Category: IP

Yeah, This is How “Balanced” Agreements With the RIAA and MPAA Work

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The RIAA and the large ISPs have an agreement to implement a “six strikes” agreement in to limit “piracy”.

At the core of this agreement is an “independent and impartial” expert to evaluate evidence against people, but now it appears that this “expert” is an RIAA lobbyist:

A month before the controversial “six strikes” anti-piracy plan goes live in the U.S., the responsible Center of Copyright Information (CCI) is dealing with a small crisis. As it turns out the RIAA failed to mention to its partners that the “impartial and independent” technology expert they retained previously lobbied for the music industry group. In a response to the controversy, CCI is now considering whether it should hire another expert to evaluate the anti-piracy monitoring technology.

Starting next month the MPAA, RIAA and five major Internet providers in the United States will start punishing persistent BitTorrent pirates,

The scheme is being coordinated by the Center for Copyright Information (CCI) who agreed to hire an impartial and independent expert to review the evidence that will be used to accuse suspected subscribers.

However, earlier this week the news broke that the touted independent technology expert, Stroz Friedberg, is not so neutral. In fact, the company is a former RIAA lobbying firm.

The lobbying job earned the company more than half a million dollars ($637,000), which makes it hard to view the company as “independent and impartial” as the agreement between the copyright holders and ISPs requires.

This is why you don’t cut deals with the RIAA and the MPAA.

They are not, and have never been, good faith players in this debate.

A Good Primer on Why the US Patent System is F%$#ed Up

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Over at Ars Technica, Timothy Lee has a couple of very good articles on what was wrong with our patent system.

The first is about how the Federal Circuit Appeals Court, which set up to be the sole appellate court for patent matters, and how is has gone completely off the rails ). He calls it a rogue court:

“It is not common in the life of the law in America for a lower court and a major segment of its bar to take on the nation’s highest court, effectively reversing some major precedents or at least substantially mitigating their impact,” notes Steven Flanders in a recent history of the patent court. “Yet this was done.”

 The Federal Circuit, he said, also took on “the quieter and subtler effort to re-educate trial judges throughout the judiciary, to make them friendlier to patent-holders (or at least to the system of patents) as well.” (Flanders, it should be noted, is an avowed supporter of the Federal Circuit and its efforts to reshape patent law).

 This dismissive attitude toward Supreme Court precedents apparently survives to this day among patent lawyers. In the wake of this year’s decision limiting patents on the practice of medicine, patent attorney Gene Quinn wondered, “How long will it take the Federal Circuit to overrule this inexplicable nonsense?” Obviously, the Federal Circuit can’t “overrule” a Supreme Court decision. But with enough persistence, it can, and often does, subvert the principles enunciated by the nation’s highest court. And when it does so, it almost always works in the direction of making patents easier to obtain and enforce.

It’s a good description of how and why our patent system has gone nuts. 

He gives a good summary of how we got there, and why the Supreme court is increasingly willing (perhaps eager) to bitch slap this court.

My only complaint is that he did not cover the seminal patent trolling case, NTP v. RIM (Blackberry), which was crucial in making both SCOTUS, and increasingly larger segments of the “Very Serious People”.  (You are seeing this in legislation about patents floating around Congress)

As some background, when NTP got an injunction against RIM, they asked RIM to cut off all commercial and residential users in the United States, and RIM’s response was that this wasn’t possible, so they would cut off all their users, including the government.

This would mean is that people like Congressmen, their aides, and Supreme Court Justices and their clerks would lose access to their “Crackberries”.

As a result, the consequences of patent trolling suddenly got real for them, and they realized that the Federal Circuit Appeals Court is full of a bunch of extremist nutcases.  (I’m sure that there is an obscure legal term for this in Latin, but I’m an engineer, not a lawyer, dammit.*)

I emailed him about this and he noted that he had included a number of injunctions from patent trolls, including the Blackberry case, but ended up on the cutting room floor.

