"17 Reasons Why The Kids Don't Like Facebook Anymore"

Usually when I post a list, I say which items on the list are the best ones.  But these are all great.

My Latest EFF Amicus Brief: WildTangent v. Ultramercial

Today EFF filed the latest amicus brief that I helped write.  Our brief supports WildTangent's request that the Supreme Court hear a lawsuit brought by Ultramercial LLC.  Ultramercial owns U.S. Patent No. 7,346,545. The patent claims, in essence, showing a consumer copyrighted video over the Internet, provided that the consumer is shown advertising first.  If that sounds like it shouldn't be patented, EFF agrees:  EFF's blog post about today's amicus brief is here.  That post contains links to many previous posts about the case, which has been going on for some time.

The district court had dismissed the lawsuit on the ground that the patent claims were impermissibly abstract under 35 U.S.C. §101.  That statute prohibits patents on abstract ideas.

The Federal Circuit Court of Appeals reversed the district court, but WildTangent asked the Supreme Court to hear the case.  The Supreme Court ordered the Federal Circuit to reconsider in view of a Supreme Court case interpreting §101, Mayo Collaborative Services v. Prometheus Laboratories.  The Federal Circuit issued a new opinion again reversing the district court.

In plain English:  The patent takes an abstract idea -- showing people copyrighted content if they watch an advertisement first -- and adds limitations such as "the Internet." The Federal Circuit's view is that adding "the Internet" to an abstract idea somehow makes it patentable.  Along with many other people, EFF disagrees.  We hope the Supreme Court will hear this case and invalidate this patent.

UPDATE:  Techdirt has this story on Public Knowledge's fine amicus brief also supporting the cert. petition.

Do You Enjoy TED Talks?

Do You Enjoy TED Talks?  Here is how they are made.

The 2013 Ig Nobel Prizes

The 2013 Ig Nobel Prizes are out. Best ones:

• The Medicine Prize, for "assessing the effect of listening to opera, on heart transplant patients who are mice"
• The Psychology Prize, for "confirming, by experiment, that people who think they are drunk also think they are attractive"
• The Physics Prize, for "for discovering that some people would be physically capable of running across the surface of a pond — if those people and that pond were on the moon." 
• Finally, the Peace Price, to the "president of Belarus, for making it illegal to applaud in public, AND to the Belarus State Police, for arresting a one-armed man for applauding."

Monty Python and The Holy Grail Trailers: Then and Now

Monty Python and The Holy Grail is a 1975 comedy classic.  Typical of that oddball comedy troupe, the 1975 trailer for the movie was, shall we say, a bit strange.

Someone has now created a 2013 "modern" trailer for the movie.  As Monty Python's Eric Idle tweeted, "it's really good."

How Do You Know When You're Middle-Aged?

"How Do You Know When You're Middle-Aged?"
Sample answer: "You struggle with new technology such as the heavy plough and the longbow."

Best Response Ever to a Cease-and-Desist Letter?

Apparently the American Bankers Association (ABA) thinks it owns the copyright in federal bank routing numbers.  These are the numbers that appear on the bottom and sometimes the top right of checks that identify the check writer's bank. 

The ABA sent a cease-and-desist letter to Greg Thatcher, whose web site listed and indexed the routing numbers, and demanded that he take down the numbers. (After a 1991 Supreme Court decision, most competent copyright lawyers would never even have made such a claim, but never mind.)

Mr. Thatcher obtained pro bono counsel to represent him.  That lawyer, Andrew Delaney, wrote one of the best responses to a cease-and-desist letter ever.  On the merits, the letter points out that (1) things like routing numbers aren't subject to copyright protection, (2) since the numbers were published without a copyright notice starting in 1911, any copyright would be lost for numbers published during the time the 1909 Copyright Act applied, and (3) Thatcher's use of the numbers would be fair use anyway.

But the best part is the humor in the letter.  Especially the footnotes.  Such as footnote 7:  "And we went to law school, which just illustrates how gullible we are."  And then there's the closing offer to accept service of process on behalf of Thatcher:

If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and we have lollipops for people who serve process.  So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple . . . we all like purple.

