Category: IP

AP Goes RIAA Route

No Comments

Well, it looks like the Associated press has decided to try and go the route of the RIAA and MPAA, and create a new “property” right on their material which completely eschews the idea of fair use.

Specifically, they have gone after the Drudge Retort, asking them to take down 7 links, “ranging from 39 to 79 words”.

This places me in the unpleasant position of agreeing with Jeff Jarvis, Liebercrat extrordinaire, that they are stupid, or insane, or both.

According to Whiskey Fire, the AP now has a schedule of licensing fees which start at $12.50 for 5 words…I’m not joking here….Also, it appears to apply to blog comments too.

Interestingly enough, the terms of service are even more restrictive than that. According to Patrick Nielsen Hayden, they also want to prohibit you from criticizing the Associated Press, which means that all those folks following the hacktacular exploits of Nedra Pickler are simply out of luck, I guess.

As a result, TechCrunch, and some other bloggers, including me, will boycott AP stories for the foreseeable future.

Boycott link here.

House Passes Draconian IP Legislation

No Comments

HR 4279 is a very bad piece of legislation. Among other things, it:

  • Creates an IP “Czar” in the Department of Justice, who would be institutionally driven to make criminal matters out of what is has been a civil offense.
  • Apply civil asset forfeiture, so you could lose your house if law enforcement agencies convince a judge that you might be infringing.
  • Expanded criminal penalties.

Luckily, it’s unlikely to make it through the Senate in an election year, but this legislation is evil.

What too many people do not understand, including over 400 members of Congress, it passed 410 to 10, is that Patent and Copyright Law is at its Core Public Interest Law. It is not a property right, but rather a societal contract in which we all give up our rights in order to encourage artistic and scientific development through the granting of a temporary exclusive license.

Supreme Court Reaffirms Patent Exhaustion

No Comments

The case is LG Electronics vs Quanta, where LG licensed the technology to Intel, who made the chips used, but wanted to charge buyers of the chips an additional royalty.

Basically, patent exhaustion says that if someone licenses a patent from you, and they sell stuff made with that patent to someone else, the recipient can use that stuff without any more restrictions. It’s a 100 year old precident, but the patent court decided to ignore it.

You can find a very good primer on why this happened here.

The district court ruled for Quanta, but the patent court ruled for LG on appeal, and the Supreme Court completely reversed the patent court, which is becoming a regular thing.

The special patent court is out of control and needs to be abolished.

Really, Really, Really, Really Bad Ideas, The Juxtaposition of Border Security and Copyright Edition

No Comments

The newest leaked draft of the Anti-Counterfeiting Trade Agreement (ACTA) is proposing that border security will have the ability to inspect digital devices, determine whether they contain “infringing material”, and then confiscate them.

So if you have MP3’s on your iPod leally ripped from you CD, they get to confiscate it without any due processas, “The draft allows for the confiscation or destruction of any device the agents deem suspect.”

The draft is available at WikiLeaks.

RIAA Employed Terrorist Takes Down Web TV Network

No Comments

MediaDefender, a criminal software firm employed by media companies to engage in illegal attacks on sites that they deem infringing, just took down the completely legal web broadcasting firm Revision3, which is, conveniently enough, a direct competitor to MediaDefender’s parent company.

It Revision3 uses BitTorrent to distribute its programming, but only its own stuff, but MediaDefender hacked in using a back door to place their own material on the server, and when this back door was shut down after it was discovered, a massive (8000/second) DDOS attack occurred.

At this point they say that they lack the resources to sue, but I’ve sent them an email saying that I would throw in a few bucks for a legal fund.

Viacom Going Postal On YouTube

No Comments

The DMCA is pretty clear on this. If someone posts something to an internet service, and they get a notice, and then take it down, it’s no harm, no foul.

This appears to be YouTube at a glance, but Viacom is now claiming, “that YouTube is guilty of public performance of such content due to the way it presents and plays the videos“, because it allows for embedding and sharing (actually referrals) to the material.

