SoftBank Owned Patent Troll, Using Monkey Selfie Law Firm, Sues To Block Covid-19 Testing, Using Theranos Patents
This is literally the single most corrupt thing I have ever heard of, and what’s more, this is the sort of corruption that the US government seeks to entrench when it negotiates trade deals.
This is so wrong on so many levels.
Given that he is a former pharmaceutical executive, this is not a surprise:
Members of Congress and advocacy groups are voicing outrage after Health and Human Services Secretary Alex Azar—a former pharmaceutical executive—repeatedly refused during House testimony Wednesday to guarantee that any coronavirus vaccine or treatment developed with taxpayer money will be affordable for all in the U.S., not just the rich.
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During testimony before the House Energy and Commerce Committee Wednesday, Azar was pressed multiple times to vow that vaccines and treatments for the coronavirus will be priced fairly and made affordable for all U.S. households.
“We would want to ensure that we’d work to make it affordable,” Azar told Rep. Jan Schakowsky (D-Ill.), “but we can’t control that price because we need the private sector to invest.”
You don’t need the private sector to invest.
The research will be government funded, and you have tools, such as a threat to invoke Biden-Dole march in rights on most of their patent portfolio, to coerce basic human decency out of these firms.
In yet another example of why Congress should pass right to repair legislation, farmers in the Midwest are engaging in bidding wars over 40 year old tractors because they are not locked out of fixings them by the manufacturers:
Kris Folland grows corn, wheat and soybeans and raises cattle on 2,000 acres near Halma in the northwest corner of Minnesota, so his operation is far from small. But when he last bought a new tractor, he opted for an old one — a 1979 John Deere 4440.
He retrofitted it with automatic steering guided by satellite, and he and his kids can use the tractor to feed cows, plant fields and run a grain auger. The best thing? The tractor cost $18,000, compared to upward of $150,000 for a new tractor. And Folland doesn’t need a computer to repair it.
“This is still a really good tractor,” said Folland, who owns two other tractors built before 1982.
“They cost a fraction of the price, and then the operating costs are much less because they’re so much easier to fix,” he said.
Tractors manufactured in the late 1970s and 1980s are some of the hottest items in farm auctions across the Midwest these days — and it’s not because they’re antiques.
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The other big draw of the older tractors is their lack of complex technology. Farmers prefer to fix what they can on the spot, or take it to their mechanic and not have to spend tens of thousands of dollars.
“The newer machines, any time something breaks, you’ve got to have a computer to fix it,” Stock said.
There are some good things about the software in newer machines, said Peterson. The dealer will get a warning if something is about to break and can contact the farmer ahead of time to nip the problem in the bud. But if something does break, the farmer is powerless, stuck in the field waiting for a service truck from the dealership to come out to their farm and charge up to $150 per hour for labor.
I’m seriously beginning to think that every innovation introduced since the Reagan administration has just been a scam.
It looks like Gilead Sciences delayed the introduction of safer HIV medications because they want to extend the monopoly rents on older drugs.
What’s the destruction of some patients’ bone marrow and kidneys against more profits? Priorities man:
In 2005, Gilead Sciences notified federal regulators that it was suspending development of a potentially safer, more potent HIV-fighting drug than the one on the market. The company did not restart its Food and Drug Administration application until 2010. Now the five-year delay of a promising drug is at the core of accusations by advocates that Gilead improperly exploited the patent system at the expense of patient health.
An HIV-prevention group called PrEP4All Collaboration filed a petition Wednesday with the U.S. Patent and Trademark Office contending Gilead knew its new, improved drug — approved in 2015 and now part of Gilead’s combination therapies Genvoya and Descovy — was safer. But it alleged Gilead postponed development so it could continue to gain monopoly profits from its older combination HIV drugs, including Viread and Truvada, for a longer period,before those drugs went off patent and faced generic competition.
Gilead used the delaying tactic even though the older drugs posed more risks to bone and kidney health, PrEP4All alleged.
This is some seriously evil sh%$:
The group is asking the Patent and Trademark Office to reject Gilead’s request for three extra years of patent life on the newer drug, called tenofovir alafenamide, or TAF. Odds of success are steep because the patent office will review such third-party petitions only in “extraordinary’’ circumstances, according to its rules.
“Gilead has not only intentionally delayed clinical development of a drug to artificially manipulate its eligibility for a patent-term extension, but it has done so despite the apparent harm to patients,’’ said Christopher Morten, who is supervising attorney at New York University’s Technology Policy and Law Clinic, who filed the petition on behalf of PrEP4All.
Indeed.
One of the main drivers of inequality in our society is sh%$ like this.
It is a tax on the rest of us that goes into the pockets of companies that would never even consider the public good in their decisions.
I’m not sure that we can thow these guys in jail, but we can fix the system that they exploit to do this.
Since its founding in 1982, the U.S. Court of Appeals for the Federal Circuit, aka “The Patent Court” has been a morass of sloppy patent maximalist jurisprudence.
This is why the Supreme Court has been routinely overturning their rulings over the past few years.
Whenever the Supreme Court agrees to review a case from the patent court, there is some sort of reversal in the works, and likely a significant amount of shade thrown at back at the court.
