"Top 10 Worst Children's Toys Available This Christmas"

Need some last-minute gift ideas?  Here you go.

My Ten Favorite Stupid Patents

In my last post, I congratulated my EFF colleague Julie Samuels had been awarded the new title of "The Mark Cuban Chair to Eliminate Stupid Patents."  In honor of that award, here are my ten favorite stupid patents.  

10.  U.S. Patent No. 6,025,810, "Hyper-light-speed antenna."  The abstract reads (boldfacing and underlining added):

A method to transmit and receive electromagnetic waves which comprises generating opposing magnetic fields having a plane of maximum force running perpendicular to a longitudinal axis of the magnetic field; generating a heat source along an axis parallel to the longitudinal axis of the magnetic field; generating an accelerator parallel to and in close proximity to the heat source, thereby creating an input and output port; and generating a communications signal into the input and output port, thereby sending the signal at a speed faster than light.

9.  U.S. Patent No. 5,356,330, "Apparatus for simulating a 'high five.'"  Fig. 4 is here:

 

8.  U.S. Patent No. 5,564,239, "Horse shaped building with recreational area."  You can't tell from the title that this 1996 patent actually is about . . . a Trojan horse.  Which was what, over 3,000 years ago?

 

7.  U.S. Patent No. 4,195,707, "Communicating device."  Remember when you were a kid and you used to tie a string between two tin cans to make a "telephone" and talk?  Someone got a patent for this in 1980.

 

6.  U.S. Patent No. 6,360,693, Animal toy.  The "toy" in question is a stick to throw to a dog . . . patented in 2002.

5.  U.S. Patent No. 6,293,874, "User-operated amusement apparatus for kicking the user's buttocks."  No comment needed other than Fig. 2:

4.  U.S. Patent No. 5,443,036, "Method of exercising a cat."  This is the famous (or infamous) patent on exercising a cat using a hand laser.  It even has its own Wikipedia entry.

3.  U.S. Patent No. 6,004,596, "Sealed crustless sandwich."  Essentially, this 1999 patent covers a peanut butter and jelly sandwich with its crusts cut off.  Fortunately the Patent Office killed this one in 2007.

2.  U.S. Patent No. 6,368,227, "Method of swinging on a swing."  Seven-year-old Steven Olson proudly got this patent in 2002.  (It helps if your dad is a patent lawyer.)  In 2003, the Patent Office killed this one also.

1.  U.S. Patent No. 5,498,162, "Method for demonstrating a lifting technique."  Essentially, this is a 1996 patent on lifting up a box.  I could have sworn this had been done before.

Honorable mention: There are a number of published patent applications that never became patents, meaning that even the Patent Office couldn't see fit to allow a patent (unlike the real patents listed above).  My favorite is U.S. Application No. 2006/0259306, "Business method protecting jokes."  Some representative claims are as follows:

1. The process of protecting a novel joke which comprises filing a patent application defining the novel features of the joke.

10. A joke relating to the unexpected but partial skill of animals (preferably large mammals or birds) in sports involving spheroidal projectiles, characterised in that the punch-line employs alliteration.

22. A process claimed in any of claims 1-7 in which the patent application is filed, or claims priority from an application that is filed, on 1 April.

"The Mark Cuban Chair to Eliminate Stupid Patents"

Congratulations to EFF Staff Attorney Julie Samuels, who has been awarded the new title of "The Mark Cuban Chair to Eliminate Stupid Patents."  I am not making this up.

Apple v. Samsung: Permanent Injunction Denied

Apple v. Samsung is a well-publicized case involving smartphones.  Today U.S. District Judge Lucy Koh denied Apple's motion for a permanent injunction on the Apple patents that the jury found Samsung infringed.  The order is here; Patently-O's discussion is here.  The court also denied Samsung's request for a new trial based on jury misconduct; that order is here.

It is likely that Apple will ask for additional damages based on Samsung's infringement of the patents after the jury verdict a few months ago, although since Samsung apparently has discontinued most of not all of the infringing features, that won't amount to much.  Both sides can appeal these orders to the Federal Circuit Court of Appeals.

Apple Patents Letters.

Apple patents letters.  All 26 of them.

Google in 1960!

Remember that they used to call "enter" the "return" key.

The Latest Holiday Gift!

A doorbell for dogs!

A Redditor's Mom Correctly Predicts the Internet

In the 1970's, a Redditor's Mom correctly predicted "the Internet."

My Latest EFF Amicus Brief: Trying to Solve the Abstract Patent Problem

Today EFF filed the latest amicus brief which I helped write.  The case is CLS Bank v. Alice Corp.  EFF's press release about the filing is here.

The case involves several business method patents that manage financial risk in commercial transactions.  The trial court held that the patents were invalid under 35 U.S.C. § 101, which limits the types of things that can be patented.  As EFF explains on its Abstract Patent Litigation page, things like laws of nature, natural phenomena, and abstract ideas can't be patented.  In recent years, both the Federal Circuit Court of Appeals and the U.S. Supreme Court have struggled on what § 101 means and how and when it limits what can be patented. 

In March 2012, the Supreme Court decided Mayo v. Prometheus, which held that medical diagnostic processes are not patentable.  The opinion gave some good guidelines about when processes aren't patentable: things that are "well-understood, routine, conventional activity" can't be patented.  However, all 12 active judges of the Federal Circuit don't agree on the proper test for when patents are abstract.  Some think that § 101 should strictly limit what is patentable, some think mostly anything should be patentable.  The outcome of any particular case depends on which 3 judges are selected to hear an appeal.

CLS Bank was first heard and decided before a 3-judge panel, in a July 2012 decision.   Two of the three judges upheld the patents against the § 101 challenge.  Their test was whether the patent claimed "nothing more than" an abstract idea, and that a patent was permitted unless it was "manifestly evident" that only an idea was claimed.  This is a very permissive test, to say the least.  The other judge dissented and said that the patents weren't permitted under the Supreme Court's test in Mayo.  The majority's rule was also plainly inconsistent with other recent cases holding similar patents to be invalid.

CLS Bank then asked all 12 judges of the court to hear the case (called an en banc hearing).  EFF filed an amicus brief supporting those efforts.  In October 2012, the full Federal Circuit agreed to hear the case.  Briefing is underway, and oral argument is scheduled in February 2013. 

