The Prior Art

Copyright and patent news for May 8, 2008: Big content gives an inch, takes a mile on Capitol Hill; and two patent battles at the Federal Circuit

More posts to come on the Patent Troll Tracker saga later today, but a few things other things worth reporting this morning:

• This morning, the House of Representatives passed H.R. 4279, the so-called PRO-IP bill. The entertainment industry is crowing about that one, which will give them a long-sought after prize: a government commitment  to federal copyright cops at the Department of Justice.They’ll not only get a new “Intellectual Property Enforcement Division,” but the bill would carve out money from existing grants to combat computer crime and earmark part of that to police copyright infringement. Basically, the bill is meant to put some FBI muscle behind those FBI warnings on movies and TV shows.

Government lawyers, of course, would be far cheaper copyright cops than litigators at Hollywood law firms like Munger Tolles & Olson or Mitchell Silberberg & Knupp; especially when taxpayers foot the bill. And the industry might eventually get what it really wants—enforcement of criminal penalties.

The bill was sponsored by Detroit Democrat John Conyers. Only 11 Representatives voted against the bill on the floor—seven Republicans and four Democrats, including Silicon Valley Democrat Zoe Lofgren and former Democratic presidential candidate Dennis Kucinich.

• Before they took a mile, they gave an inch: the House IP subcommittee passed H.R. 5889, an “orphan works” bill that removes the massive penalties associated with copyright infringement if the work belongs to a copyright holder who can’t be identified or found. The bill was sponsored by Rep. Howard Berman, known as Hollywood's man in Washington. The bill moves ahead to the full Judiciary Committee. If passed, it goes into effect in 2013. Freedom to use orphan works has long been a cause of library activist like Internet Archive founder Brewster Kahle.

• Speaking of the Internet Archive, it was revealed yesterday that the FBI attempted to strongarm the non-profit into handing over subscriber information through the use of a national security letter. With the help of EFF attorneys, Kahle resisted, giving us the rare opportunity to take a look at what a (redacted) national security letter looks like. The letters have gag orders attached to them, so as EFF attorney Kurt Opsahl says, ""One of the most important victories here is that we can even say this letter was received." Recorder reporter Evan Hill has the Internet Archive story on today's Law.com newswire; EFF has more documents in Internet Archive v Mukasey, 07-6346-CW (N.D. Cal).

• Tafas v. Dudas will be appealed: When the Patent Office tried to put some limits on how many times patent applicants can come back wielding continuation applications, and how many claims can be put in a single patent, a large chunk of the patent bar revolted. Big pharma led a counterstrike, sued to stop the new PTO rules from taking effect, and won. Now the PTO has said they will appeal. Is it true that "USPTO = gluttons for punishment," as one commentator opined at Patently-O?

The battle lines here are similar to the patent reform debate: tech companies say the patents are needed to prevent abuses like the Lemelson “submarine patents,” which remained hidden  for decades and then were used to sue more or less the whole economy.

• Last but certainly not least, the Federal Circuit will hear arguments today in In Re Bilski, a potentially landmark patent case where a small Pennsylvania “financial engineering” company founded by Rand Warsaw and Bernard L. Bilski is trying to get a wide-ranging patent on hedging weather risk. Warsaw and Bilski have been accused of ripping off consumers by state authorities in Minnesota, as I reported last month. Looking forward to hearing the oral arguments.

Bilski amicus briefs are collected at Patently-O.
A critical history of software and business method patents from Mike Masnick at Techdirt.

Highlights from the May issue

The May issue of IP Law & Business is out. The cover story profiles 50 top IP people  under 45, and is available online. (free registration required)

More highlights from the May issue (subscribers only):

• Patent bar to E.D. Tex: enough is enough. AIPLA has filed a brief urging the U.S. Court of Appeals for the 5th Circuit to force East Texas judges to transfer more cases out of the district. It's an effort to head off more heavy-handed venue reform that could come from Congress, but there are already early signs that the local judiciary is thinking of ways to keep the patent docket heavy even if they lose this case, which involves a product liability lawsuit against Volkswagen.