A Mathematician, a Physicist, an Engineer, a Computer Scientist, and an Economist Attempt to Split a Check

A mathematician, a physicist, an engineer, a computer scientist, and an economist attempt to split a check.  Nobody looks good, but perhaps the economist gets the worst of this story:

Economist: Let’s each write down the amount we’re willing to put in, then auction off the remainder at some point on the contract curve.

Physicist: Huh?

Mathematician: Like most economics, that’s just gibberish with the word “auction” in it.

"3 Reasons Why Every News Story Should Be About Ducks"

Cracked has a great article, "3 Reasons Why Every News Story Should Be About Ducks."  As the story says, "Yes, duck news is the perfect news."  We already knew that.  Here are the reasons:

     #3. Ducks Are the Roombas of the Animal Kingdom
     #2. Ducks Drain Humans All of Dignity
     #1. Duck News Represents an Ideal World

The explanations are worth reading -- they include some great stories about ducks.

Interesting TED Talk on Some Problems With IP Law

Here is an interesting TED talk on some problems with IP law.  It starts out by singing "Happy Birthday to You."  Don't sing along, though, you might get into trouble.

Opening Round Briefs in Second Viacom v. YouTube Appeal

The long-running saga of Viacom v. YouTube continues.  As you may remember, 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.  In June 2010, the district court granted summary judgment to YouTube on its safe harbor defense.  In April 2012, the Second Circuit Court of Appeals affirmed much of the district court's reasoning, but remanded the case for further fact finding.  In April 2013, the district court again granted summary judgment to YouTube, and Viacom appealed yet again.

Viacom has now filed its opening brief.  Groklaw has a discussion of that brief here.  In addition, six amicus briefs have been filed in support of Viacom:

• Ronald A.Cass, Raymond Nimmer, and Stuart N. Brotman
• Copyright Alliance, Minority Media & Telecommunications Council, Inc. and the Media Institute
• American Federation of Musicians, Directors Guild of America, International Alliance of Theatrical Stage Employees, Screen Actors Guild-American Federation of Television and Radio Artists, and Studio Transportation Drivers, Local 399, International Brotherhood of Teamsters
• MPAA and Independent Film & TV Alliance
• American Society of Composers, Authors and Publishers, Broadcast Music, Inc., The Recording Industry Association of America, and Sesac, Inc. 
• Football Association Premier League Ltd., Bourne Co., Murbo Music Publishing, Inc., Cal IV Entertainment, LLC, X-Ray Dog Music, Inc., and Fédération Francaise de Tennis (this filing is actually a motion for leave to file the amicus brief)

Groklaw's discussion of those amicus briefs is here.

YouTube's opposition brief is due on October 25, 2013.

First Published Court Opinion to Mention "Sharknado" -- And It's Actually a Good Fair Use Opinion

The William Faulkner estate sued Sony Pictures for copyright infringement because the movie Midnight in Paris used a single line from Faulkner's book, Requiem for a Nun.  Fortunately, a Mississippi district court dismissed this case on the grounds of fair use. The opinion is well-reasoned, but that didn't stop the Judge from having a little fun.  The opinion begins as follows:

Presently before the court is the motion of the defendant, Sony Pictures Classics, Inc. (“Sony”), seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff, Faulkner Literary Rights, LLC (“Faulkner”) has responded in opposition. The court has viewed Woody Allen’s movie, Midnight in Paris, read the book, Requiem for a Nun, and is thankful that the parties did not ask the court to compare The Sound and the Fury with Sharknado.

This has to be the first court opinion to mention the movie Sharknado, already a Sci-fi classic.

My Interview With The Recorder

The Recorder, a San Francisco-based legal newspaper, recently published a report on intellectual property.  I am interviewed at pages 28-29 of the report (the last two pages of the PDF).

UPDATE:  Here is the video of the interview.

More "Smart People" Jokes

Following up yesterday's post, here are some more nerd jokes.  And still more.  There is some overlap.

UPDATE:  Reddit has a whole thread of these.

"Explanations To 15 Jokes Only Smart People Can Understand"

How many of these jokes can you get without the explanation?

How NOT to Babysit

The American Red Cross has released this helpful video on how NOT to babysit.  With lines such as, "Wait, you mean you have a THIRD kid?"

