Tag: IP

About F%$#ing Time

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The mammoth University of California (UC) system announced today it will stop paying to subscribe to journals published by Elsevier, the world’s largest scientific publisher, headquartered in Amsterdam. Talks to renew a collective contract broke down, the university said, because Elsevier refused to strike a package deal that would provide a break on subscription fees and make all articles published by UC authors immediately free for readers worldwide.

The stand by UC, which followed 8 months of negotiations, could have significant impacts on scientific communication and the direction of the so-called open-access movement, in the United States and beyond. The 10-campus system accounts for nearly 10% of all U.S. publishing output and is among the first U.S. institutions, and by far the largest, to boycott Elsevier over costs. Many administrators and librarians at U.S. universities and elsewhere have complained about what they view as excessively high journal subscription fees charged by commercial publishers.

………

Indeed, UC’s move could ratchet up pressure on additional negotiations facing Elsevier and other commercial publishers; consortia of universities and labs in Germany and Sweden had already reached an impasse last year with Elsevier in their efforts to lower subscription fees.

………

Jeff MacKie-Mason, who heads UC Berkeley’s library and is also co-chair of the negotiation task force, says Elsevier just didn’t move far enough to UC’s position. The publisher’s final offer “was closer to what we wanted in terms of open access” but nevertheless included a price increase, he says.

………

UC published about 50,000 articles last year, and a substantial share, about 10,000, appeared in Elsevier journals. For subscriptions and article fees, UC paid about $11 million, the Los Angeles Times reported recently. (UC says the information is confidential under a nondisclosure agreement.)

………

UC also noted that some of Elsevier’s newer content is already freely available through open-access publishing, open-access repositories, interlibrary loans, and “other legitimate forms of scholarly sharing.”

That last bit is actually the folks at the University of California system in talking in code.

What they are really saying is that, not withstanding the multi-million dollar judgement that Elsevier got against it, the Russian based Sci-Hub has is the future:

Little more than three years ago, Elsevier, one of the world’s largest academic publishers, took Sci-Hub to court.

It was a mismatched battle from the start. With a net income of more than $2.4 billion per year, the publisher could fund a proper case, while its nemesis relied on donations.

Elsevier won the case, including millions of dollars in damages. However, the site remained online and grew bigger. Ironically, the academic publisher itself appears to be one of the main drivers of this growth.
………

Several universities from Germany, Hungary, and Sweden previously let their Elsevier subscriptions expire, which means that tens of thousands of researchers don’t have access to research that is critical to their work.

This is where Sci-Hub comes into play.

The “Pirate Bay of Science” might just quietly play a major role in this conflict. Would the universities cancel their subscriptions so easily if their researchers couldn’t use Sci-Hub to get free copies?

Sci-Hub founder Alexandra Elbakyan has always been forthcoming about her goals. Sci-Hub wants to remove all barriers in the way of science. She also made that crystal clear when we interviewed her back in 2015.

“Everyone should have access to knowledge regardless of their income or affiliation. And that’s absolutely legal. Also, the idea that knowledge can be a private property of some commercial company sounds absolutely weird to me,” she said at the time.

I feel nothing but glee at the misfortunes of Elsivier.

They are a bunch of contemptible parasites.

I Approve of Apple’s Actions

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Even better, it’s offering jobs to employees from those stores at stores across the district boundaries:

Apple has confirmed its plans to close retail stores in the Eastern District of Texas — a move that will allow the company to better protect itself from patent infringement lawsuits, according to Apple news sites 9to5Mac and MacRumors, which broke the news of the stores’ closures. Apple says that the impacted retail employees will be offered new jobs with the company as a result of these changes.

The company will shut down its Apple Willow Bend store in Plano, Texas as well as its Apple Stonebriar store in Frisco, Texas, MacRumors reported, and Apple confirmed. These stores will permanently close up shop on Friday, April 12. Customers in the region will instead be served by a new Apple store located at the Galleria Dallas Shopping Mall, which is expected to open April 13.

Apple did not comment on the stores’ dates of closure or the new store’s opening.

………

The Eastern District of Texas had become a popular place for patent trolls to file their lawsuits – which may be filed where the defendant committed the infringement. However, a more recent Supreme Court ruling has attempted to crack down on the practice. The court ruled that patent holders could no longer choose where to file.

………

The Apple store closures could have had a notable impact on area jobs, had Apple not offered new positions to its retail staff. 

I’m surprised that more businesses have not taken similar actions, given the thoroughly dysfunctional nature of this court district.

Modern Extortion, YouTube Style

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Extortionists are targeting YouTube channels with copyright “strikes” to extort money:

In a terrible abuse of YouTube’s copyright system, a YouTuber is reporting that scammers are using the platform’s “three strike” system for extortion. After filing two false claims against ObbyRaidz, the scammers contacted him demanding cash to avoid a third – and the termination of his channel. Every week, millions of YouTubers upload content for pleasure and indeed profit, hoping to reach a wide audience with their topics of choice.