• Keyword-advertising showdown in Manhattan: Google brings in the big guns, hoping for a solid win at the 2nd Circuit to make it clear that selling trademarked keywords is perfectly legal, pro-consumer—and not so different than traditional advertising practices.

J.K. Rowling's lawsuit against Harry Potter web site condemned by fellow author

Earlier this month, billionaire author J.K. Rowling was on the witness stand, alleging copyright infringement against a fan web site she once praised. The Harry Potter Lexicon, a fan site with essays, commentary and explanations, is maintained by Steven Vander Ark. Vander Ark is being represented in the litigation by Anthony Falzone, an attorney who heads up Stanford University's Fair Use Project.

This morning I read sci-fi author Orson Scott Card's well-written and truly damning critique of J.K. Rowling's behavior in this litigation. Card points out that all creative works borrow from what came before them, a point that seems like it should not be difficult to absorb. Mike Masnick at Techdirt excerpts the best parts, and I have reproduced his selection below, but as he says, it's really worth reading the whole thing. 

"This frivolous lawsuit puts at serious risk the entire tradition of commentary on fiction. Any student writing a paper about the Harry Potter books, any scholarly treatise about it, will certainly do everything she's complaining about. Once you publish fiction, Ms. Rowling, anybody is free to write about it, to comment on it, and to quote liberally from it, as long as the source is cited.... She let herself be talked into being outraged over a perfectly normal publishing activity, one that she had actually made use of herself during its web incarnation. Now she is suing somebody who has devoted years to promoting her work and making no money from his efforts -- which actually helped her make some of her bazillions of dollars. Talent does not excuse Rowling's ingratitude, her vanity, her greed, her bullying of the little guy, and her pathetic claims of emotional distress."

Joe Nocera of the New York Times wrote a great column a few months ago about the Harry Potter lawsuit and fair use which suggests that Ms. Rowling may be surrounded by people who misunderstand the role of the press in a free society. He wrote:

During my conversation with her representative, Mr. Blair, he pointed me to Ms. Rowling’s Web site, suggesting that would be the best place to find her response to the RDR Books case and the Harry Potter Lexicon. “You have our permission to quote from her Web site,” he said.

I already have that right, Mr. Blair. But thanks anyway.

SF Chronicle on RIAA lawsuits: swing and a miss.

Today’s San Francisco Chronicle fronts the Business section with a piece on the RIAA lawsuits, focusing on a UC Santa Cruz student who has received one of the many thousands of pre-litigation letters sent out by the record companies.

In these dark days for the newspaper business, lots of editors are spending time figuring out how to capture the attention of younger readers. I can’t understand why they wouldn’t pay more attention to the RIAA litigations over music downloads. It’s an issue every young person in the country is at least aware of, and whatever side you come down on, it certainly strikes me as a novel and newsworthy story. But the newspapers haven’t covered it much, and it’s no wonder they’re having their lunch eaten by online coverage from sites like Wired's Threat Level blog and Ars Technica.

Not coincidentally, the coverage in those outlets is far more skeptical of the RIAA’s actions. The Chron’s writer, Verne Kopytoff, certainly lets the accused student have her say here, but the article is missing an important adjective (or two) in its broad description of peer-to-peer networks. Take this passage (emphasis mine):

The crackdown is part of a broader, yearslong effort by the association to curb online music sharing, a wildly popular practice that allows consumers to download music for free through online services Limewire, Ares and Gnutella. Called peer-to-peer, or P2P, networks, the services allow users to tap into and download songs from other users' collections. Adhering to copyright laws is left up to the users.

Music companies complain that file sharing, which violates copyright laws, is cutting into their profits, and they point to falling album sales as evidence.