What Happens When a British Cricket Commentator Calls a Yankee-Red Sox Game

A British Cricket commentator calls a Yankee-Red Sox game.  This might be why we seceded from Britain.  Featuring  "Joseph Gordon-Levitt" playing baseball.

The Hitler "Downfall" Meme Explains Patent Trolls

Patently-O has uncovered this clever use of the Hitler "Downfall" meme video to explain patent trolls.  The native YouTube link is here.  Turns out someone got a patent for "a method and system for world domination."  Anyone who thinks business methods should be patentable must leave the room.

Supreme Court Decides "Reverse Payments" Case

Today the Supreme Court decided FTC v. Actavis, the "reverse payments" case. This case arises in generic drug litigation, where the patent owner pays the accused infringer to stay out of the market until the patent expires.  Because the settlement requires the patent owner to pay the alleged infringer, rather than the other way around, this kind of settlement agreement is often called a “reverse payment” settlement agreement. The lower courts have struggled with whether this violates the antitrust laws.

In today's opinion, the Supreme Court reverses the 11th Circuit, which had dismissed the FTC's antitrust complaint.  However, the Court declines to hold that reverse payment settlements are presumptively unlawful. Rather, they are to be reviewed under the rule of reason analysis. The FTC will be given a chance to prove its case. The vote was 5-3, with the majority opinion by Justice Breyer (Justice Alito is recused). 

SCOTUSblog reports that this potential antitrust exposure "is likely to essentially put an end to such payments in the future."  In the long run, this will hopefully make generic drugs more widely available.

Supreme Court Decides AMP v. Myriad (Breast Cancer Gene Patenting Case)

The Supreme Court just decided Association for Molecular Pathology v. Myriad Genetics, Inc.   The case involved the patentability of genes used to detect breast cancer.

As was expected after April's oral argument, the court held that isolated DNA is not patentable, but synthetic DNA is patentable.  The holding is summarized as follows:

For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring.

This reverses the Federal Circuit in part, in a unanimous decision by Justice Thomas (Justice Scalia joined the majority opinion only in part, and wrote a brief concurring opinion disclaiming any knowledge about the "fine details of molecular biology").  I had previously written about the Federal Circuit's two decisions here and here.  The Supreme Court agreed with the Patent Office that isolated genes are not patentable.

At one point, the Court repeated an interesting statement from its 2012 opinion in Mayo v. Prometheus:

As we have recognized before, patent protection strikes a delicate balance between creating “incentives that lead to creation, invention, and discovery” and “imped[ing] the flow of information that might permit, indeed spur, invention.” 

The Myriad decision will likely reduce the costs of breast cancer testing such as the type Angelina Jolie recently publicized.

UPDATE:  Here are posts about this case by EFF, SCOTUSblog (also in plain English), Patently-O, and Techdirt.

Headline of the Day

As usual, I am not making this up.
"Schoolgirl, 9, passes through Turkish customs with toy passport identifying her as a UNICORN."

Millennials in the Workplace Training Video

Does your business employ "Millennials"?  Having difficulty understanding them?  Watch this helpful training video.

White House Releases Serious Patent Reform Proposals

Today the White House released "Fact Sheet: White House Task Force on High-Tech Patent Issues."  This includes some serious patent reform proposals, some by executive order and some by proposed legislation.  The Fact Sheet was accompanied by a report about the current problems with the patent system.

EFF's blog post about this important development is here.

UPDATE: Here's a cute animated GIF of a patent troll by the White House.   Techdirt has two stories about this development.  Here is Patently-O's post.

Sex Education FAIL

Keep scrolling until the bottom.

"Sadly, This Is Not The Onion" Added to List of Humor Links

Along the left side of the blog, I have a list of interesting links.  Today I added to the list of humor links the web site "Sadly, this is not The Onion."  The real Onion has been there for quite some time, but I added this new twist on that site.  As you know, The Onion features fake stories that sound real.  To be the ying to The Onion's yang (or is it yang to the ying?  I can never get those two straight), "Sadly, this is not The Onion" features real stories that sound fake.

There is a related subreddit, r/nottheonion, which appears to be a feeder site to the real "Sadly, this is not The Onion."  Or maybe vice versa, it's hard to tell.

Time for Some Baby Ducks

This isn't really humor.  But I bet that these baby ducks make you smile anyway.  Good way to start the weekend!