Now SCOTUS will review one of the worst opinions of the Patent Court, Google v. Oracle, where it was determined that programming interfaces (APIs) were subject to copyright, which has the effect of making program interoperability unlawful:
Some big news out of the Supreme Court this morning, as it has agreed to hear the appeal in the never-ending Oracle v. Google lawsuit regarding whether or not copyright applies to APIs (the case is now captioned as Google v. Oracle, since it was Google asking the Supreme Court to hear the appeal). We’ve been covering the case and all its permutations for many years now, and it’s notable that the Supreme Court is going to consider both of the questions that Google petitioned over. Specifically:
- Whether copyright protection extends to a software interface.
- Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
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To me, as I always point out in this case, the key element will be getting the Supreme Court to recognize that an API is not software. Oracle and its supporters keep trying to insist that an API and executable code are one and the same, and I worry that the Supreme Court will not fully understand the differences, though I am sure that there will be compelling amici briefs trying to explain this point to them.
It’s clear that SCOTUS is looking to slap down the patent court again.
If you are not sure what a API is, it is a set of specifications that describe how programs talk with each other.
For example, if you wanted the square route of a number, you might do it by sqrt(#) or [#]squareroute.
They both mean exactly the same thing, but one will work with a program, and the other won’t.
Essentially, Oracle is claiming copyright of program compatibility, and the patent court swallowed it hook line and sinker.
I literally wrote, “I Cannot Find the Evil Here,” regarding the Trump Administration’s move against Gilead for violating the CDC’s patent on “Truvada for PrEP,” which used the drug as a prophylactic treatment for HIV.
Well, it turns out that the nature of the CDC patent is such that their attempted enforcement of their claims would allow big Pharma to “Evergreen” (maintain their drug monopoly) basically forever.
It turns out that the patent is not on the drug, but on the fact that taking one pill a day will prevent HIV infection.
This is wrong on a number of levels.
First, the PrEP treatment was not an invention, it was a discovery, which should not be patentable, and second, if upheld, this will provide drug makers with the ability to acquire IP based exclusivity forever:
The Trump administration appeared this month to finally act on a campaign promise to lower drug prices by taking the maker of an HIV drug to court for violating a government patent.
But as with all things Trump, what you see on the surface is not all that’s actually going on.
First, this is only about one drug, a crucial drug to prevent HIV, that was developed with taxpayer money. Its high price has been targeted by well-organized activists for the HIV/AIDS community because it costs more than 300 times as much in the United States as in Africa.
Second, and more importantly, the federal complaint may well help drug companies extend their patents and years of sales at inflated monopoly prices.
“Evergreening” patents and sales exclusivity by the pharmaceutical industry is one of key factors in the high price of prescription drugs in the United States. It keeps cheaper generics medicines off the market.
The specific patent that the U.S. government wants to protect, and get paid for, is one of the controversial group of patents for a process. It covers the prescribed regimen that says the patient must take one pill daily—but not the pill itself.
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Critics think the government patent is weak. But they also worry that a court decision may validate patents for the regimen, which could create a government-supported precedent allowing drug companies to maintain monopoly prices for decades and possibly forever.
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Prevention is a secondary use of Truvada. Patents for secondary uses, or for processes—telling patients what pill to take and when—have given drug companies essentially eternal monopolies on sales of those medicines.
“If the government protects this kind of patent, it could ultimately serve drug makers and enable them to keep recycling old patents,” said Love. His non-profit organization has been in the front of efforts to push Congress to force the Bush, Obama and now the Trump administrations to stop giving profitable, semi-permanent patent protection to makers of drugs developed through taxpayer-funded research.
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The U.S. Government has rarely fought a major pharmaceutical corporation for royalties, though groups such as KEI and Public Citizen have been pushing for aggressive action related to drugs largely funded by American taxpayers.………
Gilead charges American patients with AIDS about $20,000 per year for the drug Truvada. The same/version of the drug sells in Africa for $60 per year. Truvada for PrEP is the term for applying the drug to prevent AIDS infection. PrEP is an acronym for pre-exposure prophylaxis. This preventive usage is crucial for public health strategies to eradicate HIV and AIDS by 2030, a target announced by Donald Trump this year.
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Yale University’s Global Health Justice Program leadership, during Congressional hearings in May on PrEP access and costs, slammed Gilead for its refusal to share the proceeds from its sales of Truvada with the government or to significantly lower the price for patients in the United States.
In a letter to the House Oversight Committee, Yale’s health justice team also raised questions about the government’s patent of the secondary use and the treatment process. “We have serious concerns about the value that method of treatment patents like the CDC’s patents for PrEP (and still more other “secondary” patents),” the team wrote.
“Indeed, they are regularly used by the pharmaceutical industry to artificially extend patent protection on expensive brand name drug products, delay generic competition, and keep prices high,” the Yale letter continued.
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KEI’s Love said the government has been slow to act. “HHS could have exercised march-in rights three years ago on this drug paid for by U.S. taxpayers,” Love said. The government could have applied for a patent that guaranteed the royalty payments to America, not profits to Gilead. “But getting a patent for the procedure is another way of “evergreening” a patent – it makes the United States a patent troll.”
FYI, “March-In Rights” are a provision of Bayh-Dole, the 1980 law that privatized the proceeds of most federally funded research.
The “March-In Rights” allow the federal government to license patents to other entities if the patent holder fails to meet the, “Health and safety needs of consumers.”
Despite the egregious actions of big pharma, “March-In” has never been applied.
