The Prior Art

Desperately Seeking Sunshine in Litigation

I've complained before about the overzealous sealing of documents in federal courts. Last week, U.S. District Judge James Ware helped Facebook keep potentially embarrassing facts out of public sight: he shut reporters out entirely and held a secret hearing. Facebook's lawyer, Orrick, Herrington & Sutcliffe partner Neil Chatterjee, has now sealed 234 documents on behalf of his client, according to CNET blogger Declan McCullagh.

Obviously, litigants don't want true trade secrets thrust into the public—especially defendants who "didn't start it"—but what kind of legal standard do these mass sealings meet?

Recently, I learned about a bill that would start to address this issue — the Sunshine in Litigation Act of 2007, sponsored by Senator Herb Kohl, D-WI.

While playing news catch-up, I saw a note on the Intellectual Property Owners Association website that the group voted earlier this month to oppose it. Don't know exactly why that stance was taken now, since it looks like there's been no movement on the bill since hearings were held in March 2007.

From Kohl's introductory speech on the bill, February 2007:

Surely, there are appropriate uses for such orders, like protecting trade secrets and other truly confidential company information. This legislation makes sure such information is protected. But, protective orders are certainly not supposed to be used for the sole purpose of hiding damaging information from the public to protect a company's reputation or profit margin.

Senator Kohl's main concern is about the secrecy of settlements in product liability cases; but his sentiment about limiting the scope of protective orders sounds like an idea that would "read on" patent lawsuits.

Tomorrow, Judge Ware's calendar includes a motion by CNET to unseal filings and transcripts in the Facebook case. Unfortunately I don't think I'll make it down to San Jose to hear that one but it will be interesting to see what comes out of it.
 

Congress to fix problem with patent judge appointments

The sky is officially not falling. The administrative law judges who decide patent appeals got a lot of attention in May, a few weeks after an Oregon chipmaker, Translogic Technology, had challenged the constitutionality of their appointments.

Translogic wants to rescue its $86 million patent infringement verdict, which was overturned when a patent appeals board found its patent invalid for obviousness. The company petitioned the Supreme Court, waving a paper by noted patent scholar John Duffy that raised the constitutional question.

But the folks I talked to about the issue didn't seem to think it was potentially "cataclysmic," as the New York Times reported in May; I wrote a story saying as much in our last issue, quoting a couple of patent litigators who said that Duffy's discovery, while a real problem, was a technicality that should be easily fixed.

Sure enough, a legislative fix is now on the way, in the form of H.R. 6362, sponsored by the chairman of the House IP committee, Howard Berman, D-CA. The bill will require the Secretary of Commerce to make these appointments in the future, together with the Director of the USPTO. It also creates a retroactive defense to any challenges of the 40-odd judges who were appointed "illegally," IPO Daily News reported on Friday.

Looks like this one can be filed under "no big deal."

 

Lessig and Obama

Last week, Barack Obama did a take-back on his pledge to accept public financing. That will have a big effect on the presidential campaign, of course, but Lawrence Lessig points out that it also will have an effect on the Congressional level, where politicians can't raise scads of small-donor Internet money, as Obama has been able to do on an unprecedented level. "I am worried about a decision that makes public funding for them less likely," he writes. "I wish he had decided differently."

Obama's announcement isn't good news for the new group Lessig is involved in, Change Congress, which wants to diminish the influence of money in politics; one of its central goals is to push politicians to support public financing. (The group works with both political parties.)

Getting pols to take that pledge will surely get tougher, for the time being, but Lessig urges supporters to take a longer view: "This is a hugely complex chess game."

Lessig is a professor at Stanford Law School who has moved his focus away from copyright issues to focus on Change Congress and political reform. But his new book, "Remix," is all about copyright law and culture. It's slated to be published in October but the AP v. blogosphere scandal inspired me to jump the gun by quoting Lessig on the importance of quotations. Quote-on-quote action, we call that.

Lessig opposed to Orphan Works bill

Stanford Law Professor Larry Lessig's blog is on vacation, but he has an op-ed piece in today's New York Times opposing H.R. 5889, the Orphan Works bill that was passed by the House two weeks ago. 

The bill would allow libraries and others to use copyrighted works of indeterminate origin after a "diligent effort" to find who the owner is. But Lessig argues that "diligent" has a slippery definition. "The only beneficiaries would be the new class of 'diligent effort' searchers who would be a drain on library budgets," he writes.

Lessig's solution would be to give creators and automatic copyright for 14 years, and then require registration to receive continued copyright protection. (A 14-year copyright was the term endorsed by the nation's founders.) That would represent a partial rollback of the 1978 Copyright Act, which changed U.S. copyrights from an opt-in to an opt-out system.

Surprisingly (to me, at least) Lessig also says the bill is too easy on potential copyright infringers, who could be excused from "significant damages" if they can prove they made a diligent effort to find the copyright owner.

That puts Prof. Lessig out of step with the Electronic Frontier Foundation—which strongly supports the bill—as well as Public Knowledge, which says that a good Orphan Works bill should put a low damages cap (like $200 low) on payouts to a previously-unknown copyright holder who emerges and claims infringement.

 

House passes PRO-IP and Orphan Works bills

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).

Update 5/28: This post split in two as a housekeeping measure; patent news half is here.