EFF's amicus brief for the en banc hearing makes two principal points.  The first is that patent litigation has been greatly increasing during the last several years, particularly for software and business method patents, and for patents owned by non-practicing entities.  This litigation puts a great burden on innovative companies who actually sell a product.  Second, rather than try to decide the difficult question of whether something is "abstract," process patents should not be allowed to claim broad functionality, but rather should be limited to the particular ways a patent implements those processes, and equivalents.  On that point, we suggest that the court use an analysis by Professor Mark Lemley of Stanford.  If the patents are limited to what was actually invented, this both makes the abstractness test easier, and also makes them less of a threat to companies whose products work in a substantially different way.

UPDATE: Techdirt has this nice writeup on EFF's brief.  Patently-O has analyzed all of the opening round amicus briefs.

Supreme Court to Review Patentability of Human Genes

Today the Supreme Court agreed to review the Myriad gene patenting case, Association for Molecular Pathology v. Myriad Genetics. The case involved the patentability of genes directed to detection of breast cancer (BRCA genes) and methods for using them. The review is limited to question 1, which asks whether human genes are patentable.  I previously wrote about the case here and here; SCOTUSblog's case page is here.

Cat-Friend vs. Dog-Friend

Some of you might have dogs, some might have cats, some might have both.  But here's a good reason to be glad none of your human friends act like dogs or cats.  At least I hope none of them do.

Happy Thanksgiving Everyone!

Courtesy of The Onion.

Need a Holiday Present?

Hard to go wrong with one of THESE.  Ordering information here.

Windows Explained

Windows explained, starting with Windows 95.  Remember it?

It's the Viola-Matic!

Good thing my guitar can't do what this fine kitchen utensil can do.

Tips for Biology Students

Do you know someone taking a biology class?  Then they will appreciate these helpful tips.

EFF and Techdirt Posts About "First Sale" Doctrine Case

Yesterday the Supreme Court heard oral argument in Kirtsaeng v. John Wiley.  The case involves the "first sale" doctrine, or the issue of whether someone who buys a copy of something legally manufactured abroad can resell, lend or give away the copy without getting permission from the copyright owner.  EFF and Techdirt have excellent posts about the case.  While oral argument isn't always a reliable predictor of the outcome of a lawsuit, the oral argument went very well for petitioner Kirtsaeng, who claims she has first sale rights in John Wiley's books that were purchased overseas.  UPTDATE: Here is an analysis by SCOTUSblog.

Guys and Girls Explained

Want to know what guys and girls really mean when they say things?  Click here.  (Scroll the mouse over the photos; this requires flash to work.)

Hurricane Sandy Update

I just saw the weather forecast for Hurricane Sandy, and boy is it scary.  Best of luck to all my readers on the East Coast.

One of the Reasons I Visit Reddit

It turns out that some people can't even steal things from Reddit correctly.

Digitizing Books is Fair Use

Google Books is a useful research tool.  It permits you to scan the contents of millions of books that Google paid to have digitized.  If the book is in the public domain, you can see the entire text of the book.  If the book is still under copyright, you can still see the entire text (if the copyright owner has authorized it), or you can at least see the book's table of contents and "snippets" of some of the book's text.  Either way, Google directs users to places like Amazon where you can buy an authorized copy.

Google obtained many of its books through a deal with major university libraries, including the University of California and the University of Michigan.  The libraries loaned the books to Google, which scanned the books and returned the books to the libraries with a copy of the digital scan.  Google used the digital scans for its own Google Books tool, and the libraries used the scans as well.  The libraries set up a trust, the Hathitrust, to coordinate their use of the digital scans.  The libraries had their own search feature for research purposes, and also allowed blind or print-disabled people to have access to the entire books (as permitted under the Copyright Act and the Americans with Disabilities Act).  

If all this sounds like fair use, it should.  Library research is a classic fair use.  Despite this, The Authors Guild filed two lawsuits, one against Google and one against the Hathitrust.  I helped EFF file an amicus brief in the Google books case in support of Google's fair use defense; EFF and its library co-amici filed a version of that same brief in the Hathitrust case. 

In a victory for fair use and libraries, yesterday the Judge overseeing the Hathitrust case agreed with the defendants' fair use defense and dismissed the case.  EFF's post discussing the dismissal is here; Techdirt's is here; Arstechnica's is here.  Those commentators note that this opinion's reasoning might also apply to the Google Books case, since the cases are similar.  On that point, one wonders why The Authors Guild sued the libraries directly in the first place, instead of just suing Google.  The libraries are sympathetic defendants, and part of their activities were clearly helping blind people, which the Judge's opinion referred to several times.  Beating up on blind people isn't the best way to win a lawsuit -- especially given express provisions in the Copyright Act supporting access to copyrighted works for disabled people, and the ADA's stated purpose.

Introvert Fairy Tales

Are these better than the originals?  You decide.

Copyright Infringement Is Over

The content industry has just found a foolproof way to stop copyright infringement.

Monsters U!

My daughter apparently wishes she could have gone to THIS university (instead of the college she actually went to, the best public university on the planet).

This Is What Happens When You Go On Vacation

I've been away on vacation (in China), and when I got back, my iPhone demanded that I upgrade.  So THIS happened.

Capitol v. Thomas: No Constitutional Limit on Statutory Damages?

Earlier this year I helped write EFF's amicus brief in Capitol v. Thomas.  Capitol had sued Ms. Thomas for unauthorized file-sharing of 24 songs.  After a jury awarded Capitol $1.5 million in statutory copyright damages, the trial judge reduced the award to $54,000 on Constitutional grounds.

The defendant record companies appealed the reduction of statutory damages, and last week the Sixth Circuit Court of Appeals agreed.  The Court reinstated an earlier jury award of $222,000.  That's damages of $9,250 per song, for songs that sell for about a dollar at retail.  The Court rejected arguments by EFF and Ms. Thomas that such statutory damages awards were unconstitutional.  The Court appeared to hold that an award of statutory copyright damages (1) didn't depend on whether the defendant's activities were non-commercial; (2) could punish the defendant for the acts of others (in this case, other file-sharers): and (3) did not have to bear any relationship to actual damages.

Hopefully, this reasoning will be limited to cases involving peer-to-peer file sharing, which the courts don't like.  EFF's more detailed blog past about the appellate decision is here.  Techdirt's post is here.

Warning to Teachers Everywhere

Now that school is starting, watch out for kids like this one.

The Blog Disapproves of This Holiday Gift

Because ducks and dogs just don't mix.

OK, Apple, Don't Push Those Design Patents Too Far

Apple, Inc. recently won a patent infringement lawsuit against Samsung.  The lawsuit included claims for several Apple design patents on the designs of its products.  However, perhaps Apple should not push future lawsuits too far -- it turns out there is some prior art out there.