Additionally, he writes a good article on the International Trade Commission, which routinely prevents products from being imported on the basis of (frequently bogus) patent claims:

If you follow the smartphone patent wars, you’ve probably heard of the International Trade Commission (ITC), which seems to get dragged into every high-profile patent dispute over the devices. Just this month, Motorola asked the ITC to ban various Apple products from the US, and the ITC separately ruled that Apple doesn’t infringe some Samsung patents. But how did this obscure Washington bureaucracy become a major front in the patent wars?

The ITC has the authority to police “unfair methods of competition” by importers, a phrase interpreted to include patent infringement. Because virtually all mobile devices are manufactured overseas, getting the ITC to ban the importation of a device can be just as effective as getting an injunction from a regular court.

A new study from the Cato Institute, a libertarian think tank, suggests that the ITC’s patent-enforcement process is tilted in favor of patent holders—and especially patent trolls. The author, K. William Watson, argues that the inherently discriminatory nature of ITC patent enforcement—ITC cases can only be brought against imported products, not domestically produced ones—violates America’s obligations under World Trade Organization rules not to discriminate against foreign products. He says Congress should eliminate the provision of trade law, known as Section 337, that gives the ITC authority over patent issues.

Go read both articles.

*I LOVE IT when I get to go all Doctor McCoy!!!

Yes, Making a Tort a Criminal Matter is Stupid

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I can think of no better example how how our relentless criminalization of our IP laws creating an environment where prosecutors and IP holders run roughshod over our rights and the presumption of innocence than the current clusterf%$# that is the Kim Dotcom persecution:

Officials in New Zealand’s government apparently believed the law gave them the right to spy on MegaUpload founder Kim DotCom because he was a foreign national.

They were wrong.

In New Zealand today, Prime Minister John Key apologized to DotCom for the spying conducted against him by the Government Communications Security Bureau (GCSB).

The United States has accused DotCom of criminal copyright violations. In January, New Zealand police raided his home and arrested him. Just ahead of the raid, the GCSB began collecting intelligence against DotCom to see if he posed any danger to the police who would later swoop in by helicopter to arrest him.

[It] Turns out that the GCSB isn’t allowed to conduct such surveillance on New Zealand citizens, and the agency was under the false impression that DotCom, who was born in Germany, was not yet a citizen.

This meant that the spying was unlawful.

If you don’t think that they were breaking the law knowingly at the explicit request of the FBI, I have a bridge in Brooklyn to sell you.

This is F%$#ing Nuts!

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The Department of Justice has charged Aaron Schwartz with 13 felonies for violating the terms of service TOS of a web site:

Federal prosectors added nine new felony counts against well-known coder and activist Aaron Swartz, who was charged last year for allegedly breaching hacking laws by downloading millions of academic articles from a subscription database via an open connection at MIT.

Swartz, the 25-year-old executive director of Demand Progress, has a history of downloading massive data sets, both to use in research and to release public domain documents from behind paywalls. He surrendered in July 2011, remains free on bond and faces dozens of years in prison and a $1 million fine if convicted.

Like last year’s original grand jury indictment on four felony counts, (.pdf) the superseding indictment (.pdf) unveiled Thursday accuses Swartz of evading MIT’s attempts to kick his laptop off the network while downloading millions of documents from JSTOR, a not-for-profit company that provides searchable, digitized copies of academic journals that are normally inaccessible to the public.

………

In essence, many of the charges stem from Swartz allegedly breaching the terms of service agreement for those using the research service.

“JSTOR authorizes users to download a limited number of journal articles at a time,” according to the latest indictment. “Before being given access to JSTOR’s digital archive, each user must agree and acknowledge that they cannot download or export content from JSTOR’s computer servers with automated programs such as web robots, spiders, and scrapers. JSTOR also uses computerized measures to prevent users from downloading an unauthorized number of articles using automated techniques.”

It gets better.

The DoJ lost big in the 9th circuit court, which said that a violation of the TOS was a matter for civil court, but Obama’s DiJ decided not to appeal, so that they could continue to use their bogus vendettas in other jurisdictions.

Prosecutors have an obligation to represent the people.

This obligation goes beyond fishing for a suitably technically illiterate jury and using multiple indictments and the threat of decades in jail to extract a plea bargain.