I would prefer for the Bayh-Dole to be completely repealed, but the case for “March-In” is incontrovertible.
Gilead Sciences has been sued by the US government for violating HHS patents with its HIV preventative drugs. (Truvada and Descovy)
Considering the fact that their drugs costs $1800.00/month in the US, and $8.00 in Australia, going after the price gougers at Gilead is an unalloyed good, but it’s the Trump administration, so I’m trying to figure out how they got here.
There has to be some sort of corruption or evil behind this.
A rift between the Centers for Disease Control and pharmaceutical giant Gilead Sciences ruptured further Wednesday when the Trump administration sued Gilead in U.S. District Court, asserting that Gilead made billions of dollars on HIV prevention therapy while repeatedly ignoring government patents.
The patent infringement case against a major drug company, coming at a time of increasing political anger over drug prices, signals a shift in a relationship that typically has been collaborative. The San Francisco-based company has worked for years with the Centers for Disease Control and Prevention to fight HIV, including providing free drugs for government experiments, as well as efforts to expand treatment of hepatitis C.
But the lawsuit filed on behalf of the Department of Health and Human Services this week describes how, beginning in 2015, Gilead repeatedly refused to recognize CDC patents for an HIV prevention called Truvada for PrEP.“Gilead has repeatedly refused to obtain a license from CDC to use the patented regimens,’’ the government said in its lawsuit, filed by the Justice Department in federal court in Delaware. “Meanwhile, Gilead has profited from research funded by hundreds of millions of taxpayer dollars. Indeed, Gilead has reaped billions from PrEP . . . but has not paid any royalties to CDC.’’
If I were directing CDC of HHS policy, I would not be asking for royalties, I’d be demanding price controls as a condition for the license.
It would save a lot more money than any royalty scheme.
The US Navy has filed a patent for a room temperature superconductor and a high-energy electromagnetic field generator, and the patents claim that these technologies are “operable”, meaning that they have working models.
There are a number of requirements for patent, most notably that it be non-obvious and novel, which the claims characteristics fulfill.
There is also a requirement that a patent be public, so that once it expires, a “Skilled person in the art,” can implement their invention.
There is an exception to the public requirement though, the government can classify a patent for national security reason.
For example, the first patent for a laser was classified, and the creator of the patent was refused access to it, because of his political activities in his youth.
If there were actually working models of these two inventions right now, the Navy would have classified the patents.
They don’t, but they want to clear the deck if someone does come up with working models, so those folks cannot restrict the government’s use of whatever is developed:
Last month, The War Zone reported on a series of strange patent applications the U.S. Navy has filed over the last few years and questioned what their connections may be with the ongoing saga of Navy personnel reporting incidents involving unidentified objects in or near U.S. airspace.
We have several active Freedom of Information Act requests with the Department of Navy to pursue more information related to the research that led to these patents. As those are being processed, we’ve continued to dig through the U.S. Patent and Trademark Office’s (USPTO) Public Patent Application Information Retrieval database to get as much context for these patents as possible.
In doing so, we came across documents that seem to suggest, at least by the Navy’s own claims, that two highly peculiar Navy patents, the room temperature superconductor (RTSC) and the high-energy electromagnetic field generator (HEEMFG), may in fact already be in operation in some manner. The inventor of the Navy’s most bizarre patent, the straight-out-of-science fiction-sounding hybrid aerospace/underwater craft, describes that craft as leveraging the same room temperature superconductor technology and high energy electromagnetic fields to enable its unbelievable speed and maneuverability. If those two technologies are already operable as the Navy claims, could this mean the hybrid craft may also already operable or close to operable? Or is this just more evidence that the whole exotic ‘UFO’ patent endeavor on the Navy’s behalf is some sort of ruse or even gross mismanagement of resources?
At the heart of these questions is the term “operable.” In most patent applications, applicants must assert proof of a patent’s or invention’s “enablement,” or the extent to which a patent is described in such a way that any person who is familiar with similar technologies or techniques would be able to understand it, and theoretically reproduce it.
However, in these patent documents, the inventor Salvatore Pais, Naval Air Warfare Center Aircraft Division’s (NAWCAD) patent attorney Mark O. Glut, and the U.S. Naval Aviation Enterprise’s Chief Technology Officer Dr. James Sheehy, all assert that these inventions are not only enabled, but operable. To help me understand what that term may mean in these contexts, I reached out to Peter Mlynek, a patent attorney.
Mlynek informed me that the terms “operable” or “operability” are not common in patent applications, but that there is little doubt that the use of the term is meant to assert to the USPTO that these inventions actually work:
If they had working models for this sort of technology, this would a classified submittal, because it would be a a leap forward in the technology.
Later in the article, there is correspondence between senior Navy personnel and the patent examiner advocating for what are a profoundly weird claims, which implies that the Navy, or the Pentagon, has a reason for aggressively supporting the claims.
And all of these documents were publicly available, because????
My guess is that either the Navy finds this credible enough that they want to preempt other patent holders, or this is an attempt to send scientists and engineers from other nations (Russia and China) down a dead end.
When discussing issues of patent, copyright,a d trademark, it is important to note that, “Intellectual Property Isn’t Property.”
It never has been.
If I steal your car, you no longer have the use of that car.
If I excerpt your essay, you still have that essay.