Federal Circuit Decides Joint Liability Issue -- By Deciding Something Else

On Friday August 31, the Federal Circuit Court of Appeals released its opinion in Akamai Tech., Inc. v. Limelight Networks, Inc., and McKesson Tech. Inc. v. Epic Sys. Corp. (the court released a combined opinion in both cases).  This was a 6-5 en banc decision, meaning that all 11 active judges participated.  I had previously blogged about the court's decision to hear the Akamai case en banc, and about EFF's amicus briefs filed in Akamai and McKesson.

 The cases dealt with the issue of when a method claim is directly infringed by the combined actions of multiple parties.  In previous cases, the court had held, for example, that "where the actions of multiple parties combine to perform every step of a claimed method, the claim is directly infringed only if one party exercises "control or direction" over the entire process such that every step is attributable to the controlling party, i.e., the "mastermind."  Because the rules on direct infringement for joint (or divided) liability were causing confusion, the Federal Circuit decided to hear the issue en banc.  In the Akamai case, the question involved was:

If separate entities each perform separate steps of a method claim, under what circumstances would that claim be directly infringed and to what extent would each of the parties be liable?

In McKesson, an additional question was:

Does the nature of the relationship between the relevant actors—e.g., service provider/user; doctor/patient—affect the question of direct or indirect infringement liability?

The Federal Circuit's decision didn't answer the first question, and instead focused at most on the second question.   The majority opinion stated:

In the two cases before us, we address the question whether a defendant may be held liable for induced infringement if the defendant has performed some of the steps of a claimed method and has induced other parties to commit the remaining steps (as in the Akamai case), or if the defendant has induced other parties to collectively perform all the steps of the claimed method, but no single party has performed all of the steps itself (as in the McKesson case).

The 6-member majority opinion overruled its prior precedent (BMC v. Paymentech), but did not resolve the issue of joint or divided direct infringement.  Instead, it held that a party could be liable for actively inducing infringement of a method claim as long as the party induced one or more other parties to perform all the steps: "we hold that all the steps of a claimed method must be performed in order to find induced infringement, but that it is not necessary to prove that all the steps were committed by a single entity."

As Dennis Crouch's blog post on the case points out, inducement requires a high level of intent, which direct infringement does not.  As I emailed Dennis on Friday (see his post), the majority merely holds that an active inducer will be held liable so long as one or more parties are induced to practice all the steps of a claimed method.  Therefore, it appears that innocent actors who were "induced" by someone else will not be individually liable (unless, of course, they perform all the steps of the method claim themselves and thus are direct infringers).  That was one point of EFF's amicus briefs, so from that standpoint, the decision was not all bad.  Our briefs urged that innocent third parties (those with no level of intent) not be held strictly liable for direct infringement.  It appears that is the law. 

 

However, the court didn't decide the underlying issue on which it agreed to hear both cases en banc, that is, when there is joint (or divided) direct infringement.

 

Judge Newman's dissent would have answered the question by imposing essentially unlimited liability for direct infringement:  

The court should simply acknowledge that a broad, all-purpose single-entity requirement is flawed, and restore infringement to its status as occurring when all of the claimed steps are performed, whether by a single entity or more than one entity, whether by direction or control, or jointly, or in collaboration or interaction. . . . When the several steps of a process claim are performed by more than one entity, whether the entities operate under common direction or control, or jointly or independently or interactively, remedy for infringement is appropriately allocated based on established criteria of culpability, benefit, and the like.

Thankfully, no other judge agreed with this rule, which would have potentially imposed liability on scores of innocent third parties.  (Unlike inducement, direct infringement doesn't require any intent to infringe.)  Judge Linn, joined by three other judges, would have kept a strict rule on joint liability (his dissent also criticized Judge Newman's theories).

Techdirt's post on the case is here. 

Federal Circuit Opinion Limiting Patent Damages

Today the Federal Circuit decided LaserDyamics v. Quanta Computer.  This is an interesting case on patent damages.  The case covers a lot of interesting areas, including limits on the use of the entire market value rule, admissibility of settlement licenses, the starting date for royalty calculations, and using Daubert to challenge a large damage calculation.

The case involved LaserDyamics' patent that can distinguish between DVDs and CDs inserted into an optical disc drive.  It's useful in personal computers, particularly laptops.

First, the court reversed the use of the "entire market value" rule to calculate damages.  LaserDyamics' expert had calculated damages based on the sales of the entire computer, instead of just the disc drive portion affected by the patent.

We reaffirm that in any case involving multi-component products, patentees may not calculate damages based on sales of the entire product, as opposed to the smallest salable patent-practicing unit, without showing that the demand for the entire product is attributable to the patented feature.

. . .

LaserDynamics’ use of the entire market value rule was impermissible, however, because LaserDynamics failed to present evidence showing that the patented disc discrimination method drove demand for the laptop computers. It is not enough to merely show that the disc discrimination method is viewed as valuable, important, or even essential to the use of the laptop computer. Nor is it enough to show that a laptop computer without an ODD practicing the disc discrimination method would be commercially unviable. Were this sufficient, a plethora of features of a laptop computer could be deemed to drive demand for the entire product. To name a few, a high resolution screen, responsive keyboard, fast wireless network receiver, and extended-life battery are all in a sense important or essential features to a laptop computer; take away one of these features and consumers are unlikely to select such a laptop computer in the marketplace. But proof that consumers would not want a laptop computer without such features is not tantamount to proof that any one of those features alone drives the market for laptop computers. Put another way, if given a choice between two otherwise equivalent laptop computers, only one of which practices optical disc discrimination, proof that consumers would choose the laptop computer having the disc discrimination functionality says nothing as to whether the presence of that functionality is what motivates consumers to buy a laptop computer in the first place. It is this latter and higher degree of proof that must exist to support an entire market value rule theory.

Second, an issue in the case was when the licensing experts should figure out the "hypothetical negotiation" began to calculate a royalty.  Since Quanta wasn't liable for actively inducing infringement until August 2006, LaserDynamics' expert used that date, instead of the earlier date when Quanta began selling the computers.  The Federal Circuit rejected that approach:

Thus, we hold that in the context of active inducement of infringement, a hypothetical negotiation is deemed to take place on the date of the first direct infringement traceable to QCI’s first instance of inducement conduct—in this case, 2003.

Third, the court excluded a prior settlement agreement as "the least reliable license by a wide margin."  The settlement in question was forced on the settling party due to a series of adverse decisions in the litigation.