This is a despicable case of prosecutorial overreach.

They are saying that, for example, lying about my appearance on a dating site would be a felony.

Prosecutors want to make their job easier, but their method, creating a world where everyone can be thrown in jail for a felony, because there is some law that they are in violation of, is repellant.

It is the hallmark of a police state.

Sanity Breaks Out In IP

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A federal judge just ruled that there is no legal obligation to secure your WiFi signal in order to prevent file sharing:

It looks like it might be hard for rights holders in various entertainment industries to sue individuals who have open Wi-Fi networks for copyright infringement done by guests, if the following court case is any indication. A California man whose open network was allegedly used to download a copyrighted video cannot be sued, according to a ruling by a federal judge.

The complaint filed in April of this year alleged that Hatfield was negligent because he didn’t secure his network, and therefore liable.

AF Holdings, who admitted in its case that it does not know the identity of the user who downloaded its video using BitTorrent, targeted Josh Hatfield with a lawsuit in federal court because it was downloaded via his unsecured home Internet connection. Hatfield moved for a dismissal on the grounds that the plaintiff failed “to state a claim” and that the claim “is barred by Section 301 of the Copyright Act and by immunity under the Communications Decency Act.”

U.S. District Judge Phyllis Hamilton dismissed the claim last week. The Electronic Frontier Foundation planned on submitting an amicus brief on behalf of Hatfield if the case had gone forward.

I’m not surprised by the ruling, but I am surprised that it happened this early in the process.

I think that people are beginning to recognize just how f%$#ed up the current IP regime is, and they are no longer willing to treat potential offenders like they’ve robbed a gas station.

Another Bit of Copyright Insanity

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This time, the automated copyright cubicle gestapo took down the Democratic Convention live stream, despite the fact that everything was appropriately licensed:

Here we go again. Less than 24 hours ago, content-protection bots killed a livestream of the Hugo Awards, thanks to the brief appearance of fully approved clips from an episode of Dr. Who. The whole situation was completely absurd to anyone harboring the tiniest vestige of common sense, but IP-protection software isn’t built on common sense: it’s built on algorithms.

This time, content protection via crawling bots have taken down another approved, perfectly legal stream. The victim this time? The Democratic National Convention’s official stream, hosted at YouTube. ………

Un-dirtyword-believable.

We really need some sanity here.

This Does Not Promote the Progress of Science and Useful Arts

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This business will get out of control. It will get out of control and we’ll be lucky to live through it.

Or how the capture of our IP regulatory process by rent seekers has f%$#ed us all:

Last night, robots shut down the live broadcast of one of science fiction’s most prestigious award ceremonies. No, you’re not reading a science fiction story. In the middle of the annual Hugo Awards event at Worldcon, which thousands of people tuned into via video streaming service Ustream, the feed cut off — just as Neil Gaiman was giving an acceptance speech for his Doctor Who script, “The Doctor’s Wife.” Where Gaiman’s face had been were the words, “Worldcon banned due to copyright infringement.” What the hell?

Jumping onto Twitter, people who had been watching the livestream began asking what was going on. How could an award ceremony have anything to do with copyright infringement?

………

And then it began to dawn on people what happened. Gaiman had just gotten an award for his Doctor Who script. Before he took the stage, the Hugo Awards showed clips from his winning episode, along with clips from some other Doctor Who episodes that had been nominated, as well as a Community episode.

………

This was, of course, absurd. First of all, the clips had been provided by the studios to be shown during the award ceremony. The Hugo Awards had explicit permission to broadcast them. But even if they hadn’t, it is absolutely fair use to broadcast clips of copyrighted material during an award ceremony. Unfortunately, the digital restriction management (DRM) robots on Ustream had not been programmed with these basic contours of copyright law.

I would also note that the use of clips in an award show used to be clearly fair use, but they had the rights anyway, but the zero tolerance of the RIAA, the MPAA, and the BBC (who do you think produces Dr. Who).

Rent seeking is always a source of inefficiency in the economy, and it should be allowed, as in the case of patent and copyright, only to the degree to which we as a society see a benefit.

The current IP regime is an impediment, not an aid to innovation and other productive work.