You cannot take IP in the same way that one could a spoon:
Frank Luntz’s rebranding of the estate tax as the “death tax” was an impressive bit of marketing genius, but perhaps the greatest branding coup in modern American politics was the introduction of the term “intellectual property” into the policymaking lexicon. Intellectual property guarantees the owner exclusive rights to the use of an idea, but the uglier-sounding term “intellectual monopoly” is actually more accurate.
It may be too late to cast intellectual property out of our parlance in favor of intellectual monopoly, but it’s worth addressing the underlying philosophical claim to ideas as property. There is a strong consequentialist case for intellectual property in theory, but IP does not satisfy the Lockean definition of property and therefore shouldn’t grant the holder property rights under a natural-rights framework.
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To examine where property rights come from, let’s turn to John Locke’s Second Treatise of Government. To avoid a lengthy discussion about the merits of Locke’s arguments, let’s take the existence of property rights as he discusses them as a given: If I own myself and I put a part of myself, through my labor, into an unclaimed physical object, I should have exclusive claim to it in the same way I should have exclusive claim to my body and labor.
Why doesn’t this logic work for ideas? Most obviously and importantly, because physical property is scarce and rivalrous. If I take a piece of wood from the wilderness and whittle it into a spoon, anyone who uses that specific spoon is depriving me of my ability to use it.
This is at the nub of the problem Locke is trying to solve. Because physical objects are scarce and rivalrous in use, rights to use and control are necessarily exclusive: If one person gets to use and control the spoon, nobody else does. Locke is wondering how such exclusive rights got going if (as Locke believed) the physical world was given to people in common by their creator. He solves the riddle by asserting the right of self-ownership. Since our bodies and minds start out under our exclusive control, mixing our labor with external objects can bring them out of the common pool and into the realm of private property.
Ideas, on the other hand, are non-rivalrous, meaning their use by one party doesn’t prevent another from using them. If I come up with a new design for a wooden spoon and someone else uses the same idea (whether they learned it from me or developed it independently), my ability to use that design isn’t impeded.
What is impeded is my ability to monetize my design while denying others the ability to do the same. And in cases where the cost of innovation is high but the cost of imitation low, that impediment could end up mattering a great deal for society. Encouraging innovation by helping creators to monetize their creations is at the heart of the consequentialist case for IP. These considerations are, however, outside the scope of a Lockean case for intellectual property.
Furthermore, while you have a right to the products of your mind just as you have a right to the products of your body, there’s an important distinction that must be made between an idea in your head and one that’s known to others. If I come up with an original idea for a widget, song, book, or joke, I could tweet it, tell it to a few close friends, or take it to the grave. This is a natural extension of someone’s right to their own mind.
But once an idea is out in the open, it’s analogous to someone selling or giving away physical property they appropriated from nature. As long as something is transferred voluntarily, the original owner can’t make a claim to this property once it changes hands (or in this case, minds). To maintain otherwise would violate the right to free exchange, a natural extension of the right to property.
Meanwhile, physical property could theoretically remain private forever, while even the staunchest supporters of IP rights believe ideas should enter the public domain at some point. Suppose Alice goes through the traditional process of Lockean appropriation to produce a spoon. That could be hers through the end of her life, but if she gives it to Bob it becomes his. He can then give it to Charlie, and so on. At no point in this chain does the spoon go back into the commons for someone else to appropriate. To believe that intellectual property is, in fact, property, one must also accept the possibility of this infinite chain of private ownership.
The solution to this conundrum is to understand that IP is public interest law, as it states in the Constitution, it exists, “To promote the progress of science and useful arts.”
It is there to serve the public interest, by making the public pay for its benefits.
In other words, it’s socialism.
Free speech in the patent world saw a big win on Friday, when the New Hampshire Supreme Court held that calling someone a “patent troll” doesn’t constitute defamation. The court’s opinion [PDF] is good news for critics of abusive patent litigation, and anyone who values robust public debate around patent policy. The opinion represents a loss for Automated Transactions, LLC (ATL), a patent assertion entity that sued [PDF] more than a dozen people and trade groups claiming it was defamed.
EFF worked together with the ACLU of New Hampshire to file an amicus brief [PDF] in this case, explaining that the lower court judge got this case right when he ruled against ATL. That decision gave wide latitude for public debate about important policy issues—even when the debate veers into harsh language. We’re glad the New Hampshire Supreme Court agreed.
Last week’s ruling court notes that “patent troll” is a phrase used to describe “a class of patent owners who do not provide end products or services themselves, but who do demand royalties as a price for authorizing the work of others.” However, the justices note that “patent troll” has no clear settled definition. For instance, some observers of the patent world would exclude particular entities, like individual inventors or universities, from the moniker “patent troll.”
Because of this, when ATL’s many critics call it a “patent troll,” they are expressing their subjective opinions. Differences of opinion about many things—including patent lawsuits—cannot and should not be settled with a defamation lawsuit.
Personally, I would call ATL a bunch of pig felching patent trolling rat bastards, which I think is protected too.
This program has been documented since before Google bought them, and only now are they taking action:
YouTube is going after an alleged copyright troll using the Digital Millennium Copyright Act’s (DMCA) provisions, alleging that Christopher Brady used false copyright strikes to extort YouTube creators, harming the company in the process. Now, YouTube is suing Brady, using the DMCA’s provisions against fraudulent takedown claims, seeking compensatory damages and an injunction against future fraudulent claims.