On occasion, these users run into trouble by using content to which they don’t own the copyrights, such as a music track or similar.

While these complaints can often be dealt with quickly and relatively amicably using YouTube’s Content ID system, allegedly-infringing users can also get a so-called ‘strike’ against their account. Get three of these and a carefully maintained channel, with countless hours of work behind it, can be rendered dead by YouTube.

As reported on many occasions, this system is open to all kinds of abuse but a situation highlighted by a YouTuber called ‘ObbyRaidz’ takes things to a horrible new level.

The YouTuber, who concentrates on Minecraft-related videos, reports that he’s received two bogus strikes on his account. While this is nothing new, it appears the strikes were deliberately malicious with longer-term plan to extort money from him.

………

While people should be protected from this kind of abuse, both from a copyright perspective and the crime of extortion, ObbyRaidz says he’s had zero luck in getting assistance from YouTube.

“It’s very unfortunate and YouTube has not done very much for me. I can’t get in contact with them. One of the appeals got denied,” he explains.

It’s the nature of Google that no matter what happens, you never ever get to contact a human being, so if they take you down, you are basically completely f%$#ed.

Tech support literally does not exist, and this is a core policy of Google, which means that any

As is noted at Naked Capitalism, “If your business depends on a platform, you don’t have a business.”

It Appears That I Was Too Pessimistic

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Good news everyone!


I invented a device that makes you read this in your head using my voice!

I thought that the EU’s disastrous article 13 copyright directive was a done deal.

It appears that I was too pessimistic, which is not something that I say too frequently.

It appears that between strong opposition from those who understand how insane that these proposals, and the looters from the content industries, who thought that they were not insane enough, it looks like the EU is backing off this proposal, for a while, at least:

So, this is certainly unexpected. Just hours after we pointed out that even all of the lobbyists who had written/pushed for Article 13 in the EU Copyright Directive were now abandoning their support for it (basically because the EU was considering making it just slightly less awful), it appears that Monday’s negotiations have been called off entirely:

BREAKING: Council has failed to find an agreement on its #copyright position today. This doesn’t mean that #Article11 and #Article13 are dead, but their adoption has just become a lot less likely. Let’s keep up the pressure now! https://t.co/DEYBhuRyGz #SaveYourInternet

— Julia Reda (@Senficon) January 18, 2019


………

As Reda notes, this does not mean that the Copyright Directive or Article 13 are dead. They could certainly be revived with new negotiations (and that could happen soon). But, it certainly makes the path forward a lot more difficult. Throughout all of this, as we’ve seen in the past, the legacy copyright players plowed forward, accepting no compromise and basically going for broke as fast as they could, in the hopes that no one would stop them. They’ve hit something of a stumbling block here. It won’t stop them from still trying, but for now this is good news. The next step is making sure Article 13 is truly dead and cannot come back. The EU has done a big thing badly in even letting things get this far. Now let’s hope they fix this mess by dumping Articles 11 and 13.

Bird is not the Word

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In the world of DMCA take-down notices, the scooter rental service Bird has jumped the shark, issuing a notice to Cory Doctorow for the mere mention of the fact that there are kits that allow people to replace the circuit boards on seized scooters that are resold to the public.

First, this is completely bogus: Swapping the circuit board does not give unlicensed access to Bird’s software, it removes it, and second:

You Are Pulling This Crap on Cory Doctorow? Are You F%$#Ing Sh%$ting Me?

This has gotta be the stupidest take-down notice ever:

According to a new letter published Friday by an Electronic Frontier Foundation lawyer, the scooter startup Bird significantly overstepped when it recently demanded that Boing Boing remove a post describing personal “conversion kits” that enable the removal of Bird’s proprietary hardware from a seized scooter.

The fracas began on December 8, 2018, when Cory Doctorow, the longtime Boing Boing writer and famed science fiction author, wrote a post entitled: “$30 plug-and-play kit converts a Bird scooter into a ‘personal scooter.’”

In it, Doctorow described the existence of kits that purport to allow someone to legally purchase an impounded Bird scooter and then alter it for personal use.

Bird did not take kindly to this post. On December 20, the company demanded that Boing Boing remove it. Bird’s lawyer, Linda Kwak, claimed that, simply by writing about the existence of these kits, Boing Boing violated the Digital Millennium Copyright Act.

………

On Friday, EFF lawyer Kit Walsh, who represents Doctorow in this dustup, wrote to Kwak that Doctorow “has no obligation to, and will not, comply with your request to remove this article.”

………

It appears that the current exemption to the Section 1201 law that normally prohibits circumvention of digital locks is protected under the section that specifically allows for “Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle… when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle function.”

And also, Cory F%$#ing Doctorow?