This is going to get very, very ugly.

And the Son of WIPO Looks to Set Up a Reign of IP Terror

No Comments

A copy of the Anti-Counterfeiting Trade Agreement (ACTA) has been leaked online, and it appears that once again the regulators miss the point.

IP protections are not property. They are liberty that we take from every member of society in the form of temporary exclusive licenses, because the society as a whole benefits from the creativity encouraged by these licenses.

The leaked copy of the proposal is here, courtesy of Wikileaks.

Right to Resell Software Reaffirmed

No Comments

The court case, Timothy Vernor v. Autodesk, Inc., was fairly simple: Mr. Vernor bought old copies of Autocad, one at a garage sale, and three from an architectural firm, and Autodesk sued, claiming that he violated the terms of the license.

Mr. Vernor asserted the right of first sale, which allows a person who has purchased a copyright work to resell it, but Autodesk claimed that it was not a sale, but a license.

The judge was having none of it, see here, here, and here, and ruled on behalf of Timothy Vernor, noting that Autodesk does not require an annual payment, or to return it when done.

Additionally, Autodesk was done in by their own sales literature and web site, which referred to purchase options for buying the sortware.

Note that this is bigger than it sounds:

If Jones’s ruling is upheld on appeal, it will have important consequences for the software industry, where the legal fiction that software is merely licensed is widely employed. In addition to discouraging the market for used software, software firms have also attempted to use the “licensed, not sold” theory to enforce restrictions on reverse engineering that would otherwise be fair use under copyright law. If software is sold, rather than licensed, then no license is required to install and use the software, and the terms of shrink-wrap licenses may not be legally binding.

Of course, the vendors could get around this by going with a real annual license, but in the real world of PC software, with a very few exceptions, you would eliminate 90+% of your customers if you did that.

Absurdity in IP, Hippo Birdie Two Ewes

No Comments

I found this as an interesting followup to yesterday’s Dr. Who based, “Knitting Needles of Mass Destruction”, we have the lowdown on the “Happy Birthday” song:

Abstract:
“Happy Birthday to You” is the best-known and most frequently sung song in the world. Many – including Justice Breyer in his dissent in Eldred v. Ashcroft – have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became “Happy Birthday to You,” originally written with different lyrics as “Good Morning to All,” was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

Original paper here.

Lockheed Patents ‘Spooky Radar’

No Comments

It’s years away from fruition, but it appears that Lockheed has secured on a radar that uses quantum entanglement.

Basically, under some conditions in quantum mechanics, two particles are linked, instantaneously at significant distances from one another.

Makes my head hurt, which I stick to the larger world, where Newtonian mechanics serve just fine.

Anywoo, those of you who are more into this can go to Wired’s Danger Room for a more complete set of links, but the money quote from the patent applicstion appears to be this:

The ability to propagate radar signals at frequencies that are independent of the resolution frequency may allow quantum radar system 100 to attain near zero attenuation rates in the atmosphere, and greatly diminished attenuation rates in other media including foliage, building materials, earthen layers, etc. Quantum radar system 100, thus, can be adapted to visualize useful target details through background and/or camouflaging clutter, through plasma shrouds around hypersonic air vehicles, through the layers of concealment hiding underground facilities, IEDs, mines, and other threats–all while operating from an airborne platform or other suitable platform. Quantum radar system 100 may also improve the performance of advanced image processing and pattern recognition systems, as well as defeat most RF signature management systems when the propagation frequency is tuned to the resonant wave length of the target.

Knitting Needles of Mass Destruction

No Comments

It appears that a avid knitter has posted patterns online for various Dr. Who characters, and got a trademark takedown notice from the BBC.

It should be noted that trademark, unlike copyright for instance, is not for the benefit of the holder, but for the benefit of the consumer, to avoid confusion between products.