The lawsuit, first spotted by Adweek reporter Shoshana Wodinsky, alleges that Brady sent multiple complaints claiming that a couple of Minecraft gaming YouTubers — “Kenzo” and “ObbyRaidz” — infringed on his copyrighted material in January. (Their legal names were not listed in the lawsuit.) YouTube removed the videos that Brady claimed were infringing on his copyrighted material, as the company does whenever a claim is submitted.
ObbyRaidz was sent a message from Brady, according to the lawsuit, that stated if the YouTuber didn’t pay Brady $150 via PayPal (or $75 in bitcoin), he would issue a third copyright strike. This would essentially terminate ObbyRaidz’ channel and remove all of his videos from the platform. Kenzo was sent a similar message, but Brady requested $300. ObbyRaidz spoke about the situation in a video, noting that he made multiple attempts to get in touch with someone at YouTube but didn’t make any progress.
Of course he couldn’t contact a human being. That is the primary goal of all Google customer support, which opens up all its platforms to scammers and fraud.
The law, which was almost never applied to copyright plaintiffs, was that if the defendant made a reasonable offer in negotiations, and the final judgement was less than that, then the plaintiff was responsible for all court costs of the defendant.
This judge is sick of this lawyer using her court as an extension racket, and so has demanded that a $50,000.00 bond be posted for such an eventuality.
In the last couple of years, lawyer Richard Liebowitz has really made a name for himself in copyright trolling circles. He’s quite aggressive, and even got a huge profile written about him at Slate, in which it notes that, unlike many trolls who focus purely on shakedown settlement letters, Liebowitz runs straight to court to leverage the power of an expensive court case to push for insane settlements. “Sue first and negotiate later.” The Hollywood Reporter has done its own profile on Liebowitz as well.
It appears that many of his cases have ended up before federal judge Denise Cote, who clearly sees through his scam. Last year, we noted her scolding him for his practices, including not following court rules. Cote even referred to him as a “copyright troll” — something that offended him so much he requested that it be redacted. That request not only failed, but Cote reiterated:
“His litigation strategy in this district fits squarely within the definition of a copyright troll.”
Liebowitz is back before Judge Cote yet again in one of his many cases, and it’s not going well. As pointed out by the copyright troll fighters at Booth Sweet, Liebowitz is busy setting precedents that are bad for copyright plaintiffs. In this particular case, the issue has to do with Rule 68 of the Federal Rules of Civil Procedure. Under Rule 68, when sued, a defendant may make a settlement offer that includes some specific terms.
In this particular case, Liebowitz, representing photographer Gregory Mango, sued Democracy Now!. Democracy Now! looked up how much Mango was licensing his photos for (a maximum of $220) and made a Rule 68 offer to settle for 5 times that amount. Liebowitz quickly turned the offer down, as he was seeking much more. But here’s the fun part of Rule 68. It’s part (d):
Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.
Translated: If Mango/Liebowitz’s final judgment is less favorable than the ~$1,000 Democracy Now! offered under Rule 68, then Mango is on the hook for all of Democracy Now’s legal fees incurred after that offer was made. That is likely to be many thousands of dollars. As Booth Sweet notes, many courts have said that Rule 68 doesn’t apply to copyright cases, but in Cote’s latest ruling she says it does, and tells Liebowitz to post a bond for $50,000.
In other words, even if Mango “wins” the case, but gets less than $1,000, he may be on the hook for tens of thousands of dollars in legal fees.
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As we’ve seen with similar trollish operation, Mathew Higbee, it’s unclear whether these trolling operations are fully informing their clients that this kind of litigation could leave the clients on the hook for paying the other side’s legal fees. Both Liebowitz and Higbee promote their services on their respective pages as nearly risk free. Liebowitz’s says: “We work on a contingency fee basis, meaning we don’t get paid unless and until you get paid.” Higbee’s reads: “We are results oriented, so most of the cases we handle even have a money back guarantee or are done on contingency.”
That’s probably why so many photographers are willing to jump on board — as it seems like a “free” way to get extra cash while doing nothing. But not realizing that you may be opening yourself up to quite a bit of liability for filing bogus copyright lawsuits seems like a problem. Actually, it seems like a risk that a good lawyer would explain to his or her clients before signing them up. One wonders whether or not Liebowitz actually warns his clients of such a risk.
I am pretty sure that the lawyers don’t warn their clients about this, but I’m pretty sure that a lot of judges will require them to notify their clients in the future.
Microsoft is shutting down its DRM servers for its ebooks, which means that anyone who ever bought a book from them will no longer be able to read them.
Cory Doctorow warned us about this, as he strongly notes:
“The books will stop working”: That’s the substance of the reminder that Microsoft sent to customers for their ebook store, reminding them that, as announced in April, the company is getting out of the ebook business because it wasn’t profitable enough for them, and when they do, they’re going to shut off their DRM servers, which will make the books stop working.
Almost exactly fifteen years ago, I gave an influential, widely cited talk at Microsoft Research where I predicted this exact outcome. I don’t feel good about the fact that I got it right. This is a f%$#ing travesty.
(%$# mine)
Do not tolerate DRM in your media.
Otherwise, they would take them to court for their “illegal” downloads, where their targets would be revealed as pr0n watchers.
Of course, the downloads were not illegal, they were uploaded by lawyers and their agents.