Computer Scientists' Brief in Oracle v. Google

Yesterday EFF filed the latest amicus brief on which I worked, in the Oracle v. Google appeal.  As I previously discussed, Judge William Alsup of the Northern District of California had 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.

Oracle appealed the case to the U.S. Court of Appeals for the Federal Circuit, and it is now being briefed.  Groklaw has detailed discussions of Oracle's opening brief and of Google's brief.

EFF's amicus brief is filed on behalf of 32 notable computer scientists, including Larry Roberts (one of the inventors of ARPANET), Tim Paterson (who wrote the original MS-DOS program), Bjarne Stroustrup (the inventor of C++), and many others.  Their bios are here.  EFF's press release about the brief is here; Groklaw's article is here.

 The computer scientists' brief traces the history of APIs in the computer industry, starting with the original IBM PC thirty years ago, and continuing up until the present.  The brief shows that the exclusion of APIs from copyright protection has been essential to the development of modern computers and the Internet, and the key to competition and progress in the computer field.  Examples include PC clones, operating systems such as UNIX and Linux, programming languages such as "C,", Internet network protocols, and cloud computing.  Because APIs are open, developers can create compatible new programs, and users can use their data in different applications without being locked into a single platform.

The brief also explains that the uncopyrightable nature of APIs encourages the creation of new software that otherwise would have been written, and also helps rescue users when software goes "orphan" because its original creators have abandoned their product.  In both cases, the open nature of APIs enables the creation of compatible software.

The case is being heard in the Federal Circuit because Oracle had also sued Google on patent claims.  Oracle lost those at trial, but is only appealing its copyright loss.  The Federal Circuit must apply Ninth Circuit copyright law, which together with the First Circuit's decision in Lotus strongly suggests that Google should win this case.

   

Giant Rubber Duck Update

In early May, a Dutch artist created a giant rubber duck and let it go sailing in Hong Kong harbor.  Sadly, a few weeks later, the duck deflated.

Good news: this 54-foot tall duck has returned!  One can only hope that the duck will now go on a world tour and someday visit the San Francisco bay.  If so, this blog will be there.

Hamlet: The Short Clips Version

Want to see Hamlet, but you only have 15 minutes?  Watch THIS video. 

"The 12 Most Terrifying Things Ever Invented for Babies"

These are all actual patents.  Sorry to say.

Need Dessert Ideas for Mother's Day?

How about a nice Pop-Tart?

CLS Bank v. Alice Corp.: Abstractness Seems to Be a Problem With No Easy Solution

Today the Federal Circuit Court of Appeals released its decision in CLS Bank v. Alice Corp.  As I explained in a previous post about the case, in recent years, both the Federal Circuit Court of Appeals and the U.S. Supreme Court have struggled on what  35 U.S.C. § 101 means and how and when it limits what 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.  I helped write EFF's amicus brief in the case.

Today, the struggle continued.  Rather than decide anything, the Federal Circuit's opinion is a mess.  All the court agreed on was this brief "per curiam" decision:

PER CURIAM.
Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.
AFFIRMED

Ten judges decided the case (newly-appointed Judge Taranto did not participate) and there was one vacancy at the time.  As a result, it's not clear this case has any precedential value whatsoever.  (See footnote 1 of Chief Judge Rader's dissent/"concurrence".)  There is a 5-judge plurality opinion by Judge Lourie that holds all the claims patent ineligible.  Two other judges agreed the method and computer-readable medium claims were patent ineligible, but for different reasons than Judge Lourie's plurality.  See Chief Judge Rader's dissent/"concurrence".  Five judges believed the system claims were patent eligible, leading to a 5-5 tie and an affirmance by an equally divided court on that issue. 

Judge Lourie's plurality opinion contains some nice language about when things won't be patent eligible.  For example:

An “inventive concept” in the § 101 context refers to a genuine human contribution to the claimed subject matter. “The underlying notion is that a scientific principle . . . reveals a relationship that has always existed.” Flook, 437 U.S. at 593 n.15. From that perspective, a person cannot truly “invent” an abstract idea or scientific truth. He or she can discover it, but not invent it. Accordingly, an “inventive concept” under § 101—in contrast to whatever fundamental concept is also represented in the claim—must be “a product of human ingenuity.” See Chakrabarty, 447 U.S. at 309.