All file sharing? Like, the Word documents I send to my editor? It would have been easy to specify that it was illegal file sharing that violates copyright laws. Legal uses of peer-to-peer technology are growing by the day. Consider Vuze, which uses the BitTorrent protocol to move high-definition video quickly and legally over the Internet, including TV programs from CBS-owned Showtime.

As a journalist, I appreciate the bind of having a very short amount of space to explain a complex idea. But this is just too vague; a little specificity--indeed, just one extra word--would have gone a long way. And of course "file sharing" is not synonymous with "music sharing," but, one thing at a time.

What should parents and students do about the dangers of file-sharing? The Chron’s tip box says, “Don’t share you (sic) computer with others."

That's a sad conclusion to reach. But maybe I'm biased. I confess to a long and complicated relationship with tip boxes and the editors who love them.

Having said all that, I give the Chron points credit for at least covering the story, which got over 100 comments despite the fact that it was buried deep in their Web site.

The most interesting fact was this: even though she has not yet been sued, an unnamed collection agency has already called her parents urging them to pay up. Urging someone to accept a particular settlement offer sounds more like legal advice than debt collection, and I wonder how that squares with the federal debt collection law. Allowing someone to try to collect a $3,000 "debt" and then asking for much more at a trial sounds like getting two bites at the apple.

Congress to Universities: Stop the downloads, or else.

Not long after I arrived at the Daily Journal in July, Sen. Harry Reid, D-Nevada, tried to attach an amendment to the higher education funding bill that would have created a top-25 list of the universities with the most illegal downloads. The amendment was quickly ditched under pressure from education lobbyists; opponents complained that this would be a “hit list” authored by entertainment industry trade groups like the MPAA and RIAA.

Now CNET reports that a Congressional committee is set to pass a 747-page bill this afternoon that’s quite a bit kinder to Hollywood, and it looks like it will pass over the universities' objections. Also blogged yesterday at NYT.

Under the bill now being debated, universities would have to make some moves towards tighter control over peer-to-peer networks. Schools would have to support initiatives to help reduce illegal downloading (p. 476), start working on an "alternative" system, and explore “technology-based deterrents.” (p. 412)

Speaking of technology-based deterrents, I reported a few weeks ago that U.S. District Judge Stephen Wilson is mulling over the installation of a copyright filter on the Morpheus software used by StreamCast Networks. (“Shifting the Digital Media Landscape,” Daily Journal 10/25/07) StreamCast is the last defendant in the MGM v. Grokster litigation; the others went out of business after losing at the Supreme Court. MGM Studios Inc. v. Grokster Ltd., 01-8541.

Andrew Bridges, the Winston & Strawn partner who was formerly a lawyer for StreamCast but has since moved on, compared Wilson’s order to the civil-rights busing cases—“The court has scheduled its intention to take over a business,” he said.

Perhaps what we're seeing today is similar copyright activism from another branch of government. In the upper house, Sen. Leahy has revived a bill beloved by the content industries, which would allow federal law enforcement to file civil lawsuits for copyright infringement.

With universities and FBI agents on your side, who needs IP lawyers?

Metaphor watch: 'Pirate' label survives Radiohead

As of last week, half a million users had downloaded Radiohead’s new album over the BitTorrent network, even though it was released as a “pay what you want” album that could be downloaded from the band's web site-- legitimately--for free.

I've noticed that some news outlets have continued to call unauthorized downloads of the new Radiohead album "stolen" or "pirated" even though the band clearly knew they were throwing at least some of their mp3's overboard, so to speak.

"Free? Steal it anyway," quipped Forbes, in a piece that exposed the "hard-core music pirates" who "chose to steal music they could legally download for any price."

Are these still the right terms to use? The copy editor within me (deep, deep within) wonders. Forbes seems to think there's no freebies allowed in capitalism. Like no crying in baseball.

Other news outlets pointed out that much of the "stealing" may have happened when Radiohead's web site was overwhelmed with traffic. It appears that other British musicians will follow Radiohead's lead, hard-core pirates notwithstanding.