Well, the HMFIC of this scheme just got sentenced to 14 years in prison.
It could not happen to a more deserving asshole:
A federal judge in Minneapolis has sentenced Paul Hansmeier to 14 years in prison for an elaborate fraud scheme that involved uploading pornographic videos to file-sharing networks and then threatening to sue people who downloaded them.
“It is almost incalculable how much your abuse of trust has harmed the administration of justice,” said Judge Joan Ericksen at a Friday sentencing hearing.
We’ve been covering the antics of Hansmeier and his business partner John Steele for many years. Way back in 2012, we started reporting on a law firm called Prenda Law that was filing lawsuits against people for sharing pornographic films online. Prenda wasn’t the only law firm filing these kinds of lawsuits, but Prenda came up with a novel way of ginning up more business: uploading the films itself, including some that were produced by Prenda associates.
A key part of the firm’s strategy was to seek settlements of a few thousand dollars. The demanded sums were small enough that it cost less to settle the lawsuits than fight them. Prosecutors say that the men made more than $6 million from copyright settlements between 2010 and 2013.
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As the extent of the alleged fraud became apparent, judges began referring the pair to federal prosecutors. In 2016, the two men were arrested and charged with federal fraud, perjury, and money laundering.
The Minneapolis Star Tribune summarized the prosecutors’ case: “When challenged by judges around the country, Hansmeier blamed other lawyers who were hired to file lawsuits on his behalf, lied to the courts about his own involvement, and ordered the destruction of evidence.”
This is a very well deserved ass whupping.
No site blocking, no elimination of safe harbors, and no automated content filters:
The Standing Committee on Industry, Science and Technology has published its long-awaited review of Canada’s Copyright Act. The review, which serves as guidance for the Government, rejects a non-judicial site-blocking regime and keeps the current safe harbors intact.
Late 2017 Canada’s government requested the Standing Committee on Industry, Science and Technology (INDU) to carry out a thorough review of the Copyright Act.
After dozens of hearings, where it heard hundreds of witnesses and reviewed input from various stakeholders, the final review is now ready and published in public.
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Related proposals suggested narrowing the ‘safe harbor’ for online service providers (OSPs). This includes changes to sections 31.1 and 41.27 of the Copyright Act, including abolishing these altogether.
While the Committee acknowledged the “value gap” problem for rightsholders, it stresses that the rights of Internet users should be taken into account as well.
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The Committee finds it questionable, for example, that online services would be required to take down or de-monetize content, without allowing the uploader to respond to allegations of copyright infringement. That appears to refer, indirectly, to the EU’s Article 17.
Instead of making any concrete suggestions, the Committee recommends keeping an eye on how the EU deals with this issue, and draw lessons from this approach. Ultimately, however, any changes should be in the best interests of all Canadians, which is summarized in two recommendations.
“Recommendation 21: That the Government of Canada monitor the implementation, in other jurisdictions, of extended collective licensing as well as legislation making safe harbour exceptions available to online service providers conditional to measures taken against copyright infringement on their platforms.”
“Recommendation 22 That the Government of Canada assert that the content management systems employed by online service providers subject to safe harbour exceptions must reflect the rights of rights-holders and users alike.”
Moving onto enforcement against traditional pirate sites, the Committee reviewed input from various stakeholders who suggested the introduction of a site-blocking regime.
“The fight against piracy should focus more on large-scale, commercial infringers, and less on individual Canadians who may or may not understand that they are engaged in infringement,” the Committee notes, adding that it sees value in pirate site blocking.
To this end, the Telecommunications Act could be revised to streamline the blocking process. However, creating a separate regime that would bypass the courts, as several rightsholders have suggested, goes too far.
Considering the fact that these sorts or reviews are dominated by the monopolists who want absolute and control, with user rights, history, and the public good be damned, this is a remarkably good outcome.
The cost of publishing has fallen off a cliff in the past few decades, and I do not see how the public interest is served by increasing the power of license holders.
The deal is that incentives like copyright are supposed to encourage people to overcome the barriers to publishing, not to create ever expanding opportunities for looting by rentiers.
In this case, the rodent breeders in question are Qualcomm, who has been requiring companies to both buy their (protected by patent) chips, AND to pay licensing fees on those same patents.
I do not understand how patent exhaustion would not prevent this.
It appears that federal judge Lucy Koh has a similar view, and found Qualcomm is guilty of serious anti-trust violations, and issued an injunction preventing them from getting two bites at the Apple:*
Qualcomm abused its monopoly on critical chip patents for decades, a US federal judge in California said on Wednesday in a decision with radical implications for the cellphone market.
In a 233-page opinion [PDF] Judge Lucy Koh came down heavily on the chip designer, saying it had violated antitrust laws and “strangled competition” by insisting that companies license its patents at unreasonable prices before being allowed to purchase its chips. Qualcomm chips are an essential component in modern mobile phones.
Koh also issued a permanent injunction that orders Qualcomm to sell its chips to companies without requiring them to license its patents. She also ordered that the company be monitored by federal regulators for seven years.
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Qualcomm has said it will appeal the decision and seek an immediate stay on the injunction. “We strongly disagree with the judge’s conclusions, her interpretation of the facts and her application of the law,” the company said in a statement. The impact of the decision on Qualcomm’s bottom line was reflected in an instant 12 per cent drop in its share price.