This man is the EFF’s public face on fighting digital rights management, and has arguably been the most prominent opponent of DRM in the computer community world wide, and you serve up this sh%$ sandwich?

What the F%$# is wrong with you?

Like All Anti-Piracy Lists: FAIL

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The EU is releasing a list of infringing sites, and the surprising thing is not that it is full of non-infringing sites, they all do, but that it includes Cloudflare, which is a close to a core technology for the whole internet as any single company gets these days:

In mid-January, the EU is hoping to finalize the EU Copyright Directive, including Article 13, which will effectively create mandatory copyright filters for many internet websites (while, laughably, insisting it creates no such burden — but leaving no other option for most sites). One of the key arguments being made by supporters of Article 13 is that it’s crazy to think that this law will be used to block legitimate content. This is pretty silly, considering how frequently we write about bogus DMCA takedowns. As if trying to prove just how bad they are at properly classifying infringing content, the EU recently released its “Counterfeit and Piracy Watch List”, which is a sort of EU version of the USTR’s “notorious markets” list. That list has been widely mocked for basically declaring any site that Hollywood doesn’t like “notorious”, even if no court has ever ruled that it’s breaking the law.

It would appear that the EU list has the same sort of problem. For example among the sites listed in the EU report is Cloudflare, a platform used by tons of internet companies (including Techdirt) as a CDN or to protect against DoS attacks (among other things). Cloudflare is simply a tool — like a phone line — that tons of internet companies use. If some of them are doing things that are against the law, that should be on those sites, not Cloudflare. Unfortunately, the EU doesn’t seem to care.

CloudFlare is a US based company, which provides hosting service combined with other services, including CDN services and distributed domain name server (DNS) services. According to the creative industries (film, music, book publishers, etc.) and other organisations, CloudFlare is used by approximately 40% of the pirate websites in the world. It operates as a front host between the user and the website’s back host, routing and filtering all content through its network of servers. Out of the top 500 infringing domains based on global Alexa rankings, 62% (311) are using CloudFlare’s services, according to stakeholders. A sample list of 6,337 infringing domain names presented by the film industry showed over 30% (2,119) using CloudFlare’s services.

 This is like claiming Verizon is a dope dealer because dope dealers use cell phones.

You Gotta be F%$#ing Kidding

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Quoting Palmer from The Thing

Someone actually tried to copyright the taste of a specific of cheese, and it actually made to the Court of Justice of the European Union.

IP claims are completely out of hand:

A Dutch cheese company tried to claim that it had a monopoly on the taste of a cheese spread. The Court of Justice of the European Union weighed arguments from two competing food producers, and decided on Tuesday that a taste cannot be copyrighted.

Taste is “an idea,” rather than an “expression of an original intellectual creation,” the court ruled. And something that cannot be defined precisely cannot be copyrighted, it ruled.

The case was brought in the Netherlands, but it had been referred to the European court to make a ruling that would apply across the bloc. Levola Hengelo, a Dutch food producer, had sued Smilde Foods, another Dutch manufacturer, for infringing its copyright over the taste of a cheese spread.

The Levola product, known as Heks’nkaas, or Witches Cheese, is made of cream cheese and herbs and vegetables including parsley, leek and garlic. Smilde’s herbed cheese dip, which contained many of the same ingredients, was called Witte Wievenkaas, a name that also makes reference to witches. It is now sold as Wilde Wietze Dip.

Levola argued that the taste of food, like literary, scientific or artistic works, can be copyrighted. The company cited a 2006 case involving Lancôme, the cosmetics company, that had accepted in principle that the scent of a perfume could be eligible for copyright protection.

………

Well, there was no cheese tasting. But it agreed with Smilde that the taste of the cheese could not be defined with enough precision and objectivity to make it clear to other companies where they might be overstepping the mark.

………

To be protected by copyright, a work must be an “expression” of an original intellectual creation.

“Copyright isn’t supposed to be used to stop the spread and use of ideas,” said Joshua Marshall, an intellectual property lawyer at the European law firm Fieldfisher. “The taste of a leek-and-garlic cheese is really an idea.”

Copyright is supposed to “promote the progress of science and useful arts,” not to be used as an anti-competitive weapon to be used against competitors.

IP naturally has an anti-competitive effect, but that is a cost of the promotion of creativity, not a benefit.

Some Sanity from the Library of Congress

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The Library of Congress regulates how people interact with copyrighted digital equipment, and they just ruled that you have a right to break the manufacturers’ digital rights management (DRM) in order to repair your device:

The Librarian of Congress and US Copyright Office just proposed new rules that will give consumers and independent repair experts wide latitude to legally hack embedded software on their devices in order to repair or maintain them. This exemption to copyright law will apply to smartphones, tractors, cars, smart home appliances, and many other devices.