In addition, that human contribution must represent more than a trivial appendix to the underlying abstract idea. The § 101 preemption analysis centers on the practical, real-world effects of the claim. . . . Limitations that represent a human contribution but are merely tangential, routine, well-understood, or conventional, or in practice fail to narrow the claim relative to the fundamental principle therein, cannot confer patent eligibility.

In a claimed method comprising an abstract idea, generic computer automation of one or more steps evinces little human contribution. . . . Furthermore, simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility. . . . Because of the efficiency and ubiquity of computers, essentially all practical, real-world applications of the abstract idea implicated here would rely, at some level, on basic computer functions—for example, to quickly and reliably calculate balances or exchange data among financial institutions. At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility. In short, the requirement for computer participation in these claims fails to supply an “inventive concept” that represents a nontrivial, nonconventional human contribution or materially narrows the claims relative to the abstract idea they embrace.

But since that opinion only got 5 votes out of 10, it's not binding precedent.  Either the Federal Circuit or the Supreme Court will have to work on this issue some more. 

Here are discussions by EFF (suggesting that the Supreme Court decide the case), Patently-O, and Techdirt (which called the opinion "one of the most bizarre and useless rulings ever concerning software patents").

"Does Size Matter?"

A strip club sued the City of San Antonio to try to enjoin a statute requiring exotic dancers to wear larger pieces of fabric.  A highly entertaining opinion denied the request for a preliminary injunction. 

Some of the best lines in the opinion:

Thus, the age old question before the Court, now with constitutional implications, is: Does size matter?

Plaintiffs clothe themselves in the First Amendment seeking to provide cover against another alleged naked grab of unconstitutional power.

The Court infers Plaintiffs fear enforcement of the ordinance would strip them of their profits, adversely impacting their bottom line.

While the Court has not received amicus curiae briefs, the Court has been blessed with volunteers known in South Texas as "curious amigos" to be inspectors general to perform on sight visits at the locations in question.

An Appendix is attached for those interested in a lengthy exposition, those who wish to appeal and those who suffer from insomnia.

To bare, or not to bare, that is the question.

Indeed, this case exposes the underbelly of America's Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis.

Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.

"How to Play Chess Properly"

I was on the chess team in high school.  It was nothing like this video.

Happy Caturday!

Ten commercials starring cats.

17 Unnecessary Signs

17 unnecessary signs.  Best ones: Nos. 2, 5, 12, 16, 17, 19.

Who's on First?

Baserunner on first steals second.  Later that same inning, the same baserunner . . . is back on first base, and is thrown out trying to steal second AGAIN.  Yep, it happened.  A text explanation is here.

YouTube Wins Summary Judgment Against Viacom (Again)

Yesterday, following further briefing, the district court granted YouTube's renewed summary judgment motion against Viacom.  EFF, Eric Goldman, and Techdirt all have detailed (and sometimes biting) writeups of the ruling.

Animated GIF Showing 40 Years of Music Industry Change

Someone created an animated GIF showing 40 years of changing formats in the music industry, from 1973 to the present.  It's interesting to see that by the early 1990's, both vinyl albums and singles had disappeared in favor of the CD format, but CD sales had not included any significant amount of CD singles.  This enabled the music industry to charge a full album price even if you only wanted one song.  By today, digital music sales of single songs claimed a significant percent of the music market.

April Fool's Update

OK, here are the best April Fool's jokes so far.  Note that some of these links won't work after today.

• Google Nose Search.
• YouTube is shutting down.
• Twitter is going to start charging if you want to use vowels.  I m n bg trble.
• Cats.  (Today only.) 
• More cats.  (Also today only.)
• Still more cats.  (And today only.)
• Yet more cats.  (This one might be good tomorrow.) 
• And even more cats.  (Also might be good tomorrow.)
• Penguins!  "A Tasmanian colony of fairy penguins has connected to the internet using a specially designed tablet to send out a puzzling message: "42". . . . Software engineering student Adelie King said she developed and installed a flipper-friendly email application on a first-generation iPad, which she then wrapped in plastic to avoid water damage."
• On the tech front, lots of news from EFF.
• Extension class of the day.
• "Swedish archaeologists find Thor's Hammer": Really good news for The Avengers 2? 
• Hungry?  Click here, but I'd avoid "Option 3" if I were you.
• Oh darn, I am one day too late.
• Lots more if the above weren't enough.
• Finally, an oldie but goodie from last year.