In fact, there is a specific exemption on this issue:

So, not only could Mazzmatazz potentially defend against the BBC takedown notice by claiming that her reinterpretation of the monster figures from the show is just that — a creative reinterpretation that doesn’t infringe any trademark, she might also be able to turn around and go after the people who used her pattern to create and sell little monster dollies on eBay. She could, in sum, achieve a win-win. That is, if the entire situation weren’t so ludicrous to begin with. After all, are the “unscrupulous individuals” who used the pattern that Mazzmatazz herself posted online to knit Doctor Who dolls and sell them online really making significant enough revenue that the BBC itself should be threatened?

I think that we have two lines, the the first IP lawyers and license holders insisting, either through legislation, regulation, and court precedent on an increasingly expansive definition of what is covered and what is prohibited, and the public and the political class, who are increasingly concerned about the degree to which this is being taken.

I think that the turning point was BlackBerry v. NTP, because when the Judge issued an injunction, BlackBerry’s (in retrospect remarkably savvy) response was that it could not separate government and commercial users, and so it would shut down the entire network, which included many members of Congress and Federal Judges, along with most of the Congressional aides and court clerks.

When the movers and shakers in IP regulation were going to be bitten, and bitten hard, on this, suddenly NTP’s demands became more reasonable, but the seed of doubt on IP triumphalism was sown.

RIAA v. Thomas Sent Back for New Arguments

No Comments

It appears that courts are becoming increasingly restrictive on the scope of RIAA claims, and new arguments, and possibly a new jury trial, have been ordered as a result.

In this case, the RIAA got a judgment of $220,000.00 from Ms. Davis, but:

That was the case in the trial last fall of Jammie Thomas of Brainerd. A U.S. district court judge, Michael Davis, instructed jurors that making sound recordings available without permission violates record company copyrights “regardless of whether actual distribution has been shown.”

On Thursday, Davis said that may have been a mistake.

He wrote that he found a 1993 ruling from the 8th Circuit Court of Appeals, which covers Minnesota, that said infringement requires “an actual dissemination of either copies or phonorecords.”

One wonders why he is asking for a re-ruling without either side having brought up this original ruling.

My guess is that his grand kid with the iPod told him.

Microsoft to Customers: Drop Dead, DRM Edition

No Comments

Once upon a time, there was a company called Microsoft, and it was a bad company.

One day, they created a music shop, called MSN music, which was even worse.

Then the bad people at Microsoft created the the Zune* store, anddecided to Dump MSN Music.

So, effective August 31, 2008, Microsoft is pulling the DRM keys on the music:

MSN Entertainment and Video Services general manager Rob Bennett sent out an e-mail this afternoon to customers, advising them to make any and all authorizations or deauthorizations before August 31. “As of August 31, 2008, we will no longer be able to support the retrieval of license keys for the songs you purchased from MSN Music or the authorization of additional computers,” reads the e-mail seen by Ars. “You will need to obtain a license key for each of your songs downloaded from MSN Music on any new computer, and you must do so before August 31, 2008. If you attempt to transfer your songs to additional computers after August 31, 2008, those songs will not successfully play.”

This doesn’t just apply to the five different computers that PlaysForSure allows users to authorize, it also applies to operating systems on the same machine (users need to reauthorize a machine after they upgrade from Windows XP to Windows Vista, for example). Once September rolls around, users are committed to whatever five machines they may have authorized—along with whatever OS they are running.

So you bought it, you paid† for it, and now you have nothing.

This isn’t just Microflaccid, this is what the music and movie industries want to be their business model.

You buy the music, and then they change the rules, and make you buy it again.

*Yes, this was bad too.
†And probably overpaid for it.

Senator, You are a Clueless Jerk, the Not-Lieberman Edition

No Comments

It’s not Lieberman, but it should come as no surprise that I am referring to the distinguished gentleman from Delaware, Joseph Biden….What the heck is it with Senators named “Joe”?

A prominent Senate Democrat on Wednesday said federal and local police should use custom software to monitor peer-to-peer networks for illegal activity, and he wants to spend $1 billion in tax dollars to help make that happen.