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“Qualcomm’s licensing practices have strangled competition in the CDMA and premium LTE modem chip markets for years, and harmed rivals, OEMs and end consumers in the process,” Judge Koh wrote. “Qualcomm’s licensing practices are an unreasonable restraint of trade.”
Explaining her decision to grant a permanent injunction, she argued “it makes little sense for the court, having found that Qualcomm’s patent licenses are the product of anti-competitive conduct, to leave those licenses in place.” The Snapdragon system-on-chip designer was charging “unreasonably high royalty rates,” Koh said.
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At the core of the case is that fact that Qualcomm possesses a number of “standard essential” patents on chips that are critical for mobile phones to function. It then used that position to force companies to license its patents – demanding many times a fair market rate – before being allowed to buy its chips.
Experts highlighted the fact that Qualcomm would also only license its patents at the device level, as opposed at the component or chip level – which forced companies to pay it more and gave it greater control of the market.
Here’s hoping that this holds up on appeal.
*Pun intended.
The International Code Council is trying to enforce copyright over law2s, which means that people cannot freely read or shore, or(more importantly) understand the law:
UpCodes wants to fix one of the building industry’s biggest headaches by streamlining code compliance. But the Y Combinator-backed startup now faces a copyright lawsuit filed against it by the International Code Council, the nonprofit organization that develops the code used or adopted in building regulations by all 50 states.
The case may have ramifications beyond the building industry, including for compliance technology in other sectors and even individuals who want to reproduce the law. At its core are several important questions: Is it possible to copyright the law or text that carries the weight of law? Because laws and codes are often written by private individuals or groups instead of legislators, what rights do they continue to have over their work? Several relevant cases, including ones involving building codes, have been decided by different circuits in the United States Court of Appeals, which means the UpCodes lawsuit may potentially be heard by the Supreme Court.
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UpCodes’ first product, an online database, gives free access to codes, code updates and local amendments from 32 states, as well as New York City. For building professionals and others who want more advanced search tools and collaboration features, UpCodes sells individual and team subscriptions. In 2018, UpCodes released its second product, called UpCodes AI. Described as a “spellcheck for buildings,” the plug-in scans 3D models created with building information modeling (BIM) data and highlights potential errors in real time.
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It argues that its use of building codes is covered by fair use. The ICC, on the other hand, claims that products like UpCodes’ database harm its ability to make revenue and continue developing code. The ICC wants UpCodes to take down the building code on which it claims copyright, and has also sued for damages.
The law should be freely sharable, period.
If the ICC does not like that, then it should sue the code authorities making copies of its code, which they won’t because then code authorities would find some way to develop common code without out the ICC looting them.
As an aside, this is a potential application for AI, so for example the section of code from the ICC (Chapter 10, Section 1003.2), which reads “The means of egress shall have a ceiling height of not less than 7 feet 6 inches (2286mm),” could be automatically rewritten to read, “A ceiling height of at least 7 feet 6 inches (2286mm) is required.”
The information (2286mm) is not subject to copyright, just the exact expression is. (It’s why, for example, the exact text of a recipe is copyrighted, but instructions that are functionally identical are not.)
I either case, I would like to see Congress change copyright law to explicitly make all regulatory code public domain.
A controversial directive introducing sweeping changes to copyright enforcement across Europe has been approved by the European parliament, despite ferocious campaigning led by Google and internet freedom activists.
The European copyright directive, voted in by 348 MEPs to 274 against, is best known for two provisions it contains: articles 11 and 13, referred to as the “link tax” and “upload filter”, respectively, by opponents.
The latter has been the main focus of campaigning. It requires websites that host user-generated content to take active measures to prevent copyrighted material from being uploaded without permission, under the penalty of being held liable for their users’ copyright infringement.
Article 11, the “link tax”, includes new requirements aimed at making companies like Google pay licensing fees to publications such as newspapers whose work gets aggregated in services like Google News.
Supporters say it prevents multinational companies from freeloading on the work of others without paying for it, but critics argue that it effectively imposes a requirement for paying a fee to link to a website.
Publishers and artists have pushed for the clauses, arguing that they would put an end to widespread infringement on sites such as YouTube and Instagram, while companies including Google and Amazon have attacked the measure as unworkable in practice, and overbearing to the extent that it may force them to close services in Europe.
When the link tax hit Spain, Google stopped carrying Spanish news links, and Spanish media has yet to recover from the loss of viewers.
The automated filters called for in Article 13 don’t work.
They filter out content that is not covered by copyright.
This is going to be a complete clusterf%$#.
It appears that the amazingly high speeds offered by the provider are inducing piracy. (facepalm 1)
The provider that they are accusing of “dangerously fast” internet? Charter Communications.
Charter communications is so bad that they WISH that they had Comcast, a company so reviled that it had to take the alias Xfinity.
The music industry is suing Charter Communications, claiming that the cable Internet provider profits from music piracy by failing to terminate the accounts of subscribers who illegally download copyrighted songs. The lawsuit also complains that Charter helps its subscribers pirate music by selling packages with higher Internet speeds.
While the act of providing higher Internet speeds clearly isn’t a violation of any law, ISPs can be held liable for their users’ copyright infringement if the ISPs repeatedly fail to disconnect repeat infringers.