Finally, the court held that LaserDynamics' experts use of a 6% running royalty wasn't reliable or admissible: "In sum, the 6% royalty rate was untethered from the patented technology at issue and the many licenses thereto and, as such, was arbitrary and speculative."

In sum, this opinion is quite favorable to limiting excessive patent damages.

Apple Wins Huge Verdict Against Samsung

Today a San Jose jury awarded Apple over $1 billion against Samsung in a patent infringement case over features of the iPhone and iPad.  The verdict form is here (assuming the link works; the jury was then asked to clarify some things, resulting in an amended verdict form).  Dennis Crouch and Joe Mullin explain the verdict (Joe's post also has a copy of the verdict).  According to The Verge, there will be a hearing on September 20 to consider Apple's request for an injunction and Samsung's motions to set aside the jury verdict.  

As EFF explains, it's not clear whether this outcome is actually good for either innovators or for smartphone and tablet consumers.

Thanks to Judge Alsup and Google for Publicizing My Blog!

I wrote previously about the Oracle v. Google trial involving the copyrightability of Java APIs.  A few weeks ago, Judge Alsup ordered Oracle and Google to disclose if they had paid money to anyone who had commented or blogged about the case.  I figured that wouldn't include me -- neither party pays me anything to write this blog.

After Oracle and Google filed their disclosures, the Judge ordered Google to do a better job.  That order included organizations to whom the parties gave money and whose employees commented or blogged -- whether or not the payment was to comment about the case.  That was quite a broad standard for disclosure.  I figured that might include the Electronic Frontier Foundation (EFF), since Google donates to EFF and (independently of the donations) EFF blogged about the case.  I still didn't figure it would include me, since EFF doesn't sponsor my blog, and I'm not an EFF employee anyway -- I'm an unpaid volunteer.

Today Google filed its supplemental disclosure.  Google made it clear that "neither it nor its counsel has paid an author, journalist, commentator or blogger to report or comment on any issues in this case."  However, at page 7, Google identified its contributions to EFF, and identified EFF's blog posts about the case.  But Google also identified this blog and me. 

Michael Barclay, now a volunteer fellow for the Electronic Frontier Foundation, commented on the case on his blog, IP Duck.  See Ex. Y (available at http://ipduck.blogspot.com/2012/05/judge-alsup-rules-that-java-apis-are.html); Ex. Z (available at http://ipduck.blogspot.com/2012/05/phase-one-verdict-in-oracle-v-google.html). Mr. Barclay’s interest in the copyrightability of software interfaces, however, long predates his association with EFF, and in fact predates Google’s existence—Mr. Barclay represented Borland in Lotus v. Borland. Ex. AA (Borland’s Supreme Court merits brief).

I assume Google was just being overly careful here by including me although it didn't really have to.  (Or as Mike Masnick put it -- since Google also listed him and his Techdirt blog -- "Apparently I'm a Google Shill and I Didn't Even Know It.")  Anyway, since people will read this filing, my thanks to Judge Alsup and Google for publicizing this blog!

Update: Here's Eric Goldman's post about this filing.

Oh Darn, I Should Have Gone Here When I Was in Israel

I went to Israel a couple of years ago, but somehow missed this: "Israeli biblical park outfits donkeys with wi-fi."  Darn.

Patent of the Day -- The Taco Shell!

I just came across U.S. Patent No. 2,570,374, which covered the commercial taco shell.  A truly historic invention in the food industry.

My Musician Friends and I Already Knew This

Why choose?

Ian Fleming, George Lucas, Lewis Carroll and Others Rewrite "Lord of the Rings."

Read them all here.  For example, here's the one by George Lucas:

"Did you ever wonder who your father was, Frodo?"

"Uncle Bilbo was my father, Obi Gan Dalf."

"Your Uncle is a fine man, but he is not your father. Your father was a fine warrior and a great captain, strong in the Force. He was called Sarumann the Wise, and he was a good friend."

"Was? Is he dead?"

"He is no more. It is your destiny to avenge his death, young Baggins."

Federal Circuit Reaffirms Patentability of Isolated Gene Sequences, But Not Methods for "Comparing" or Analyzing" Them

Last July the Federal Circuit issued an opinion the Myriad case involving the patentablity of genes directed to detection of breast cancer and related methods for using them, which I blogged about here.  

 

In March 2012, the U.S. Supreme Court issued an opinion in Mayo v. Prometheus, which I also blogged about.  Mayo limited the patentablity of medical diagnostic processes.  Following that decision, the Supreme Court ordered the Federal Circuit to reconsider its decision in view of Mayo's reasoning.

 

Today the Federal Circuit issued a new opinion in Myriad.  To summarize 106 pages very briefly, there was no change in the outcome from last year's original opinion.  Isolated DNA remains patentable subject matter, as do some of the method claims.  However, some of the method claims (method claims directed to comparing or analyz-ing gene sequences) are unpatentable.  Judge Bryson again dissented on the isolated DNA claims.  

 

Expect a cert petition or two.

Recent Patents You Don't Need

Here's a slideshow of some recently-granted patents that you don't need. 

Best Escalator Ever?

Imagine doing something like this in 1977.

Good Thing I Don't Have a Cat

Because if I did, something like THIS would happen to me.

My Latest EFF Amicus Brief

Today EFF filed an amicus brief in The Authors Guild v. Google, a case in the Southern District of New York.  I helped prepare that brief.  EFF's press release describes the case as follows:

The Electronic Frontier Foundation (EFF) filed an amicus brief today urging a federal court to find that the fair use doctrine shelters Google's Book Search "snippet" project from copyright infringement claims from the Authors Guild. EFF was joined by three associations representing over 100,000 libraries, the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries.

For years, Google has been cooperating with libraries to digitize books for a searchable database available to the public. Google Book Search now includes over 12 million works that users can search for keywords. Results include titles, page numbers, and small snippets of text. Google Book Search has become an extraordinarily valuable tool for librarians, scholars, and amateur researchers of all kinds. For example, librarians surveyed about Google Book Search said the service can help them find valuable research sources inside their own libraries as well as lead them to rare books they can borrow from other institutions. Many librarians say that they have purchased new books for their collections after discovering them through using Google Book Search. However, the Authors Guild argues that its members are due compensation in exchange for their books being digitized and included in the database – even though blocking Google Book Search's digitization wouldn't bring any author any additional revenue.