Further Summary Judgment Briefing in Viacom v. YouTube

I wrote previously about the long-running saga in Viacom v. YouTube, a case involving the "safe harbors" for user-generated content websites.  My analysis of the April 2012 Second Circuit opinion is here; earlier posts are here, here, here, and here.

On remand from the Second Circuit, YouTube has again asked the district court for summary judgment.  Techdirt has an excellent summary of the briefing on that motion.

Men and Cats.

A side-by-side comparison of men and cats.  Scroll down at least until you get to Joseph Gordon-Levitt and Guitar Cat.

I Sure Wish I Could Speak Spanish Like This

Some 12-year old was asked to do a family tree in Spanish.  He got an A+.

Columbia Pictures v. Fung Opinion is Released

Today the Ninth Circuit released its opinion in Columbia Pictures Industries v. Fung.  The case involves liability for maintaining a torrent site used to promote downloads of copyrighted content.  I discussed the oral argument in the case here.

Roundup of Commentary on Kirtsaeng v. John Wiley

Yesterday the Supreme Court released its opinion in Kirtsaeng v. John Wiley & Sons, Inc.  In this important decision, the Court held that the "first sale" doctrine applies to the importation of goods manufactured and sold abroad under authorization by the copyright owner.  It's a helpful addition to the principle that if you buy something, you own it.

Since there already has been so much analysis of the opinion, rather than adding my own here are links to what other people have said:  EFF, SCOTUSblog, Patently-O, Techdirt, Eric Goldman, Joe Mullin, and the Volokh Conspiracy.

My Latest EFF Project: Comments to the Patent Office on Patent Clarity

On March 15, 2013, EFF filed comments with the U.S. Patent and Trademark Office (PTO) on patent clarity, a project on which I had worked.  EFF's blog post explaining the comments is here.  Briefly, the PTO had asked for comments on ways to improve the preparation of patent applications.  EFF responded to the PTO's welcome request for input with suggestions on how the patent application process can be improved.

UMG v. Veoh Affirmed Again

On Thursday, the Ninth Circuit Court of Appeals issued a superseding opinion in UMG v. Veoh (Shelter Capital Partners).  The Court filed its original opinion in the case on December 20, 2011, which I wrote about here.  Both the original and new opinions held that Veoh's user-generated content website is entitled to the "safe harbor" protection of 17 U.S.C. § 512. Briefly, UMG v. Veoh is about UMG's claim that Veoh's user-generated content (UGC) web site contains copies of UMG's copyrighted music, and that Veoh should be secondarily liable when its users post allegedly infringing music on the Veoh site. The trial court had granted summary judgment to Veoh on the grounds that it was immune from suit since it complied with the “safe harbor” notice-and-takedown procedures of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) ("DMCA").

UMG v. Veoh raised many of the same issues as the Viacom v. YouTube case in New York, where the district court had granted summary judgment to YouTube, also on the safe harbor defense.  Viacom's appeal to the Second Circuit Court of Appeals was a little later in time than the original UMG v. Veoh appeal.  As a result, when the Second Circuit issued its opinion -- on April 6, 2012 -- it had the benefit of the earlier Ninth Circuit opinion in UMG v. Veoh.

While the Second Circuit largely agreed with the Ninth Circuit, it didn't agree 100%, as my post on the opinion explains.  This led to an interesting procedural development.  After the December 2011 opinion in UMG v. Veoh, UMG had petitioned the Ninth Circuit for rehearing, and that petition was still pending when the Viacom v. YouTube opinion was released in April 2012.  As a result, in an Order dated June 7, 2012, the Ninth Circuit requested that the parties submit supplemental briefs to address two issues about the interpretation of the DMCA in light of the Second Circuit’s intervening decision in Viacom v. YouTube. The first issue on which the Ninth Circuit asked for supplemental briefing concerned the distinction between actual and red flag knowledge under the DMCA; the second issue concerned the meaning of “right and ability to control” under the DMCA.  The parties filed supplemental briefs a few weeks later.