The move is a landmark win for the “right to repair” movement; essentially, the federal government has ruled that consumers and repair professionals have the right to legally hack the firmware of “lawfully acquired” devices for the “maintenance” and “repair” of that device. Previously, it was legal to hack tractor firmware for the purposes of repair; it is now legal to hack many consumer electronics.

Specifically, it allows breaking digital rights management (DRM) and embedded software locks for “the maintenance of a device or system … in order to make it work in accordance with its original specifications” or for “the repair of a device or system … to a state of working in accordance with its original specifications.”

The Digital Millennium Copyright Act (DMCA) has always been a horrible law, but no where is it worse in cases where it allows manufacturers to lock people out from repairing items that they bought and paid for.

Of Course, It’s Georgia

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Phew. The 11th Circuit appeals court has just overturned a lower court ruling and said that Georgia’s laws, including annotations, are not covered by copyright, and it is not infringing to post them online. This is big, and a huge win for online information activist Carl Malamud whose Public.Resource.org was the unfortunate defendant in a fight to make sure people actually understood the laws that ruled them. The details here matter, so let’s dig in:

For the past few years, we’ve been covering the fairly insane situation down in Georgia, where they insist that the state’s annotated laws are covered by copyright. This is not quite the same thing as saying the laws themselves are covered by copyright. Everyone here seems to recognize that Georgia’s laws are not covered by copyright. But here’s where the problem comes in. The state of Georgia contracts out with a private company, LexisNexis, to “annotate” the law basically giving more context, and discussing the case law interpretations of the official code. The deal with the state is that LexisNexis then transfers whatever copyright it gets from the creation of the annotations back to the state. Finally, the only “official” version of Georgia’s state laws is in the “annotated” version. If you want to look up the official law of Georgia you are sent to the “Official Code of Georgia Annotated” (OCGA), and it’s hosted by LexisNexis, and it has all sorts of restrictive terms of service on top of it. Indeed, every new law in Georgia literally says that it will amend “the Official Code of Georgia Annotated,” which certainly suggests that the OCGA — all of it — is the law in Georgia. And the state insisted that part of the law was covered by copyright.

Malamud found this obviously troubling, believing that the law must be freely accessible to anyone in order to be valid. The state of Georgia threatened him and then sued him claiming that reposting the OCGA in a more accessible fashion was copyright infringement. The district court not only found that the annotations (even if part of the official law) could be covered by copyright but further that it was not fair use for Malamud to post them online. This was a horrifying decision.

And, it’s also no longer a valid one.

The appeals court has put together a thorough ruling rebuking the lower court’s analysis, and noting that the OCGA is not subject to copyright at all. The court admits the annotations by a private company make this more complicated than the general question of whether or not laws are covered by copyright, but notes that since this is so closely tied to the law, and directed by state officials, it seems clear that the annotations cannot be covered by copyright:

We really need to reign in the IP zealots.

They have devolved into parasites.

Copyright Trolling, Sony Edition

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Sony Music Entertainment has been forced to abandon its claim that it owned 47 seconds of video of musician James Rhodes using his own piano to play music written by Johann Sebastian Bach.

Last week, Rhodes recorded a short video of himself playing a portion of Bach’s first Partita and posted it to Facebook. Bach died in 1750, so the music is obviously in the public domain. But that didn’t stop Sony from claiming the rights to the audio in Partita’s video.

“Your video matches 47 seconds of audio owned by Sony Music Entertainment,” said a notice Rhodes received on Facebook. Facebook responded by muting the audio in Rhodes’ video. Remarkably, when Rhodes disputed Sony’s claim, Sony stuck to its guns and denied the appeal. As far as we know, Sony hasn’t commented publicly on the dispute or explained why it continued to claim Rhodes’ music.

But whereas Facebook’s formal appeals process didn’t work for Rhodes, public shaming seems to have done the trick. Rhodes’ tweet on the topic got more than 2,000 retweets, and Rhodes also emailed senior Sony Music executives about the issue.

As one commenter noted:

Guys, let’s be reasonable here.

Without strong copyright enforcement, composers like Bach will have no incentive to produce new music.

Sony is just ensuring that Bach has the financial freedom to release his next album. Really they’re doing you a favor.

Amazon is Evil, Part Many

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Amazon applied for a patent that would literally put its workers in cages.

Following a mild media sh%$ storm, they are now saying that this was, “A bad idea,” and that they would never do this.

Yeah, right:

No one ever said working at Amazon was a relaxed experience. The e-commerce giant is well known for its taxing workplace culture, but putting warehouse workers in cages seems a bit extreme, even for Amazon.

 But a patent, granted by the U.S. Patent and Trademark Office to Amazon in 2016, would make that dystopian cubicle a reality. The patent shows a cage built for a human working in robot work zones, a small work station atop a robot trolley like the kind already used in Amazon warehouses to move shelving. The patent was highlighted in a study by two artificial intelligence (AI) researchers, New York University distinguished research professor Kate Crawford and director of the research lab Share Foundation Vladan Joler. In their analysis, Crawford and Joler noted “an extraordinary illustration of worker alienation, a stark moment in the relationship between humans and machines.”