Google Agrees With Me

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They think that software patents suck wet farts from dead pigeons too:

Google suggested today that it might be time for the U.S. to ditch software patents.

“One thing that we are very seriously taking a look at is the question of software patents, and whether in fact the patent system as it currently exists is the right system to incent innovation and really promote consumer-friendly policies,” said Pablo Chavez, Google’s public policy director.

Chavez’s remarks at the Technology Policy Institute’s conference here this morning come as the Mountain View, Calif. company is enmeshed in a series of legal actions involving software patents, including Oracle (which Google won at trial) and Apple (which is still pending).

Software patents have become increasingly controversial in technology circles, in part because of the rise of what are derisively called “patent trolls,” and in part because of the mixed quality of the patents that the U.S. government has granted. In April, Twitter announced a kind of Hippocratic Oath for tech companies, saying its patents would only be used for defensive purposes — not to block rivals from innovating.

How about throwing some money towards the whores in Congress investing in some lobbying to change the laws.

IP as currently administrated in the United States are a major impediment to innovation, not the incentive to innovation it is supposed to be.

How to Know When You’ve Pissed off a Judge

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One hint is when he asks if you are smoking crack:

Tempers boiled over in court this morning, with the judge in the case between Apple and Samsung flat out yelling at Apple for trying to book too many witnesses in its last few hours.

“I am not going to be running around trying to get 75 pages of briefings for people who are not going to be testifying,” U.S. District Judge Lucy Koh told Apple’s lawyer Bill Lee.

“I mean come on. 75 pages! 75 pages! You want me to do an order on 75 pages, (and) unless you’re smoking crack, you know these witnesses aren’t going to be called when you have less than four hours,” Koh said.

“Your honor, I can assure you, I’m not smoking crack,” Lee replied matter-of-factly.

It’s never good to piss off a judge, but the fact that it’s Apple playing bullsh%$ patent bully does infuse in me a bit of Schadenfreude.

An Interesting Insight into the Role of IP in Developing Societies

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http://www.spiegel.de/international/zeitgeist/no-copyright-law-the-real-reason-for-germany-s-industrial-expansion-a-710976.html:

Indeed, only 1,000 new works appeared annually in England at that time — 10 times fewer than in Germany — and this was not without consequences. Höffner believes it was the chronically weak book market that caused England, the colonial power, to fritter away its head start within the span of a century, while the underdeveloped agrarian state of Germany caught up rapidly, becoming an equally developed industrial nation by 1900.

Even more startling is the factor Höffner believes caused this development — in his view, it was none other than copyright law, which was established early in Great Britain, in 1710, that crippled the world of knowledge in the United Kingdom.

Germany, on the other hand, didn’t bother with the concept of copyright for a long time. Prussia, then by far Germany’s biggest state, introduced a copyright law in 1837, but Germany’s continued division into small states meant that it was hardly possible to enforce the law throughout the empire.

Höffner’s diligent research is the first academic work to examine the effects of the copyright over a comparatively long period of time and based on a direct comparison between two countries, and his findings have caused a stir among academics. Until now, copyright was seen as a great achievement and a guarantee for a flourishing book market. Authors are only motivated to write, runs the conventional belief, if they know their rights will be protected.

Yet a historical comparison, at least, reaches a different conclusion. Publishers in England exploited their monopoly shamelessly. New discoveries were generally published in limited editions of at most 750 copies and sold at a price that often exceeded the weekly salary of an educated worker.

London’s most prominent publishers made very good money with this system, some driving around the city in gilt carriages. Their customers were the wealthy and the nobility, and their books regarded as pure luxury goods. In the few libraries that did exist, the valuable volumes were chained to the shelves to protect them from potential thieves.

In Germany during the same period, publishers had plagiarizers — who could reprint each new publication and sell it cheaply without fear of punishment — breathing down their necks. Successful publishers were the ones who took a sophisticated approach in reaction to these copycats and devised a form of publication still common today, issuing fancy editions for their wealthy customers and low-priced paperbacks for the masses.

This is an intriguing though.