The Ninth Circuit has now re-affirmed Veoh's victory in its latest, superseding opinion.  In doing so, it largely eliminated any conflict with the Second Circuit's reasoning.  First, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of both “knowledge” and “red flag knowledge” under the DMCA as applying only to specific instances of infringement, rejecting UMG's argument that “red flag knowledge” can be shown by generalized knowledge that a service can be used to infringe. Second, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of “right and ability to control” under the DMCA as requiring a showing that a service provider exerts “substantial influence on the activities of users,” rejecting UMG's argument that it can be shown by a service provider’s general ability to locate infringing material and terminate users’ access.

Thus, the Ninth Circuit concluded that Viacom v. YouTube supports its earlier conclusion that Veoh was properly granted summary judgment based on the safe harbor under Section 512(c) of the DMCA.  By largely agreeing with the Second Circuit, the Ninth Circuit has now greatly lessened any need for the Supreme Court to review either case.

EFF's discussion of the opinion is here, and TechDirt's is here.  (EFF's amicus brief in the case, on which I worked, is approvingly cited at page 24 of the opinion.)

Ninth Circuit affirms Summary Judgment of Fair Use, Attorneys' Fees for Using a Seven Second "Ed Sullivan" Clip in "Jersey Boys"

Today the U.S. Court of Appeals for the Ninth Circuit issued a good fair use opinion in SOFA Entertainment, Inc. v. Dodger Productions, Inc.  The defendants used a seven second "Ed Sullivan" clip in the musical "Jersey Boys" as a point of historical reference.  The clip was just of Ed Sullivan introducing the Four Seasons band, at a time when the "British Invasion" was threatening to swamp American bands.  The musical used the clip as an historical reference to note the band's success despite the changing social times of the mid-1960's.

The Ninth Circuit affirmed a summary judgment for the defendants on the fair use defense, and also affirmed an award of attorneys' fees for the defendants. 

The Court began by noting the purposes of Copyright:

The Copyright Act exists “‘to stimulate artistic creativity for the general public good.’” Mattel, Inc. v. MGA Entm’t, Inc., –F.3d–, 2013 WL 264645, at *2 (9th Cir. Jan. 24, 2013) (quoting Twentieth Century Music Corp v. Aiken, 422 U.S. 151, 156 (1975)). It does so by granting authors a “special reward” in the form of a limited monopoly over their works. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 546 (1985). However, an overzealous monopolist can use his copyright to stamp out the very creativity that the Act seeks to ignite. Stewart v. Abend, 495 U.S. 207, 236 (1990). To avoid that perverse result, Congress codified the doctrine of fair use. Id.

Applying the four fair use factors, the court found that the first factor was present because the musical used the short clip as a biographical anchor.  The second factor was present since the clip was mainly factual, who was about to perform.  The fourth factor was present since "Jersey Boys" is hardly an economic substitute for "The Ed Sullivan Show."  As to the third factor, the court stated:

. . . the seven-second introduction is hardly qualitatively significant. Sullivan simply identifies the group that is about to perform and the section of his audience to whom the Four Seasons would appeal. It is doubtful that the clip on its own qualifies for copyright protection, much less as a qualitatively significant segment of the overall episode.

In affirming the attorneys' fee award, the Court had this to say:

In light of the education SOFA received as the plaintiff in Elvis Presley Enterprises, SOFA should have known from the outset that its chances of success in this case were slim to none. Moreover, we agree with the district court that “lawsuits of this nature . . . have a chilling effect on creativity insofar as they discourage the fair use of existing works in the creation of new ones.” The fair use doctrine is an integral part of copyright law precisely because it gives authors “breathing space within the confines of copyright” to build upon their predecessors’ works. Campbell, 510 U.S. at 579. When a fee award encourages a defendant to litigate a meritorious fair use claim against an unreasonable claim of infringement, the policies of the Copyright Act are served. Fogerty, 510 U.S. at 527. Therefore, we conclude that the district court’s award of attorney fees to Dodger was justified.

Cute Example of Why DRM is a Problem

Digital Rights Management (DRM) is a way providers of digital content have attempted to "lock up" their content so only authorized users/purchasers can access it.  It sounds like a good idea in principle, but there are tons of problems with DRM, as EFF has repeatedly explained, and as Techdirt has also explained.