 When the study was reported by news outlets including The Seattle Times, there was (predictable) blowback on social media. Amazon senior vice president of operations Dave Clark even weighed in on Twitter, explaining that even “bad” ideas are submitted for patents, and that the company has no plans to implement the cages.

Yeah, right.

They are saying, “Never,” but I am hearing, “And I would have gotten away with it too, if it weren’t for you meddling kids!”

Well, This Sucks

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The EU just passed its new Copyright Directive, and it is a complete horror show.

Cory Docterow has the skinny on this:

Today, in a vote that split almost every major EU party, Members of the European Parliament adopted every terrible proposal in the new Copyright Directive and rejected every good one, setting the stage for mass, automated surveillance and arbitrary censorship of the internet: text messages like tweets and Facebook updates; photos; videos; audio; software code — any and all media that can be copyrighted.

Three proposals passed the European Parliament, each of them catastrophic for free expression, privacy, and the arts:

1. Article 13: the Copyright Filters. All but the smallest platforms will have to defensively adopt copyright filters that examine everything you post and censor anything judged to be a copyright infringement.

2. Article 11: Linking to the news using more than one word from the article is prohibited unless you’re using a service that bought a license from the news site you want to link to. News sites can charge anything they want for the right to quote them or refuse to sell altogether, effectively giving them the right to choose who can criticise them. Member states are permitted, but not required, to create exceptions and limitations to reduce the harm done by this new right.

3. Article 12a: No posting your own photos or videos of sports matches. Only the “organisers” of sports matches will have the right to publicly post any kind of record of the match. No posting your selfies, or short videos of exciting plays. You are the audience, your job is to sit where you’re told, passively watch the game and go home.

At the same time, the EU rejected even the most modest proposals to make copyright suited to the twenty-first century:

1. No “freedom of panorama.” When we take photos or videos in public spaces, we’re apt to incidentally capture copyrighted works: from stock art in ads on the sides of buses to t-shirts worn by protestors, to building facades claimed by architects as their copyright. The EU rejected a proposal that would make it legal Europe-wide to photograph street scenes without worrying about infringing the copyright of objects in the background.

2. No “user-generated content” exemption, which would have made EU states carve out an exception to copyright for using excerpts from works for “criticism, review, illustration, caricature, parody or pastiche.”

………

The mandate to filter the Internet puts a floor on how small the pieces can be when antitrust regulators want to break up the big platforms: only the largest companies can afford to police the whole net for infringement, so the largest companies can’t be made much smaller. The latest version of the Directive has exemptions for smaller companies, but they will have to stay small or constantly anticipate the day that they will have to take the leap to being copyright police. Today, the EU voted to increase the consolidation in the tech sector, and to make it vastly more difficult to function as an independent creator. We’re seeing two major industries, both with competitiveness problems, negotiate for a deal that works for them, but will decrease competition for the independent creator caught in the middle. What we needed were solutions to tackle the consolidation of both the tech and the creative industries: instead we got a compromise that works for them, but shuts out everyone else.

This is a complete sh%$ show, and it’s driven by the coverage by newspapers in the EU who believe that the underpants gnomes will make them a profit if this abomination gets passed.

We Could Power All of Prague from the Rotational Momentum of Kafka’s Corpse

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A MEP wrote about how automated copyright tools would lead to removal and delisting by search engines and an automated filter had her article delisted:

Last week, Tim Cushing had a post about yet another out of control automated DMCA notifier, sending a ton of bogus notices to Google (most of which Google removed from its search engine index, since the sender, “Topple Track” from Symphonic Distribution was a part of Google’s “Trusted Copyright Program,” giving those notices more weight). The post listed many of the perfectly legitimate content that got removed from Google’s index because of that rogue automated filter, including an EFF page about a lawsuit, the official (authorized) pages of Beyonce and Bruno Mars, and a blog post about a lawsuit by Professor Eric Goldman.

But, seeing as we’re getting towards September when the EU Parliament will again be voting on the big Copyright Directive proposal there, including Article 13, which will require mandatory filters or other automated tools for preventing copyright infringement, I thought it was important to do a separate post calling out one of the other pages taken down by Symphonic Distribution’s out of control Topple Track. And that was that it got Google to de-index an article by Julia Reda, a member of the EU Parliament who has been leading the charge against the problematic provisions in the Copyright Directive proposal.

Specifically — and it would be hard to make this up if we tried — Topple Track’s automated filter got Google to de-index this blog post by Reda, in which she details the problems in Article 13 and how it will create mandatory censorship machines, that would likely lead to massive internet censorship of perfectly legitimate content. Let’s repeat that so it can sink in. An automated filter helped take down an article by a Member of the EU Parliament, explaining how a (still being debated) proposal would create automated filtering systems that would take down all sorts of legitimate content

Calling this Kafkaesque is a serious understatement.