Of course, you have the obligatory screaming about Child Pr0n and terrorism, but it’s really about donations from the RIAA and the MPAA.

Additionally, the tracking method proposed, using MAC addresses, is fairly easily spoofed.

Moron.

A plea to both campaigns: Please do not select this blithering idiot as your Vice Presidential running mate.

Wanker of the Day: J.K. Rowling

No Comments

Yes, the author of the Harry Potter series is suing a small publisher over their publishing a Harry Potter encyclopedia.

It appears that Rowling , “feels like her words were stolen”.

Tough. Copyright is not ownership, and it was never intended to be ownership. It is a limited time exclusive license, and people are allowed to do things like create encyclopedias.

In fact, this was the sort of activity that was specifically intended under copyright.

Under your view of copyright, Shakespeare’s folios, from which the plays were published, would have been suppressed, which would make all of us poorer in a most profound way.

She “loves” the Harry Potter Lexicon Web site, but had to “draw the line” at his publishing a book based on this material.

Frankly, you have no right to do this. Literally, unless the person has fully appropriated large blocks of your text.

Names, relationships, a plot chart of the story line (assuming that author Steven Vander Ark developed himself), they aren’t your property.

Copyright was created to promote the useful sciences and arts, at least in the USA, the fact that someone is diagramming the finer points of your tale is none of your damn business, though I’m sure you can probably bankrupt the publisher.

Judge Restricts RIAA’s Right to Sue

No Comments

But only a little bit.

Basically, U.S. District Judge Kenneth Karas said that placing copyrighted material in a shared drive does not constitute publication. They would have to show that illegal copying took place.

This is a good thing, as Declan McCulagh demonstates:

As I wrote last fall, there are some dangers if the RIAA’s “making available” theory is widely adopted by courts. If my mother accidentally shares her computer’s entire hard drive with the world by clicking the wrong button in an OS X setup menu, is that “making available?” Should she be held liable for $222,000 in damages, and lose her house, for accidentally making two CDs of music available to the world?

If I don’t upgrade to a newer version of my operating system even though I know there’s a security glitch that opens my hard drive to the Internet, does that mean I’m “making available” my music collection? Do Internet service providers “make available” access to Kazaa? Do search engines “make available” links to infringing files?

That being said, the Judge gave an alternate route to the RIAA, specifically that they could refile charging an “offer to distribute”.

This means that people with files being shared on Bit Torrent could be liable under this, but search engines, and the examples above would not be.

OOXML News

No Comments

Microsoft’s attempt to abuse the international standards process has gotten even more bizarre.

Beyond the fact that this standard sucks, with tags for things like color varying from application to application in the suite, the ISO is now delaying an announcement on the vote.

It could be that they don’t want to make an announcement on April fools day, but more likely it is the fact that the legitimacy of various national votes on this have been disputed, in particular Norway, which voted 4:1 against accepting the standard, but was recorded as voting for the standard.

To the degree that I understand such things, which is limited, this standard sucks, which is part of the problem. Additionally, there is a very real issue that Microsoft will use IP laws, and “undocumented features” to leverage their control of the office suite.

Microsoft’s “promises” to allow OOXML be used by all are cut out of very thin cloth.

Really, Really, Really Bad Ideas: Steve Jobs Edition

No Comments

Steve Jobs is in negotiations with Universal Music about selling preloaded iPods, where the player will have a subscription attached to the device.

I’m not sure if this is a good or a bad idea, if I want music, I want to own it, and if you want me to rent it, I will just fire up µTorrent, additionally, eMusic is clearly threatening an antitrust lawsuit on this.

However, I do know that one thing is a bad idea, the idea of giving music distributors a cut of the hardware sales. There is a difference between making a subscription service available on your player, and giving a cut of each hardware sale to those distributors.

It is the camel’s nose under the tent, and it will be used ad precedent in future lawsuits against the hardware manufactures and against independent distributors of music.

It’s bad for the consumer and it’s bad for Apple.