I think that the current IP regime, both copyright and patent has become excessive, and serves to hinder innovation and creativity, rather than enhancing it.

But, I am still surprised that even the relatively modest protections in the 18th and 19th century,* appeared to be a major impediment to development.

I guess that those economist say about rent seeking behavior is truer than I thought.

*You had to explicitly file for copyright, and the term was only 14 years, and copyright infractions were a private tort, not a criminal infraction with the threat of years in jail.

Ouch!

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I am not sure that I want to win an IP case with this verdict:

Samsung won a victory over Apple in the UK high court as part of its world-spanning battle over intellectual property and design after a judge ruled the design of its Galaxy Tab isn’t cool enough to be confused with an iPad.

The ruling, by Judge Colin Birss, means that Apple cannot stop the import or sale of the Galaxy Tab 10 under claims it has made that the designs are too close to those of the iPad.

Instead, Judge Birss ruled that Samsung’s designs did not have the same understated and extreme simplicity which is possessed by the Apple design: “They are not as cool.”

He noted distinctions such as the thickness and details on the backs of the devices in his ruling. “The informed user’s overall impression of each of the Samsung Galaxy Tablets is the following,” he said in his ruling. “From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.”

This is a definition of a “win” of which I was previously unaware.

H/t Kevin Drum

Happy Independence Day!

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The European Parliament has resoundingly rejected ACTA, the draconian Anti-Counterfeiting Trade Agreement, 39 to 478:

Six months ago, the situation looked very dark. It was all but certain that ACTA would pass unnoticed in silence. The forces fighting for citizens’ rights tried to have it referred to the European Court of Justice, in order to test its legality and to buy some time. Then, something happened.

A monster by the name of SOPA appeared in the United States. Thousands of websites went dark on January 18, and millions of voices cried out, leaving Congress shellshocked over the fact that citizens can get that level of pissed off at corporate special interests. SOPA was killed.

In the wake of this, as citizens had realized that they didn’t need to take that kind of corporate abuse lying down and asking for more, the community floodlights centered on ACTA. The activism carried over beautifully to defeat this monster. Early February, there were rallies all over Europe, leaving the European Parliament equally shellshocked.

………

In theory, ACTA could still come into force between the United States and a number of smaller states. Ten states have been negotiating it, and six of those need to ratify it to have it come into force. In theory, this could become a treaty between the United States, Morocco, Mexico, New Zealand, Australia, and Switzerland. (But wait, the Mexican Senate has already rejected ACTA. As has Australia and Switzerland in practice. Oh well… a treaty between the United States and Morocco, then, in the unlikely event that the United States will actually and formally ratify it. You can see where this is going.)

As described before on TorrentFreak, without the support of the European Union, ACTA is dead. Doesn’t exist.

Note however that this is not an end, but merely one battle:

Many of the bad things in ACTA will return under other names. For the lobbyists, this is a nine-to-five job of jabbing against the legislation until it gives way. Just another day at work. We need to remain vigilant against special interests who will return again, again, and again, until we make sure that the legislative road for them is completely blocked. We must remain watchful.


This is Not Star Trek. In Startrek, the Evil Spock has a goatee. In our world the evil James O’Keefe is clean shaven.

People who understand IP and the net have been raging against the overreach against since the passage of the Sonny Bono Copyright Term Extension Act (AKA the Mickey Mouse Protection Act), and it appears that it’s finally beginning to find some sort of currency.

H/t Jamie O’Keefe (the good one)

China Mandates Compulsory Licensing of Pharmaceuticals

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China has proposed compulsory licensing of drugs:

China has overhauled parts of its intellectual property laws to allow its drug makers to make cheap copies of medicines still under patent protection in an initiative likely to unnerve foreign pharmaceutical companies.

The Chinese move, outlined in documents posted on its patent law office website, comes within months of a similar move by India to effectively end the monopoly on an expensive cancer drug made by Bayer AG by issuing its first so-called “compulsory license”.

The action by China will ring alarm bells in Big Pharma, since the country is a vital growth market at a time when sales in Western countries are flagging.