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The music labels’ complaint also seems to describe the basic acts of providing Internet service and advertising high speeds as nefarious:
Many of Charter’s customers are motivated to subscribe to Charter’s service because it allows them to download music and other copyrighted content—including unauthorized content—as efficiently as possible. Accordingly, in its consumer marketing material, including material directed to Colorado customers, Charter has touted how its service enables subscribers to download and upload large amounts of content at “blazing-fast Internet speeds.” Charter has told existing and prospective customers that its high-speed service enables subscribers to “download just about anything instantly,” and subscribers have the ability to “download 8 songs in 3 seconds.” Charter has further told subscribers that its Internet service “has the speed you need for everything you do online.” In exchange for this service, Charter has charged its customers monthly fees ranging in price based on the speed of service.
That paragraph from the music labels’ complaint merely describes the standard business model of Internet providers. There is nothing illegal about offering higher Internet speeds in exchange for higher prices.
But the labels also allege that Charter’s lax approach to copyright enforcement helped it earn more revenue, in part because piracy supposedly inspired consumers to subscribe to faster Internet tiers.
So basically, they are suing Charter for being an ISP, and they are suing Charter for being too fast.
If I didn’t know the RIAA, I would be convinced that they were punking the judge.
It turns out the scam that was Theranos was heavily supported by what experts would call bullsh%$ patents:
When Patent Office Director Michelle Lee gave that speech, Theranos appeared to be one of the most impressive companies in Silicon Valley. But later that year, the public learned that Holmes hadn’t “proven” anything. Whistleblowers told The Wall Street Journal that Theranos wasn’t even using its own devices for most of its blood testing. Holmes had apparently spent more than a decade building a company based on unrealistic or outright false claims about its revolutionary technology.
For any disaster as large as Theranos, there’s plenty of blame to go around, of course. Both Holmes and former COO Sunny Balwani now face federal fraud charges. Theranos’ star-studded board of directors failed to do adequate oversight. Walgreens ignored warning signs before launching its in-store partnership. Some VCs and journalists were too eager to believe Theranos’ unproven claims.
But the patent system also played an important, and often overlooked, role in the situation. The USPTO gave out patents much too easily, giving Theranos early credibility it didn’t deserve. Theranos then used these patents to attract staff, investors, and business partners. The company would last for 10+ years and burn through half a billion dollars before the truth finally emerged.
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But Holmes found a more receptive audience at the USPTO. She says she spent five straight days at her computer drafting a patent application. The provisional application, filed in September 2003 when Holmes was just 19 years old, describes “medical devices and methods capable of real-time detection of biological activity and the controlled and localized release of appropriate therapeutic agents.” This provisional application would mature into many issued patents. In fact, there are patent applications still being prosecuted that claim priority back to Holmes’ 2003 submission.
But Holmes’ 2003 application was not a “real” invention in any meaningful sense. We know that Theranos spent years and hundreds of millions of dollars trying to develop working diagnostic devices. The tabletop machines Theranos focused on were much less ambitious than Holmes’ original vision of a patch. Indeed, it’s fair to say that Holmes’ first patent application was little more than aspirational science fiction written by an eager undergraduate.
So how did Holmes’ unrealistic application lead to real patents, like US Patent No. 7,291,497? If you look through that patent’s application history, you can see that the examiner did review it closely. The examiner made two non-final rejections and two final rejections before eventually allowing the claims. (At the USPTO, a “final” rejection is not really final). The rejections were based on prior art and other technical grounds. What the examiner did not do, however, was ask whether Holmes’ “invention” actually worked.
Two legal doctrines are relevant here. The “utility” requirement of patent law requires that the invention work. And the “enablement” requirement means that the application has to describe the invention with enough detail to allow a person in the relevant field to build and use it. If the applicant herself can’t build the invention with nearly unlimited time and money, it does not seem like the enablement requirement could possibly be satisfied.
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To answer Professor Grimmelmann’s rhetorical question [What could go wrong with patents being handed out on the “honor system”?] —Theranos is what could go wrong. Holmes’ original patent application became a key part of the company’s mythology. For example, an infamous Fortune article from 2014 reverently tells the story of Holmes staying up late to write her application and suggests that Theranos was founded on that original vision. And if you had visited Theranos’ website in 2014, you would have found an “Our Mission” page that said Holmes left Stanford to “build Theranos around her patents and vision for healthcare.”
Yet more than a decade after Holmes’ first patent application, Theranos had still not managed to build a reliable blood-testing device. By then the USPTO had granted it hundreds of patents. Holmes had been constructing a fantasy world from the minute she started writing her first application, and the agency was perfectly happy to play along.
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Business Insider wrote that if Theranos had come up with a “killer application” for microfluidics, “that may explain its reluctance to show the patented details that make its technology unique.” This sentence shouldn’t make sense, because patents are public by nature. So “patented details” should be public.
The sentence only makes sense when you realize that the patent bargain is utterly broken. The people who work within the patent system realize it. That’s why no one raised red flags when Theranos received hundreds of patents without telling the scientific community how its machines actually worked.
This is important: With a very few national security exceptions, patents MUST be public, and of sufficient detail to allow a, “Person having ordinary skill in the art,” to reproduce the invention.
It is SUPPOSED to be a part of the deal when you award an exclusive license, but the US patent office almost never rejects a patent on being incomprehensible bullsh%$, as it should.
We desperately need to raze the USPTO to the ground, and rebuild it from scratch.