"Google Book Search is a reference tool that helps people find books. It doesn't take the place of sales," said EFF Fellow Michael Barclay. "The fair use doctrine allows for services like Google Book Search – they cause no economic harm and serve the welfare of the public."

The amicus brief filed today is part of EFF's long involvement in Authors Guild v. Google. In 2009 EFF and a coalition of authors and publishers objected to a proposed broad settlement of the case that would have created a business for Google selling access to whole books, based on the failure of the settlement to protect the privacy of readers. A judge rejected that broad settlement last year. Now Google seeks approval of the more narrow search and snippet project, and EFF agrees that the fair use doctrine applies.

"Google Book Search is a digital update to the old card catalog that helps libraries, helps researchers, and ultimately helps authors reach their audiences," said EFF Legal Director Cindy Cohn. "We hope the court protects Google Book Search – and the researchers and other readers who depend on it – from these meritless copyright claims."

What to Get For the Person Who Has Everything

The perfect gift:  A Magical Unicorn Mask.  Especially if it's as good as some of the reviews -- this one, for example:

I'm going to be honest, I have tried several different unicorn masks in the past. I have about 6 masks from various retailers around the internet and I've gotta say, this is the right one for me. When I put it on, I feel the rush of pretending I am a real-life unicorn! It is so realistically styled that there's a connection I feel deep inside when I put it on.

As mentioned in other reviews, the mask is very durable. The latex holds up well against brush and other woodland undergrowth. However, I found that when I tried to spear some pineapple from a tree or defend myself from approaching predators, the rubbery material of the horn just didn't hold up as well as I needed it to. More times than I'd like to admit, I had to gallop away from an attacking bear instead of standing proud and defending my honor like an actual unicorn. The solution I came up with was to simply reinforce the hollow inside of the horn with steel rods welded in a cylindrical shape. I just gorilla glued the metal into place (making sure a longer, pointed rod stuck out of the end so that I can pierce the hearts of my enemies) and voila!

Now I have a sweet unicorn mask that lets me fulfill all of my unicornical fantasies. You will not be disappointed in this mask.

"2001: A Space Odyssey" Trailers -- Then and Now

Stanley Kubrick's "2001: A Space Odyssey" is one of the all-time classics.  It was released in 1968.  To get an idea of how movie trailers have changed between then and now, watch either this trailer or this other trailer from 1968 -- and compare them to someone's 2012 rework of what the movie's trailer would look like now.

Bored of the Regular Olympics?

Watch the Lego Olympics.

Internet Defense League

Today I signed this blog up for the Internet Defense League.  If you have a web site or a blog, you might want to look into it.

Relativistic Baseball!

What happens if a baseball was pitched at 90% of the speed of light?  "A careful reading of official Major League Baseball Rule 6.08(b) suggests that in this situation, the batter would be considered "hit by pitch", and would be eligible to advance to first base."

Regional Patent Office to Open in Silicon Valley

The U.S. Patent Office announced today that it will open a regional office in Silicon Valley, California.  Hooray!

Further Briefing in UMG V. Veoh

A few weeks ago the Ninth Circuit asked for further briefing in UMG v. Veoh, which I wrote about in this post.  As I explained, in response to UMG's petition for rehearing, the Court asked the parties to brief the effect of the Second Circuit's Viacom v. YouTube decision.  Both the Ninth Circuit and Second Circuit opinions largely interpreted the DMCA in ways that favored the user-generated content (UGC) websites, Veoh and YouTube, and that disagreed with interpretations requested by UMG, Viacom, and other content providers.  However, on a few issues, the Second Circuit had different views than the Ninth Circuit.

The parties have now filed their briefs.  UMG's brief is here; Veoh's brief is here; a separate brief by Shelter Capital Partners (the Veoh investors that UMG also sued) is here.  Not surprisingly, Veoh argued that it was still entitled to summary judgment under the Second Circuit's standard, should the Ninth Circuit choose to agree with the Second Circuit in those few areas where the courts initally disagreed.  UMG had a more difficult task.  UMG disliked the legal rules proposed by both the Ninth and Second Circuit.  Thus, UMG's brief asked the Ninth Circuit not to adopt the Second Circuit's views, but rather arguments that both circuit courts had already rejected.

My prediction is that sometime in the next two to six months (depending on how busy the Judges are with other matters) we will see an amended opinion in UMG v. Veoh, adopting some if not all of the reasoning of the Second Circuit.  Doing so might or might not require a remand to the district court for more summary judgment proceedings, as the Second Circuit ordered in Viacom v. YouTube (my guess is not).  UMG would then have to try to persuade the Supreme Court to hear a case where the two circuit courts that hear most of the nation's copyright appeals are in substantial or complete agreement -- it's unlikely the Supreme Court would act in such circumstances.

More Proof That the Internet Is **Indeed** Made of Cats

Because you might think that the Affordable Care Act (a/k/a Obamacare) has nothing to do with cats.  But it does.

I Am Definitely NOT Moving to the East Coast

Best weather forecast ever?  You decide.

But the "IPCat" Blog Just Doesn't Sound Right

Today, we indeed have proof that the Internet is made of cats.  Courtesy of Google, of course.

Haiku of the Day

Thanks to the Huffington Post for the perfect Haiku:

Five syllables here

Seven more syllables there

Are you happy now??

Dave Barry's Christmas Gift Guide Comes Early This Year

Introducing . . . The Squatty Potty.  In particular the videos have . . . a little too much information.

Order for Further Briefing in UMG v. Veoh

I have written previously about the UMG v. Veoh and Viacom v. YouTube cases.  Briefly, both cases involve claims by content owners that the operators of user-generated content (UGC) websites such as YouTube and Veoh are liable when their users post allegedly infringing content.  Both YouTube and Veoh convinced trial courts that they are not liable for such postings because they complied with the notice-and-takedown procedure of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c).  The UGC sites claim that upon receipt of proper requests, they promptly took down any infringing content.

Both sets of content owners appealed.  In December 2011, the Ninth Circuit Court of Appeals affirmed the trial court's summary judgment in favor of Veoh.  In April 2012, the Second Circuit Court of Appeals affirmed the trial court's summary judgment in favor of YouTube in part, but remanded the case in part for further fact finding on some issues (and possible further summary judgment briefing).  I discussed both opinions here and here.  In the YouTube case, the Second Circuit agreed with the Ninth Circuit's decision on many issues, but not all of them.