Perhaps an easy way to understand why DRM is a problem is this cute example: the DRM chair!  The "chair that self-destructs after 8 uses."

38 Fascinating Maps

Enough of the Oscars.  Here are 38 fascinating maps.

Ice Cubes: The Recipe

Ice Cubes. The recipe.

To appreciate fully how special this recipe is, click on "Ratings and Reviews."

"Happy Birthday" -- a Copyright Problem

Although the song "Happy Birthday to You" was written in the 1800's, Time Warner/Warner Music claims that it's still under copyright and demands royalties each time it is publicly performed. While its copyright status is doubtful, Warner still collects $2 million per year in royalties.

There was a contest to come up with a royalty-free alternative. It's not good.  Sadly, "It sounds like Radiohead made a birthday dirge and left out their trademark happy-go-lucky pep."  So it looks like Warner will keep getting its royalties.

Social Media Explained.

As told by #donuts.

My Latest EFF Project: Orphan Works Comments

For my latest project with EFF, I helped write the comments that EFF and Public Knowledge filed with the Copyright Office about "orphan works."  Orphan works are copyrighted works where the copyright owner cannot be contacted.  The orphan works problem arose as a result of the 1976 Copyright Act and subsequent amendments to that act.  The 1976 Act (1) removed the requirement that works be published with a copyright notice, making it harder to identify the author; (2) made copyrights to be effective merely upon creation of the work, rather than upon registration of the work with the copyright office, which also makes it harder to find the author; and (3) lengthened the term of copyright, so that very old works are still possibly covered even though their author is long gone.  The orphan works problem is a serious issue in the United States and throughout the world.

EFF's article about our recent comments is here.  A link to all 91 comments is here.

Super Bowl Commercial Preview

I found a few previews of some more Super Bowl commercials.  Here are some by Doritos (skip ahead to the 2:09 mark).  Here are ten of them, including one of the Doritos commercials and the Samsung classic, which is understandably #1.

A Super Bowl Commercial Featuring . . . Trademark Law

Some of the commercials for the Super Bowl are being released early.  Here's one by Samsung, which features . . . avoiding trademark infringement!  Or perhaps Samsung just doesn't want to get sued again.

Another Set of Fine Customer Reviews on Amazon

The banana slicer.  "Saved my marriage . . . this is one of the greatest inventions of all time."  And many more.

Four More Post-Trial Orders in Apple v. Samsung

As reported by FOSS Patents and by Joe Mullin at Ars Technica, yesterday Judge Koh released four more post-trial orders in the long-running Apple v. Samsung case.  There are direct links to the orders at the bottom of the Ars Technica article; Apple has also posted the orders here and here.

Since the two articles summarize what happened in some detail, I won't repeat what they say here.  In summary, not much happened (as FOSS Patents put it, "only limited adjustments to the jury verdict").  Judge Koh did overturn the jury verdict that Samsung willfully infringed Apple's patents, meaning Apple won't get any increased damages.  The other orders don't much affect what has happened so far, meaning that there is still a $1 billion judgment against Samsung (for now) and no injunction.

Both articles mention that there is still one remaining motion to be decided:  Samsung's motion to reduce the $1 billion damage award, or for a new trial on damages.  As I read Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure, this remaining motion means that the time for the parties to file their expected appeals hasn't started yet.

Be Grateful If Your Parents Never Did Any of These

Twenty-eight examples of parents who really know who to mess with their kids.  Be grateful if none of these happened to you.

Animated Short Video Explaining the America Invents Act

The Klarquist Sparkman firm has released this animated video, which briefly explains the first-to-file provisions of the America Invents Act.  These provisions become effective March 16, 2013.

Morgan Freeman Narrates Everything

"Penguins didn't exist until Morgan Freeman made that movie.  He's that good."

Start your Holiday 2013 Shopping Now!

Need a gift for your little toddler?  Here's the latest.

53 Terrible Jokes!

Here are 53 Terrible Jokes.  Such as, "Q: What are the strongest days of the week?  A: Saturday and Sunday, because all the rest are week(weak)days."  

 

Or: "Q: What concert costs 45 cents? A: 50 Cent, featuring Nickelback."

"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.