What Palmer Said*

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In response to a lawsuit alleging misuse of copyrighted material in their Michael Jackson biopic, Disney is now claiming that it is. “Taking a stand against overzealous copyright holders.

This is like Nathan Myhrvold complaining about patent trolls:

The entertainment giant and its broadcast subsidiary ABC submit its response in court to a copyright lawsuit over ‘The Last Days of Michael Jackson.’

Disney won’t be shamed out of standing its ground in the face of “overzealous copyright holders” like the Michael Jackson Estate. On Monday, the entertainment giant and its broadcast subsidiary ABC filed an answer to the copyright lawsuit over the two-hour documentary The Last Days of Michael Jackson, which used excerpts from This Is It and other works including music videos for “Thriller” and “Black or White.”

The lawsuit came in California federal court in May and pointed to just how seriously Disney takes its own intellectual property. The complaint gave examples: Disney threatened to sue childcare centers for having pictures of Mickey Mouse and Donald Duck on the wall; Disney once sued a couple on public assistance for $1 million when they appeared at children’s parties dressed as an orange tiger and a blue donkey; Disney sent takedown notices to social media services upon users posting photographs of their new Star Wars toys; and so forth.

In fact, Disney’s response to the Michael Jackson lawsuit comes just days after it suffered a setback in a lawsuit against a business that sends individuals in costumes to kids’ birthday parties.

No matter and forget any sense of irony.

Answering claims over illicit use of Michael Jackson rights, Disney states, “This case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organizations to use limited excerpts of copyrighted works — here, in most instances well less than 1% of the works — for the purpose of reporting on, commenting on, teaching about, and criticizing well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders.”

Seriously, the level of hypocrisy here is so dense that there is a non-trivial risk of a black hole forming.

*In John Carpenter’s movie The Thing, when Norris’ head sprouted legs and began to walk away, Palmer (no first name) observed, “You gotta be f%$#ing kidding.”

Court Rules against Dressing up as an Indian

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In a unanimous decision, an appellate court has resoundingly rejected the legal claim that sovereign immunity, as argued by a Native American tribe, can act as a shield for a patent review process.

On July 20, the United States Court of Appeals for the Federal Circuit found in a 3-0 decision that the inter partes review (IPR) process is closer to an “agency enforcement action”—like a complaint brought by the Federal Trade Commission or the Federal Communications Commission—than a regular lawsuit.

IPR is a process that allows anyone to challenge a patent’s validity at the United States Patent and Trademark Office—it was used famously in 2017 to reject the “podcasting patent.”

“This win is a victory in our ongoing efforts to stop patent abuses by brand companies and to help drive access to more affordable medicine,” Mylan CEO Heather Bresch said in a statement on July 20.

“Today’s ruling reaffirms that Allergan’s attempt to leverage the Saint Regis Mohawk Tribe for patent protection represents another inappropriate tactic to delay the availability of generic medicines for patients who need them.”
This case, Saint Regis Mohawk Tribe, Allergan Inc. v. Mylan Pharmaceuticals et al, really began in September 2015. That was when Allergan, a pharma company, sued rival Mylan, claiming that Mylan’s generics infringed on Allergan’s dry eye treatment known as Restasis.

………

By 2016, Mylan initiated the IPR. But Allergan, in an attempt to stave it off, struck a strange deal, transferring ownership of the six Restasis-related patents to the Saint Regis Mohawk Tribe, based in Upstate New York, near the Canadian border.

As part of that deal, Allergan paid $13.75 million to the tribe, with a promise of $15 million in annual payments—if the patents were upheld, that is. (According to The New Yorker, Allergan stood to make $1 billion annually for its monopoly product.)

………

The Mohawk Tribe attempted to end the IPR, citing sovereign immunity, which was denied. The tribe struck at least one other similar deal with a firm known as SRC Labs, which sued Amazon and Microsoft.

Due to the July 20 ruling, Mylan’s IPR process will now go forward.

The inter partes review (IPR) process is an administrative review of patents that is faster, cheaper, and far less amenable to lame-ass patents than the federal courts.  (Particularly those federal courts in the Eastern District of Texas.)

This is yet another blow against the business of patent trolling.

They Got a Patent for What?

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Yes, in 2000, some troll secured a patent on the ability to pause a recorded lesson, because ……… computers!!! gross incompetence.

This is profoundly dysfunctional:

The Electronic Frontier Foundation has stepped up to represent a small, independent online language teacher who has been threatened with a lawsuit by a British publisher that claims the teacher is infringing an American patent issued back in 2000 for a particular audio-based teaching technique.

What’s the secret sauce? Amazingly, the use of a pause button to temporarily stop the lesson.