After the December 2011 decision in the Veoh case, the plaintiffs asked the Ninth Circuit to rehear the case.  After reading the April YouTube decision, the Ninth Circuit decided to rethink its Veoh opinion.  In an order last week, the Ninth Circuit asked the parties in Veoh to file additional briefs on the following issues:

     On December 20, 2011, this Court issued its opinion in UMG Recordings v. Veoh Networks, 667 F.3d 1022 (9th Cir. 2011), affirming in part, remanding in part and upholding the District Court’s grant of summary judgment because the defendants were protected by the Digital Millennium Copyright Act (DMCA) safe harbor provisions. The Appellants have filed a petition for rehearing and rehearing en banc, and the Appellees have filed a response.

     The Appellants argue, inter alia, that (1) the panel decision has conflated the 17 U.S.C. § 512(c)(1)(A)(i) actual knowledge standard and the § 512(c)(1)(A)(ii) “red flag” knowledge standard, see PFR/EB 12-15; and (2) by importing a knowledge requirement into § 512(c)(1)(B) (the “right and ability to control” provision), the panel decision has rendered it duplicative of § 512(c)(1)(A), see PFR/EB 15-17.

     After briefing was completed on the pending petition, the Second Circuit issued its opinion in Viacom International v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012). The Second Circuit held, in relevant part, that (1) the § 512(c) safe harbor (including the “red flag” provision) requires knowledge or awareness of specific infringing activity, see id. at 30-35; and (2) the District Court erred by importing a specific knowledge requirement into the § 512(c)(1)(B) “right and ability to control” provision, see id. at 36-38.

     Within 21 days of the date of this order, each party shall file a supplemental brief, not exceeding 3800 words or 15 pages, addressing certain relevant issues pending before this Court in light of the Second Circuit’s opinion in Viacom. Specifically, the parties should address the following questions:

1. Actual and “red flag” knowledge

The Second Circuit held:

The difference between actual and red flag knowledge is . . . between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement.

Viacom at 31. Does the Second Circuit draw the correct distinction between actual and red flag knowledge? If so, does the distinction affect the disposition of this case?

2. “Right and ability to control”

     Does a service provider have to be aware of the specific infringing material to have the “right and ability to control” the infringing activity? Does importing such a knowledge requirement make it duplicative of § 512(c)(1)(A)? If there is no knowledge requirement, does a copyright holder need to show that a service provider possesses “something more than the ability to remove or block access to materials posted on a service provider’s website” in order to have the right and ability to control infringement? Id. at 38 (citations and internal quotation marks omitted). If so, what must the copyright holder show? Should this Court adopt the Second Circuit’s resolution of these questions? See id.

This briefing will likely result in an amended decision in the Veoh case.  That isn't necessarily bad news: there's a good chance that Veoh still wins depending on how the Ninth Circuit decides these issues.  And if the Ninth Circuit fully agrees with the Second Circuit, that lessens the possibility that the U.S. Supreme Court will decide to hear either case.

That Darn Modern Technology

A student brings a typewriter to class instead of a laptop. Hilarity ensues.  YouTube link is here.

Haiku Error Messages

Apparently the BeOS operating system used haiku error messages.  A sample:

Yesterday it worked
Today it is not working
The web is like that.

The web site you seek
Lies beyond our perception
But others await.

Error reduces
Your expensive computer
To a simple stone.

First snow, then silence.
This expensive server dies
So beautifully.

and the most well known one:

These three are certain:
Death, taxes, and site not found.
You, victim of one.

Pigs Fly Safely: With EFF's Support, Viacom Wins Fair Use Lawsuit

In December 2011, I wrote about my EFF amicus brief where EFF supported . . . Viacom.  I noted that this was a bit unusual.

EFF supported Viacom and its "South Park" subsidiary in Brownmark v. Comedy Partners because Viacom had been sued for making a parody of Brownmark's music video in a South Park episode.  EFF supported Viacom's right to make such parodies, and to get copyright suits against such parodies dismissed at the pleading stage, avoiding costly discovery and trial.

Today the Seventh Circuit Court of Appeals ruled in favor of Viacom and South Park, finding that the parody video was fair use, and that courts could dismiss cases at the pleading stage based on fair use.  The court stated:

The expense of discovery, which SPDS stressed at oral argument, looms over this suit. SPDS, and amicus, the Electronic Frontier Foundation, remind this court that infringement suits are often baseless shakedowns. Ruinous discovery heightens the incentive to settle rather than defend these frivolous suits.

I'm pleased that the copyright universe is safe for flying pigs, and the fair use defense in particular.  EFF's blog post about this decision is here.  Update: Techdirt's post about this opinion has links to the two videos.  And another blogger claims that this is the first appeals court decision to use the term "copyright troll."

I Just Have to Buy This Book When It Comes Out

If not just for this article's headline: "Copyright law threatens to destroy the world, in Year Zero."  And best of all, it's a real book!

My Friends in Texas Should NOT Click Here

However, if you live in Alaska, click away.

Judge Alsup Rules that Java APIs Are Not Copyrightable

In the well-publicized Oracle v. Google case, Judge Alsup has ruled that Java APIs are not copyrightable, at least to the extent of Google's limited use of the APIs in Android.  Judge Alsup relied on the Lotus v. Borland case I worked on many years ago, and other similar cases, to reject Oracle's copyright claim.  Since a jury ruled that Google didn't infringe the two Oracle patents being tried, that leaves Oracle with a minimal damages claim for a few lines of code (not related to the API claim).  Techdirt's writeup of this decision is here; EFF's post is here; Eric Goldman's post (by Tyler Ochoa) is here.

Some key points of Judge Alsup's ruling are as follows:

In view of the foregoing, this order concludes that our immediate case is controlled by these principles of copyright law:
• Under the merger doctrine, when there is only one (or only a few) ways to express something, then no one can claim ownership of such expression by copyright.
• Under the names doctrine, names and short phrases are not copyrightable.
• Under Section 102(b), copyright protection never extends to any idea, procedure, process, system, method of operation or concept regardless of its form. Functional elements essential for interoperability are not copyrightable.
• Under Feist, we should not yield to the temptation to find copyrightability merely to reward an investment made in a body of intellectual property.

As long as the specific code written to implement a method is different, anyone is free under the Copyright Act to write his or her own method to carry out exactly the same function or specification of any and all methods used in the Java API. Contrary to Oracle, copyright law does not confer ownership over any and all ways to implement a function or specification, no matter how creative the copyrighted implementation or specification may be.  The Act confers ownership only over the specific way in which the author wrote out his version.  Others are free to write their own implementation to accomplish the identical function, for, importantly, ideas, concepts and functions cannot be monopolized by copyright.