The amended Chinese patent law allows Beijing to issue compulsory licenses to eligible companies to produce generic versions of patented drugs during state emergencies, or unusual circumstances, or in the interests of the public.

For “reasons of public health”, eligible drug makers can also ask to export these medicines to other countries, including members of the World Trade Organisation.

Compulsory licenses are available to nations to issue under WTO rules in certain cases where life-saving treatments are unaffordable.

“The revised version of Measures for the Compulsory Licensing for Patent Implementation came into effect from May 1, 2012,” China’s State Intellectual Property Office said in a faxed statement to Reuters.

The changes can be found on the website of China’s State Intellectual Property Office at http://link.reuters.com/tus68s

Here is the Google Translate link.

Number one on the compulsory licensing hit parade will apparently be the AIDS anti-viral tenofovir.

One significant part of this is that compulsory licensing is not covered by the ban on drug re-importation, because they weren’t exported from the US.

WTO rules would seem to indicate that, absent an extension of the law to cover compulsory licenses, that they would be legal in the US.

Then again, the phrase, “Drugs made in China,” gives me less confidence than, for example, French manners or British cooking,.

H/t Naked Capitalism.

They Will Be Back

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Small farmers in Mexico have managed to block a law to legalize Monsanto’s seed monopolies:

Progressive small farmer organizations in Mexico scored a victory over transnational corporations that seek to monopolize seed and food patents. When the corporations pushed their bill to modify the Federal Law on Plant Varieties through the Committee on Agriculture and Livestock of the Mexican Chamber of Deputies on March 14, organizations of farmers from across the country sounded the alarm. By organizing quickly, they joined together to pressure legislators and achieved an agreement with the legislative committee to remove the bill from the floor.

What’s at stake is free and open access to plant biodiversity in agriculture. The proposed modifications promote a privatizing model that uses patents and “Plant Breeders’ Rights” (PBR) to deprive farmers of the labor of centuries in developing seed. The small farmers who worked to create this foundation of modern agriculture never charged royalties for its use.

Although the current law, in effect since 1996, pays little heed to the rights of small farmers, the new law would be far worse. Present law tends to benefit private-sector plant breeders, allowing monopolies to obtain exclusive profits from the sale of seeds and other plant material for up to 15 years, or 18 in the case of perennial ornamental, forest, or orchard plants–even when the plants they used to develop the new varieties are in the public domain.

The legislative reform would extend exclusive rights from the sale of reproductive material to 25 years. Further, it seeks to restrict the rights of farmers to store or use for their own consumption any part of the harvest obtained from seeds or breeding material purchased from holders of PBRs.

The bill wasn’t defeated, it just didn’t pass, so this is a temporary victory.

Monsanto and its ilk will come back again … and again … and again until they get their bill.

Google Wins

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The judge has now ruled on whether or not the Java API is covered by coopyright, and he said no.

This must be the one of the few federal judges out there who understands programming:

Oracle’s legal battle to break itself off a chunk of the smartphone market by attacking Android looks dead in the water today, after a federal judge who recently finished presiding over the six-week Oracle v. Google trial ruled that the structure of the Java APIs that Oracle was trying to assert can’t be copyrighted at all.

It’s only the code itself—not the “how-to” instructions represented by APIs—that can be the subject of a copyright claim, ruled Judge William Alsup. “So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API,” wrote the judge.

Google had copied certain elements—names, declaration and header lines—of the Java APIs. Alsup ruled that even though Google could have rearranged “the various methods under different groupings among the various classes and packages,” the overall name tree is “a utilitarian and functional set of symbols, each to carry out a pre-assigned function… Duplication of the command structure is necessary for interoperability.”

………

Alsup compared APIs to a library, with each package as a bookshelf in the library, each class a book on the shelf, and each method a chapter out of a how-to book. “As to the 37 packages, the Java and Android libraries are organized in the same basic way but all of the chapters in Android have been written with implementations different from Java but solving the same problems and providing the same functions.” The declarations, or headers, “must be identical to carry out the given function,” wrote Alsup.