………

A Virginia attorney, Christopher Foley, representing publisher Hodder & Stoughton, recently demanded that Eleftheriou halt any publication of audio lessons in the United States or face a potential lawsuit.

Hodder & Stoughton claims to represent the “exclusive licensee” of a patent originally granted to a now-deceased French teacher, Michel Thomas. The Polish immigrant, who lived for decades in the United States, claimed that he could teach anyone the basics of a European language that had commonalities with English to anyone in “a matter of days or a week.” He attracted numerous celebrity clients, including Woody Allen and Bill Murray.

Eleftheriou said that he was not “reproducing” Thomas’ method, adding that “nothing else [is] as well thought-out” as Eleftheriou’s own technique.

But however effective Thomas’ teaching technique may or may not have been, it was not patentable, according to a scathing letter sent on July 2, 2018 by Daniel Nazer, an EFF attorney who is representing Eleftheriou.

Seriously, whoever approved this patent should be fired.

This wasn’t even a pre Alice software patent.  This was just completely negligent.

A Brief Respite of Copyright Sanity

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This is not a common thing, but the rules proposed were awful, requiring fees to be paid for linking, and prohibiting the use of snippets:

A controversial overhaul of the EU’s copyright law that sparked a fierce debate between internet giants and content creators has been rejected.

The proposed rules would have put more responsibility on websites to check for copyright infringements, and forced platforms to pay for linking to news.

A slew of high-profile music stars had backed the change, arguing that websites had exploited their content.

These sites cannot use their content without permission from the designated license holders for this content, in this case the record labels, who, as always, have screwed the artists.

That is not a problem with Spotify, that is a problem with your agents.

But opponents said the rules would stifle internet freedom and creativity.

The move was intended to bring the EU’s copyright laws in line with the digital age, but led to protests from websites and much debate before it was rejected by a margin of 318-278 in the European Parliament on Thursday.

What were they voting for?

The proposed legislation – known as the Copyright Directive – was an attempt by the EU to modernise its copyright laws, but it contained two highly-contested parts.

The first of these, Article 11, was intended to protect newspapers and other outlets from internet giants like Google and Facebook using their material without payment.

But it was branded a “link tax” by opponents who feared it could lead to problems with sentence fragments being used to link to other news outlets (like this).

Article 13 was the other controversial part. It put a greater responsibility on websites to enforce copyright laws, and would have meant that any online platform that allowed users to post text, images, sounds or code would need a way to assess and filter content.

The most common way to do this is by using an automated copyright system, but they are expensive. The one YouTube uses cost $60m (£53m), so critics were worried that similar filters would need to be introduced to every website if Article 13 became law.

There were also concerns that these copyright filters could effectively ban things like memes and remixes which use some copyrighted material.

There will be another bite at the apple on this in a few months though.

I expect them to move a few commas, and lobby the sh%$ out of MEPs to switch their votes.

This law is bad, and not just on its own merit.

This law is bad because these sort of expansions of IP are misused and abused to extract even greater rents.

If you were to have told a Congressman in 1998 that the law would be used to prevent people from refilling ink cartridges, or using universal garage door openers, they would have laughed in your face, but both of those things happened within 2 years of adoption of the law.

Whatever form this law takes, its will be worse than its most ardent opponents predict, because that is where the money is.

It’s Called Monopoly Rents and Oligopolies

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The good folks at the New York Times have noted that healthcare costs in the US started rising sharply relative to other developed nations around 1980.

Ignoring the obvious error (Dean Baker notes that the increase in US medical inflation started in the 1970s, not the 1980s) the history is clear: this began with a major push toward deregulation that began under the Carter administration, along with largely successful efforts to privatize what had been publicly owned research and development.

The walk-back from meaningful antitrust enforcement, and to deregulate many aspects of the market economy, along with efforts to privatize federally funded research progressed rapidly during the late 1970s, culminating with the disastrous Bayh-Dole act, which had the effect of handing government research to private entities.

Later, under the Reagan administration, the break-neck pace of these changes further accelerated.

It became the wild west, and a very opaque one at that, and to paraphrase former banking regulator Bill Black, if looting is possible, it has already happened.

What’s more the proceeds of the looting are almost immediately reinvested in rent seeking activities like campaign donations, to embrace and extend the regime.

Rinse, lather, repeat.

I Don’t Often Express Admiration for the Indian Justice System, But………

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The recent ruling by the Indian Supreme Court saying that seeds cannot be patented is good for the Indian people, and not just because it is bad for Monsanto:

In an another legal blow to Monsanto, India’s Supreme Court on Monday refused to stay the Delhi High Court’s ruling that the seed giant cannot claim patents for Bollgard and Bollgard II, its genetically modified cotton seeds, in the country.

Monsanto’s chief technology officer Robert Fraley, who just announced that he and other top executives are stepping down from the company after Bayer AG‘s multi-billion dollar takeover closes, lamented the news.