Much of Oracle’s evidence at trial went to show that the design of methods in an API was a creative endeavor. Of course, that is true. Inventing a new method to deliver a new output can be creative, even inventive, including the choices of inputs needed and outputs returned.  The same is true for classes. But such inventions — at the concept and functionality level — are protectable only under the Patent Act. The Patent and Trademark Office examines such inventions for validity and if the patent is allowed, it lasts for twenty years. Based on a single implementation, Oracle would bypass this entire patent scheme and claim ownership over any and all ways to carry out methods for 95 years — without any vetting by the Copyright Office of the type required for patents. This order holds that, under the Copyright Act, no matter how creative or imaginative a Java method specification may be, the entire world is entitled to use the same method specification (inputs, outputs, parameters) so long as the line-by-line implementations are different. To repeat the Second Circuit’s phrasing, “there might be a myriad of ways in which a programmer may . . . express the idea embodied in a given subroutine.” Computer Associates, 982 F.2d at 708. The method specification is the idea. The method implementation is the expression. No one may monopolize the idea.

To carry out any given function, the method specification as set forth in the declaration must be identical under the Java rules (save only for the choices of argument names). Any other declaration would carry out some other function. The declaration requires precision.  Significantly, when there is only one way to write something, the merger doctrine bars anyone from claiming exclusive copyright ownership of that expression. Therefore, there can be no copyright violation in using the identical declarations. Nor can there be any copyright violation due to the name given to the method (or to the arguments), for under the law, names and short phrases cannot be copyrighted.

In sum, Google and the public were and remain free to write their own implementations to carry out exactly the same functions of all methods in question, using exactly the same method specifications and names. Therefore, at the method level — the level where the heavy lifting is done — Google has violated no copyright, it being undisputed that Google’s implementations are different.

Interoperability sheds further light on the character of the command structure as a system or method of operation. Surely, millions of lines of code had been written in Java before Android arrived. These programs necessarily used the java.package.Class.method() command format. These programs called on all or some of the specific 37 packages at issue and necessarily used the command structure of names at issue. Such code was owned by the developers themselves, not by Oracle. In order for at least some of this code to run on Android, Google was required to provide the same java.package.Class.method() command system using the same names with the same “taxonomy” and with the same functional specifications. Google replicated what was necessary to achieve a degree of interoperability — but no more, taking care, as said before, to provide its own implementations.

In closing, it is important to step back and take in the breadth of Oracle’s claim. Of the 166 Java packages, 129 were not violated in any way. Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines. Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof — even though it copyrighted only one implementation. To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.  No holding has ever endorsed such a sweeping proposition.

"The Pirate Bay Cries Foul Over Pirate Bay Copycats"

 IP and humor story of the day: "The Pirate Bay advises fans to use the authentic, original ThePirateBay and not some crummy rip-off."

Darth Seder!

Shame that Passover was a little while ago.

MAD Magazine Helpfully Explains Why "The Avengers" Made $200 Million Opening Weekend

MAD Magazine helpfully explains why "The Avengers" made $200 million in its opening weekend.

Phase One Verdict in Oracle v. Google, and It's a Mess

The Oracle v. Google case is being tried in San Francisco federal court.  The jury came back this morning with a partial verdict on Oracle's copyright claim (phase one).  Oracle claimed that Google infringed the APIs (Application Program Interfaces) in the Java language.  The jury decided that Google infringed the "overall structure, sequence and organization" of the APIs, but did not reach a verdict of whether this is fair use or not.  It is highly debatable whether API's are copyrightable at all -- the Judge will have to decide that -- and the jury's failure to decide fair use creates a real mess.  Articles by Techdirt and Ars Technica describe the mess.  Update: Here's EFF's post on the verdict.

Interesting Article About Mayo v. Prometheus

Last month I blogged about the Supreme Court decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.  The case involved the patentability of medical diagnostic techniques, and has potentially broader implications for other types of technologies.

My colleague Bernard Chao wrote an interesting article about the case, "Moderating Mayo," which can be downloaded on SSRN.  I agree with Bernard's view that the "point of novelty" can be a useful tool in evaluating patents.

Viewing Patent Drawings Without Context

Mike Masnick and io9 have reported about a website that collects a bunch of patent illustrations without the context of their surrounding textual explanation.  The website is called "Context-Free Patent Art."  Here's an example:

 

Twitter's Anti-Troll Innovator’s Patent Agreement

Speaking of patent trolls, today Twitter announced that it will be handling invention assignments differently than most other companies.  Usually, companies require their employees to assign inventions to the company without any restrictions or limits on what the company can do with any resulting patent.  Twitter has agreed to limit its use of any patents to defensive purposes, to try to make the patents useless for any troll that later might acquire the patent and to try to improve the patent system.  We'll see if this becomes a trend.

"Don't negotiate with terrorists"

Drew Curtis, the head of one of my favorite humor web sites, www.fark.com, gave an interesting TED talk on his experience being sued by a patent troll.  His advice won't work for everyone, but it's interesting.

10 Amazing Practical Jokes

Want to lose your friends?  Try some of these.

Lawsuit of the Day

The Bank of America has decided to sue itself.  Fortunately, there is legal precedent for such a suit.

Viacom v. YouTube: Both Sides Declare Victory

Yesterday the Second Circuit Court of Appeals released its opinion in Viacom v. YouTube.  The Court affirmed much of the reasoning of the district court's opinion granting summary judgment in favor of YouTube, but remanded the case for certain fact-finding specific to that case.  (I previously summarized the case here and here, and discussed a related decision from the Ninth Circuit, UMG v. Veoh (Shelter Capital Partners), here.  Briefly, Viacom v. YouTube involves the liability of user-generated content (UGC) websites such as YouTube when their users post allegedly infringing content, and specifically how UGC sites can defend such liability using the "safe harbor" of the DMCA, 17 U.S.C. §512.)

Judging from the public press so far, both sides have declared victory.  According to TechCrunch, Viacom is "pleased with the decision" and its "message" that "intentionally ignoring theft is not protected by the law."  However, the same article quotes YouTube as saying that the "Second Circuit has upheld the long-standing interpretation of the DMCA and rejected Viacom's reading of the law."  Similarly, the L.A. Times reports that "Both sides found something to cheer about in the decision"; the Washington Post is similar.  The Hollywood Reporter's headline begins "Court Sides with Viacom," but then notes that "the 2nd Circuit mostly agrees with YouTube’s interpretation of the statute."  The San Francisco Chronicle somewhat bizarrely stated "YouTube loses" (a newspaper that close to Silicon Valley should know better).

