settling more of their cases and taking only the very best to trial to avoid having their patents invalidated. In this paper, we test those hypotheses. We find that repeat patent plaintiffs are somewhat more likely to settle their cases. But, to our surprise, we find that when they do go to trial or judgment, overwhelmingly they lose. This result seems to be driven by two parallel findings: both software patents and patents owned by non-practicing entities (so-called "patent trolls") fare extremely poorly in court. We offer some possible explanations for why a group of apparently weak patents nonetheless have so much influence over the patent system, and some preliminary thoughts about how these findings should shape the patent reform debate.

Peter Zura has a summary of the article here.

Tuesday, September 21, 2010

This Is Painful Just to Watch

A video entitled, "Americans are NOT stupid - with subtitles."   If these people aren't all actors, they are in big trouble.

"Implied License" Defense in the Righthaven Copyright Lawsuits

Techdirt has an interesting post on an "implied license" defense in the Righthaven Copyright lawsuits.  Briefly, Righthaven is a company that buys the copyrights in news articles from the original news source, and then sues people who repost some or all of the articles online.  (For more information about the Righthaven suits, see this post by the EFF.  The EFF is monitoring these suits closely.)

But what if the original news source impliedly licensed people to repost the story?  In that case, as Techdirt explains, Righthaven might be out of luck.

Monday, September 20, 2010

Math Headline of the Day.

I know THIS is probably a result of Photoshop.  But I had to post it anyway.

Defense Verdict in the Eastern District of Texas

A new defense verdict today in a patent case in the Eastern District of Texas.  The case is Ameranth v. Menusoft, Case No. 2:07cv271.  Michael Smith's blog briefly reports on the case.  While defense verdicts in that district are no longer unusual, in that case the claims were found both not infringed and invalid, which is still somewhat unusual.

U.S. Senators Propose Bill to Turn Justice Department Into Piracy Police

A group of Senators, led by Sens. Patrick Leahy and Orrin Hatch, have proposed a bill that would turn the Justice Department into piracy police.  The so-called "Combating Online Infringement and Counterfeits Act" would give the Justice Department the power to shut down websites that are "dedicated to infringing activities."  This latter phrase is broadly defined as a website that is "primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator" to offer goods or services that infringe a copyright or trademark.  The entertainment industry doubtless loves this one.

Techdirt's commentary is here.

UPDATE:  The EFF's analysis is here.

Self-Fulfilling Prophecy of the Day, Grocery Store Edition

This can label is probably NOT what the Dole Food Co. intended.

Overly Descriptive Elevator

I am sure glad I don't work in THIS building.

Ask Jeeves' Top Nine Unanswerable Questions . . . and a Tenth One

Somehow, Number 9 seems a little out of place on THIS list.

Federal Circuit Approves Use of Industry Standards to Prove Infringment

In today's opinion in Fujitsu Ltd. v. Netgear Inc., the Federal Circuit approved the use of industry standards to prove patent infringement.  The court rejected Netgear's argument that even if a device practiced a standard, a patent owner still must always analyze the workings of the particular device as part of its infringement proof.  If a patent "covers every possible implementation of a standard", then "it will be enough to prove infringement by showing standard compliance."  If the standard is not detailed enough, or has optional sections, then an analysis of the accused products will be required.  The key quotes are as follows:

We hold that a district court may rely on an industry standard in analyzing infringement. If a district court construes the claims and finds that the reach of the claims includes any device that practices a standard, then this can be sufficient for a finding of infringement. We agree that claims should be compared to the accused product to determine infringement. However, if an accused product operates in accordance with a standard, then comparing the claims to that standard is the same as comparing the claims to the accused product.

We acknowledge, however, that in many instances, an industry standard does not provide the level of specificity required to establish that practicing that standard would always result in infringement. Or, as with the ’952 patent, the relevant section of the standard is optional, and standards compliance alone would not establish that the accused infringer chooses to implement the optional section. In these instances, it is not sufficient for the patent owner to establish infringement by arguing that the product admittedly practices the standard, therefore it infringes. In these cases, the patent owner must compare the claims to the accused products or, if appropriate, prove that the accused products implement any relevant optional sections of the standard. This should alleviate any concern about the use of standard compliance in assessing patent infringement. Only in the situation where a patent covers every possible implementation of a standard will it be enough to prove infringement by showing standard compliance.

In another interesting part of the opinion, the Court discussed aspects of the law of contributory infringement, including the issues of "capable of infringement," the level of knowledge required to prove infringement, substantial non-infringing use, and material part of the invention.   Netgear wound up winning outright on two of the three patents involved, and on all but four models for the third patent.

