Why I'm Rooting for Microsoft

It will not have escaped your notice that the patent system has been the subject of several posts on this blog, or that the general tenor is pretty simple: it's broken, and nowhere more evidently so than for software. Anyone can see that, but what is much harder is seeing how to fix it given the huge vested interests at work here.

On Open Enterprise blog.

Submarines Ahoy

I've not been following the details of the US Patent Reform Act, but this sounds worrying:

The Electronic Frontier Foundation supports the Patent Reform Act of 2007, but the group does worry that the law in its present state could reform the EFF's Patent Busting Project right out of existence.

The EFF has sent a letter to Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) outlining its problems with the Patent Reform Act (the bill has already passed the House). Under the bill's current language, patents will be subject to a post-grant review process, but the current reexamination system would be scrapped.

The post-grant review system would allow nonprofits like the EFF to challenge bum patents for only 12 months after they are issued. In the EFF's view, this isn't nearly enough time to become aware of dodgy patents and the impact they will have on the tech community at large. The group would prefer to retain the current reexamination system and simply add post-grant review to the process.

In particular, this would seem to encourage "submarine patents" - those which aren't used for a while, and then sprung on an unsuspecting world. By which time, of course, it would be too late to challenge.

As the EFF points out:

The public has a right to defend itself against patents that should never have been granted, and organizations like EFF exist to assist in this process. Reexamination proceedings are essential for us to continue this work.

Bring on the Fair Use Dolphins

A couple of weeks ago I wrote about the unsatisfactory UGC Principles put together by media companies, particularly with regard to the exiguous recognition of fair use. Well, good news, chaps, those nice people at the EFF have put together a document *totally* about Fair Use Principles for User Generated Video Content:

Online video hosting services like YouTube are ushering in a new era of free expression online. By providing a home for “user-generated content” (UGC) on the Internet, these services enable creators to reach a global audience without having to depend on traditional intermediaries like television networks and movie studios. The result has been an explosion of creativity by ordinary people, who have enthusiastically embraced the opportunities created by these new technologies to express themselves in a remarkable variety of ways.

The life blood of much of this new creativity is fair use, the copyright doctrine that permits unauthorized uses of copyrighted material for transformative purposes. Creators naturally quote from and build upon the media that makes up our culture, yielding new works that comment on, parody, satirize, criticize, and pay tribute to the expressive works that have come before. These forms of free expression are among those protected by the fair use doctrine.

New video hosting services can also be abused, however. Copyright owners are legitimately concerned that a substantial number works posted to some UGC video sites are simply unauthorized, verbatim copies of their works. Some of these rightsholders have sued service providers, and many utilize the “notice-and-takedown” provisions of the Digital Millennium Copyright Act (DMCA) to remove videos that they believe are infringing. At the same time, a broad consensus has emerged among major copyright owners that fair use must be accommodated even as steps are taken to address copyright infringement.

All good stuff, but the best bit is the following principle:

Informal “Dolphin Hotline”: Every system makes mistakes, and when fair use “dolphins” are caught in a net intended for infringing “tuna,” an escape mechanism must be available to them.

I don't think we're in Kansas any more.

Confused Over Novell? You Will Be

This is getting seriously hard to parse:

In a surprise announcement earlier today at the Open Source Business Conference, Novell and the Electronic Frontier Foundation said that Novell would be contributing to the EFF's Patent Busting project. In addition, the two entities will work for legislation and policies that will "promote innovation," specifically targeting the World Intellectual Property Organization.

IPRED2: Last Chance to Act

If you are a citizen of the European Union:

A coalition of groups representing librarians, consumers' and innovators have come together to support of a series of amendments that would fix the worst parts of the proposed Directive on Criminal Measures aimed at ensuring the enforcement of Intellectual Property Rights (IPRED2).

If you live in the EU, contact your MEPs and ask them to support these amendments at the plenary vote in European Parliament on April 24-26, 2007.

Quick!

Who Ya Gonna Call? Patentbusters!

This blog has lamented often and loudly about the idiotic patents being granted, principally in the US (but with the EU trying very hard to follow down the same pitiful path). The question is, what can we do about it? Or, to put it another way, who are we going to call? - Patentbusters, of course, in the form of the EFF's Patent Busting project, which seeks to find prior art to invalidate bogus patent claims.

Mind you, with some of the top 10 most wanted, you have to ask why even this is necessary, so blindingly obvious are they. Take ClearChannel, for example, which somehow has a patent for

A system and method for recording live performances (e.g. music concerts), editing them into tracks during the performance, and recording them to media (e.g. CDs) within minutes of the performance ending.

Well, that must have been really hard to invent.

Will WIPO Wipe the Floor?

This is how the world ends, not with a bang - not with a clash of titans - but with a whimper, in an obscure WIPO committee. The committee in question rejoices in the moniker "U.N. World Intellectual Property Organization's Standing Committee on Copyright and Related Rights Committee". And this is how the report on the EFF's site lays out the effects of the current draft of its work:

The treaty would give broadcasters, cablecasters, and potentially webcasters, broad new 50 year rights to control transmissions over the Internet, irrespective of the copyright status of the transmitted material. It also requires countries to provide legal protection for broadcaster technological protection measures.

Essentially it would be a huge win for the major content owners, a huge win for the status quo, and a huge win for IP maximalists. As this piece from Boing Boing explains, those IP maximalists are largely in the US, and the proposals in this treaty are largely driven by their agenda of locking down all forms of content, everywhere in the world, in the belief that it will increase their profits, even if it will chill all kinds of creative expression in the process.

Nothing new there, then. But what is notable is how the battle is being taken behind the scenes - not in public forums where alternative viewpoints can be aired, and the erroneous logic of the proposal refuted - but in the dark, rank, chummy world of deadly-tedious drafting committees, where every trick in the book can be used to out-manoeuvre those fighting to defend creative freedom.

The treaty in question is a case in point. As the EFF report on the moves explains:

Webcasting is now back in the treaty, after spending last year in a separate "working paper" because the majority of countries opposed its inclusion in 2004. Despite many counties' opposition again in 2005, it’s been included in the treaty as a non-mandatory Appendix. Countries that sign the treaty have the option – at any time -- to grant webcasters the same exclusive rights given to broadcasters and cablecasters by depositing a notice with WIPO.

At the same time, some of the key proposals to balance the impact of the new treaty have been removed from the new draft treaty text (the Draft Basic Proposal) and relegated to a new separate "Working Paper". For instance, the alternative that the treaty not include the contentious Technological Protection Measure obligations is not in the Draft Basic Proposal, but has been sidelined to the Draft Working Paper.

Unfortunately, it is hard to see who is going to stop this. As more and more battles are won at the national level, so the fight over content moves up the stack, to supra-national bodies that wield immense power, are subject to little or no oversight, and which are largely aligned with the interests of the already-rich and the already-powerful against anybody who would like to share a little of that money and power.

Update 1: The EFF reports that webcasting is now out of the main treaty again, but that the threat in the longer-term remains.

Update 2: Here's a good report by James Love on where things now stand (via On the Commons).

Avast There, Landlubbers

Quite.