Ninety-seven percent of the source code in the API packages is different; it’s only the three percent that overlaps that formed the heart of Oracle’s copyright claim. That three percent included packages, methods, and class names. But those declarations—like starting a function with package java.lang—can only be used in certain ways. “In order to declare a particular functionality, the language demands that the method declaration take a particular form,” notes Alsup (emphasis in original).

Alsup’s ruling comes less than a month after a European court made a decision along the same lines, finding that programming APIs can’t be copyrighted because it would “monopolize ideas.”

Judge Alsup gets it.

He understands the basic concepts, and he understands computers.

I am pleasantly surprised.

Google Did Not Infringe Java Patents

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The jury has ruled that Oracle’s patents were not infringed by Android:

Google on Wednesday was cleared of charges that it had infringed Oracle’s Java patents, ending the second major phase of the trial.

“Today’s jury verdict that Android does not infringe Oracle’s patents was a victory not just for Google but the entire Android ecosystem,” a Google spokesperson said in an emailed statement.

Oracle, however, did not concede defeat. “Oracle presented overwhelming evidence at trial that Google knew it would fragment and damage Java,” an Oracle spokesperson said via email. “We plan to continue to defend and uphold Java’s core write once run anywhere principle and ensure it is protected for the nine million Java developers and the community that depend on Java compatibility.”

Oracle filed its lawsuit against Google last August and the trial began in mid-April. Oracle initially talked about $6 billion in damages. At the moment, it appears Oracle is unlikely to win enough to cover its legal costs.

All that’s left is the whether or not Java’s API, basically the standards for interoperability, are copyrightable.

The jury didn’t rule on this, they could not come to a conclusion on fair use, and they were instructed by the judge to assume that the API is copyrightable. The judge will decide these matters of law, the jury was to rule on matters of fact.)

It appears from the Slashdot discussions that the judge actually made an effort to understand the technical issues, so his ruling should be interesting.

Jeebus, They Are Claiming that API’s are Copyrightable?

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That appears to be the jury ruling in the Oracle-Google lawsuit:

In what could be a major blow to Android, Google’s mobile operating system, a San Francisco jury issued a verdict today that the company broke copyright laws when it used Java APIs to design the system. The ruling is a partial victory for Oracle, which accused Google of violating copyright law.

But the jury couldn’t reach agreement on a second issue—whether Google had a valid “fair use” defense when it used the APIs. Google has asked for a mistrial based on the incomplete verdict, and that issue will be briefed later this week.

The results aren’t clear going forward. Both sides are going to write briefs arguing how to proceed from here, with Google likely arguing the verdict needs to be thrown out, while Oracle somehow tries to hang on to its win on question 1A, the fundamental question about whether Google infringed copyright.

No one knows the jury’s internal deliberations, so it’s speculative to guess at what led to the partial verdict. But one reason could be the unusual construction of this trial. Judge William Alsup, who is overseeing the case, ruled that the case would be decided by a jury of 12, which is large for a civil case and increases the possibility of having one or more “holdout” jurors. Alsup also ruled that the jury must decide unanimously, a requirement for criminal cases that’s not always imposed on civil juries.

Now let’s be clear here: The judge apparently instructed the jury to assume that APIs are copyrightable, in order for them to make decisions about the facts, but that decision will actually be rendered by the judge later. (Yeah, the law is a bitch)

Speaking as a non-lawyer and non-computer programmer, if this stands, it stands a very good chance to shut down much of the software industry in the United States, because any supplier of a platform, at any time, on the machine that you owe, could ban, or demand usurious licensing fees, for any 3rd party software.

So Microsoft could demand fees from (for example) Open Office in order to run on Windows.

In any case, the substantive ruling is the judge’s and that is clearly subject to appeal, you appeal on the law, not the adjudicated facts, so the final decision will likely be either the court of appeal of SCOTUS.

Yet another example of just how %$#ed up our IP system is.

The Oatmeal Nails It

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Basically, the artist described his experience attempting to legally rent Game of Thrones.

Here are the first few frames:


link

Read the whole thing.  It shows how the need for control makes the studios sh%$ on their customer, which in turns drives people who want to act in accordance with the exclusive license that the content producers hold to Bit Torrent and the like.

Read the whole thing.