UPDATE: Here's an analysis by Patently-O.

Sunday, September 19, 2010

Friday, September 17, 2010

Service Mark of the Day.

"The Mark consists of Goats on a roof of grass."  Courtesy of The Trademark Blog.  I cannot figure out whether to label this under Trademarks or under Humor . . . so I'll do BOTH!
Reg. No. 2,007,624

UPDATE:  Techdirt's analysis is here.

For All You Star Trek Fans

First, the ultimate Star Trek Hoodie.  Next, a new book you won't want to miss.

Monday, September 13, 2010

Traffic signs to avoid

Thanks to the Huffington Post for today's slideshow of horror traffic signs.

Newspaper headline of the day

Everybody (who can) applaud.

Federal Circuit again tries to figure out if preambles are claim limitations

In today's opinion in American Medical Systems, Inc. v. Biolitec, Inc., the Federal Circuit again tried to figure out if preambles are claim limitations.  The preamble at issue included the language "method for photoselective vaporization of tissue."  Judge Bryson, with Judge Prost concurring, said the language wasn't a limitation.  Judge Dyk dissented and said it was.

The Patently-O blog has a more detailed discussion here.

Sunday, September 12, 2010

Duck advertisement of the day

My first humor post naturally involves a duck.

The Ninth Circuit on first sale: "If it looks like a duck, and quacks like a duck, and flies like a duck . . . it's a CHICKEN!"

On Friday, September 10, the Ninth Circuit Court of Appeals released an opinion that prompted me to start this blog, at long last.   The opinion in Vernor v. Autodesk dealt with the "first sale" doctrine in Copyright law.

By way of background, the Copyright laws treat ownership in the copyright of a work of authorship differently than ownership of a copy of the work.  For example, if an artist paints a painting, the artist owns the copyright in the work, and can regulate the making and distribution of copies of the painting.  If the artist sells the painting, the buyer of the painting gets ownership of that copy of the work, but (usually) not the copyright in the work.  So while the buyer has possession of the painting, the buyer does not have the right to make copies of the painting -- only the owner of the copyright (the artist) has that right.

However, the buyer usually does have the right to resell the physical copy of the painting he bought, regardless of the artist's ownership of the copyright.  This is under the "first sale" doctrine, which says that once someone buys a legal copy of a copyrighted work, the owner can legally resell the copy.

Enter Vernor v. Autodesk and the Ninth Circuit.  Timothy Vernor had bought legal copies of Autodesk's AutoCAD software, and tried to sell them on eBay.  Autodesk claimed that the fine print in its original agreement with the purchasers of the software made the transaction only a "license," and not a sale, so the first sale doctrine did not apply.  The Court held:
"We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s SLA, we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense."

This ignores the economic realities of what a "license" usually is, especially a software license. In a license, the licensee usually (1) pays a recurring fee (e.g. an annual license fee); (2) gets the software for a limited term (e.g. a number of years); and (3) must return all copies of the software when the term is up, or must destroy all copies.

In a sale, the transaction is usually for (1) a one-time fee; (2) permanent transfer of possession of the copy (i.e. no limited term); and (3) permanent possession by the buyer with no obligation to return the software to the seller. (In the Vernor case, this is what the economic realities were.)

Compare renting versus buying a condo. If I rent a condo, I pay monthly rent; it is for a limited term; and I sure as heck have to give it back when the term is up. If I buy it, I pay the seller once (the only periodic payments are usually to the bank who lends me part of the sale price, not the seller); it is permanent and not for a limited term; and I don't have to give it back to the seller, ever. (Perhaps in the rare case where the seller happens to be the bank and I default on the loan, the seller/bank can foreclose; but if my seller isn't my bank, the seller never gets it back.)

Either way in buying a condo, Ninth Circuit factors (2) and (3) are usually present. A condo's CCR's usually have significant use restrictions, and restrictions on transfer (e.g. in a seniors complex the condo can only be resold to another senior). Those are present even when you buy a condo -- but most people who buy a condo would be very, very surprised to find that they only "licensed" it because of these factors, and didn't buy it.

That leaves Ninth Circuit factor (1), calling the transaction a license. The mere label something is given doesn't change the economic realities of the transaction. It brings to mind the old saying: "If it looks like a duck, and quacks like a duck, and flies like a duck, it's a duck, it's not a chicken." Calling a duck a "chicken" doesn't make it a chicken.

But now in the Ninth Circuit, if someone wants to call a duck a chicken, well then . . . it's a CHICKEN!

UPDATED:  Additional analysis by the EFF, Techdirt, and Ars Technica.