………

Monsanto first introduced its GM-technology in India in 1995. Today, more than 90 percent of the country’s cotton crop is genetically modified. These crops have been inserted with a pest-resistant toxin called Bacillus thuringiensis, or Bt.

Citing India’s Patents Act of 1970, the Delhi High Court ruled last month that plant varieties and seeds cannot be patented, thereby rejecting Monsanto’s attempt to block its Indian licensee, Nuziveedu Seeds Ltd., from selling the seeds.

Because of the ruling, Monsanto’s claims against Nuziveedu for unpaid royalties have been waived, as its patents are now invalid under Indian law. Royalties will now be decided by the government.

Indian environmentalist Vandana Shiva, who is known for her fierce activism against corporate patents on seeds, called the top court’s move a “major victory” that opens the door “to make Monsanto pay for trapping farmers in debt by extracting illegal royalties on BT cotton.”

Of the various extensions of IP, none is more concerning, and more unethical, than the expansion of patents to abrogate the rights for farmers to replant their own seeds.

Patent Trolls Lose Before Supreme Court

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The 2012 America Invents Act created the inter partes review process which allowed for challenges to patents in an administrative, rather than a lawsuit, making challenges to patents faster and cheaper.

The patent trolls took it to court, saying that Congress could not delegate the court’s patent authority in this way, and the Supreme Court just shot them down in well-deserved flames:

The Supreme Court on Tuesday upheld the constitutionality of a process for challenging low-quality patents. Since its creation in 2011, this “inter partes review” (IPR) process has dramatically lowered the cost of defending against frivolous patent litigation.

The process allows an executive branch agency—not the courts—to revoke a patent after it has been granted. Critics claim that runs afoul of the Constitution’s requirement that only the courts can deprive people of their property.

But the Supreme Court didn’t buy it. In a 7-2 decision written by Justice Clarence Thomas, the nation’s highest court ruled that patent rights were fundamentally a government-granted privilege that could properly come with strings attached. One such condition is the risk that the patent office might change its mind and invalidate a patent that it had previously approved.

The ruling preserves one of defendants’ most potent weapons against patent trolls. Challenging a patent in court can cost millions of dollars. As a result, prior to 2011, it often made sense for defendants to settle a patent case even if they believed that the patent wouldn’t stand up in court.

But then Congress passed the America Invents Act, which created a new administrative process called inter partes review. That process cuts the cost of challenging a patent down to the low six figures. It has shifted the playing field for patent litigation, allowing the targets of frivolous patent lawsuits to fight back without going broke in the process. The new Supreme Court ruling puts that process on a firm constitutional footing, which should make life difficult for patent trolls for years to come.

………

But Oil States sued, arguing that the Constitution requires an IPR-like process to occur in the judicial branch—not in an executive branch agency like the patent office. Executive branch agencies do not have the independence of judges, and they don’t necessarily offer all of the due-process protections provided to litigants by the judicial system.

While the argument was officially over the difference between the executive and judicial branch, this was really a dispute about the nature of patent rights. Are patents fundamentally a government-granted monopoly (a “public right,” in legal jargon), or are they a form of private property akin to a home or car?

The Constitution provides robust legal protections, including a guarantee of due process through the judicial branch, to private property: a law allowing a federal agency to take someone’s home or business without the approval of the courts would be unconstitutional.

But it doesn’t make sense to extend that same level of protection to government-granted monopolies. After all, the public interest may require curtailing or eliminating these kinds of monopolies in the future.

“Congress can grant a franchise that permits a company to erect a toll bridge but qualify the grant by reserving its authority to revoke or amend the franchise,” the court’s majority wrote, citing a 101-year-old precedent on the topic. “The same is true for franchises that permit companies to build railroads or telegraph lines.”

This is why the case is important: It is a refutation of the entire idea of “Intellectual Property”, that has come to the fore recently:

None of these rulings was explicitly about whether patents are monopolies or property rights. But the question implicitly shapes how courts think about these kinds of questions. Monopolies are generally viewed with skepticism; property rights are not. “Allowing petitioners to patent risk hedging would preempt use of this approach in all fields and would effectively grant a monopoly over an abstract idea,” the Supreme Court wrote in its 2010 ruling on patenting abstract ideas.

Tuesday’s ruling is important in its own right, as it preserves a process that has had a real impact on the patent-litigation problem. But it’s also a barometer of how the Supreme Court’s justices are thinking about the patent system more generally. The fact that seven of the nine justices continue to view patents as a government-granted franchise, not a form of property rights, suggests that the high court’s more-than-decade-long smackdown of pro-patent jurisprudence could continue for years to come.

The Federal Circuit, aka the “Patent Court” has been mishandling, and expanding, patents for years, and the Supreme Court has been pushing back for about a decade against the excesses of the Federal Circuit.

This one is significant, because it throws a brick through the “Intellectual Property” window.