Commentators such as Eric Goldman view the decision as creating difficulties for UGC websites like YouTube, but EFF, Public Knowledge, CDT and NetCoalition all seem to view the ruling as favorable to UGC sites.  Mike Masnick initially viewed the decision as mostly favorable, but tempered his views after reading Prof. Goldman's post.

I agree that the case is mostly favorable to UGC sites, particularly ones that are careful about the handling of user-generated content at the startup stage.  The key issues are as follows.

Knowledge Requirements.  The Second Circuit described the "first and most important question on appeal" as "whether the DMCA safe harbor at issue requires “actual knowledge” or “aware[ness]” of facts or circumstances indicating “specific and identifiable infringements.”  Viacom and its content industry supporters argued that general knowledge or awareness on the web site was enough to defeat the safe harbor; YouTube and its technology industry supporters argued that knowledge of specific infringing activity was required.

On this issue, the Court agreed with YouTube, and it's an important issue.  I was always troubled by Viacom's "general knowledge" theory for several reasons.  Most web sites are "generally" aware of some infringements on their web site, particularly for sites that host a great deal of user-generated material.  Viacom's theory would have unbounded implications.  Would a UGC site lose its safe harbor just upon a showing that at one time it knew of some infringements?  Would a single stray email impose liability for all works, by all copyright owners, for all time?  Could a web site never qualify for the safe harbor if it ever once had some "general knowledge"?  As I pointed out in my amicus brief for the CEA, could a content owner (or a competitor) forever disqualify a UGC site from the safe harbor simply by sending it a brief letter "notifying" the site of "general knowledge of infringements"? The problem raised by the "general knowledge" theory, and by such questions, is that there is no correlation or causal connection between the "general knowledge" and disqualification for the safe harbor for the particular works involved in a lawsuit.

The Second Circuit got this right.  It consistently focused on specific knowledge requirements, and in particular used phrases such as "specific infringing activity" or "specific infringements" over 40 times (even excluding the section analyzing the "control and benefit" issue discussed below).  The Court said it was "persuaded that the basic operation of § 512(c) requires knowledge or awareness of specific infringing activity."  The opinion then did one of the best jobs I've seen of rebutting Viacom's argument that the alternate showing of "red flag" knowledge could be satisfied by "general" red flag knowledge, and pointed out that "actual knowledge" and "red flag knowledge" both require knowledge of specific infringements:

The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person.  . . . Both provisions do independent work, and both apply only to specific instances of infringement.

Later, the court discussed "willful blindness" as an alternative to actual knowledge.   (The opinion described this as meaning that a "person is “willfully blind” or engages in “conscious avoidance” amounting to knowledge where the person “‘was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.’”)  The court first rejected the concept that "willful blindness" imposes any duty of a UGC site to affirmatively monitor its site -- that was one of the main arguments by Viacom and its supporters.  While the court did allow this doctrine to be used, it again limited it to specific infringing activity: "the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA."

The result of the above discussion was to send the case back to the trial court, but not for judgment in Viacom's favor, or even necessarily for a trial.  Rather, the court merely told the trial court to examine the record more carefully to see if YouTube had specific knowledge of "particular clips or groups of clips," and then reconsider summary judgment.  This means that, at worse, YouTube might have some liability only for some specific clips, not all of them as the plaintiffs contended.  And for UGC sites in general, if they avoid the behavior shown in some of YouTube's early emails, they can fully comply with the "actual knowledge" requirement of the statute.

"By Reason of Storage":  As had UMG in the Veoh case, Viacom argued that YouTube didn't qualify for the safe harbor because the videos weren't stored at the direction of the users.  Like the Ninth Circuit, the Second Circuit rejected this argument for all but a small quantity of YouTube's videos.  For example, Viacom argued the safe harbor only applied when users stored videos, but not when they were played back -- in other words, that the Internet is a black hole that can only swallow information.  The court rejected this argument, as well as Viacom's arguments that YouTube's conversion of user videos for later viewing and its display of "related videos" were outside the statute.

YouTube did one additional thing: it selected certain videos for syndication for Verizon mobile devices.  The court held that this manual selection wasn't at the "direction of a user" and might not qualify for the safe harbor.  However, the court limited any exposure (again) only to those particular videos, and told the trial court to see if any of those videos were actually the subject of Viacom's claims.

"Right and Ability to Control":  As Eric Goldman and Mike Masnick point out, the primary unfortunate part of the opinion deals with the issue of whether the UGC site has the "right and ability to control" infringing activity, where the site receives a financial benefit directly attributable to the infringing activity.  YouTube argued that this factor also is limited to knowledge of specific infringing items; the trial court had agreed, as had the Ninth Circuit in the Veoh case.   Viacom and its supporters argued that "control" means the mere ability to take down infringing works.

The Second Circuit rejected both of these views, but didn't give much guidance.  It agreed that "something more" is required than the mere ability to remove or block access to the UGC materials.  Rather than say what that "something more" actually is, it gave two examples where the service provider exerts "substantial influence" on the activities of users.  In one example, the service provider gave its users detailed instructions and requirements of what to do and not to do.  The other example involved inducing infringement under the Grokster case.

While we don't know what "substantial influence" means, it would appear to mean a lot more than merely letting users upload content, as sites such as YouTube, Veoh, Facebook and others have done.  As long as the web site doesn't get substantially involved in telling users what to do, it probably will pass this test.  An analogous and possibly helpful case is the Roommates.com decision from a few years ago.  In that case, Roommates.com lost its immunity under Section 230 of the CDA because it forced its subscribers to answer certain questions that allegedly were discriminatory (which the court ironically found later were not discriminatory, but that's another issue).  And the Grokster standard arguably requires the plaintiff to show: (1) that the defendant acted with the specific objective of promoting the use of its product to infringe; (2) that the defendant furthered that objective by affirmative measures taken to foster infringement; and (3) that the infringement at issue actually resulted from the defendant’s inducing conduct.  Most UGC sites don't require or tell their users to upload infringing content, so they hopefully will be safe under that standard.

So while the Second Circuit decision wasn't the total victory for YouTube that the trial court decision was, at a minimum it greatly limits YouTube's potential exposure, and is vastly better than what Viacom sought.  And it seems like something that careful UGC sites can live with going forward.

Update: I went back to check YouTube's brief.  What do you know, the Second Circuit's above discussion of "red flag" knowledge largely tracks pages 31-34 of YouTube's brief.  Good job.