You may remember a rather wonderful court case from 2012 that pitted copyright lawyers against patent lawyers over the issue of whether submitting journal articles as part of the patenting process was fair use. Well, we now have the judge's decision, as GigaOm reports:
Well, this one's bizarre. Back in March 2010 we wrote about the UK Usenet aggregator Newzbin being found liable for the copyright infringment of its users. A year later, the ISP BT was ordered to block access to Newzbin2, its successor. What amounted to the UK's first Internet censorship order was upheld soon afterwards.
Yet more innovation around open source ideas, from an outfit called LexPublica (with a clever URL, too):
There is a crying need for access to legal help. No one can afford lawyers. Individuals, professionals and small businesses can’t afford lawyers. Startups can’t afford lawyers. Big companies with large budgets for legal services struggle to afford lawyers. Even lawyers complain, genuinely, that they can’t afford lawyers.
LexPublica aims to solve this problem by opening up the world of legal knowledge to everyone.
The first practical step we’ll take is to make common contract templates available free of charge. These will include things that many businesses need, such as employment agreements, website development agreements and non-disclosure agreements (NDAs for short). The contract templates will be written in plain language and have supporting guides to help you use them properly.
It's plans are splendidly ambitious - nothing less than to create a global legal commons:Tackling an enterprise of this magnitude requires an enormous team effort. LexPublica will need to be a global online community of lawyers and non-lawyers working together to create contract templates and informational guides for those templates.
The grand vision is to harness this community effort to create the reference source for contract templates generally, for practical legal information, and beyond that, for all legal knowledge across all areas of law. You might call it a global legal commons.
Think we're crazy? Wikipedia, Linux and other similar projects provide successful and similarly sized examples for us to follow.
And yes, it has a business plan:There’s a commercial twin to LexPublica, called 8.5x14 (named after legal size paper). It will provide a wide range of commercial services, both for people and businesses who need legal services, and for the lawyers who serve them. These services will be built around LexPublica’s open content and open APIs.
As one example, imagine an online workspace to manage your business’s standard contract templates, your contract negotiations and your dealings with your lawyer. The service is simple contract management, something like the Basecamp project management web service, but for contracts and negotiations.
Wow, exciting stuff. (Via Rory MacDonald.)
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Not just right, but very well put:I often explain to clients and prospective clients that the main reward for a great, original product is a successful business based on that product. Intellectual property notwithstanding, the best way to protect most great ideas is by consistently excellent execution, high quality, responsive customer service, continued innovation and overall staying ahead of the competition by delivering more value. Absent the rare circumstance of an entire industry dedicated to counterfeits, à la Vuitton, if an enterprise can’t fathom protecting its value proposition without some kind of gaudy trademark protection, ultimately something has to give.
Fender, according to the record in this opinion, understood the truth well for decades. It warned consumers to stick with its quality “originals” and not to be fooled by “cheap imitations,” and it flourished. But for all these years, Fender never claimed to think the sincerest form of flattery was against the law. Only in the feverish IP-crazy atmosphere of our current century did the company deem it “necessary” to spend a fortune that could have been used on product development, marketing or any darned thing on a quixotic quest for a trademark it never believed in itself. That is more than an impossible dream — it’s a crying shame.
(Via Luis Villa's blog.)
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As long-suffering readers of this blog will have noticed, one of my favourite hobby-horses is that the whole idea of "intellectual property” is a trick, designed to plug into the warm and fuzzy feeling most people have about the idea of property, and aiming to cover up the fact that what we are really dealing with here are intellectual monopolies – of which few people are fans....
On Open Enterprise blog.
Another judge gets it:A federal judge recently got so infuriated by the conduct of two highly regarded trial attorneys that he overturned a jury's $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars.
U.S. District Senior Judge Richard P. Matsch sanctioned attorneys Terrance McMahon and Vera Elson of the firm McDermott, Will and Emery, of Chicago and San Francisco, for "cavalier and abusive" misconduct and for having a "what can I get away with?" attitude during a 13-day patent infringement trial in Denver.
He ruled that the entire trial was "frivolous" and the case filed solely to stifle competition rather than to protect a patent.
(Via Slashdot.)
There seems to be some magic about free software: whenever a certain class of (intelligent) lawyer comes into contact with it, it redeems them, and turns them into enlightened benefactors. Eben Moglen is the paradigmatic case, but here's another: Mark Radcliffe. You don't have to take my word - this is what Matt has to say:If it has to do with open source and it affects your rights therein, Mark was probably at the fulcrum.
...and pathetic.
When a company starts harassing someone in this way, you can tell they've given up hope. On the basis of what's happened so far, I don't expect the management of SCO to be ashamed, but I do wonder what the lawyers involved see when they look in the mirror.
Lawyers thrive on complication and ambiguity. Things don't get more complicated or ambiguous than in cyberspace - it's no coincidence that Larry Lessig rose to prominence as one of the first to wield the machete of his fine legal mind on this thicket.
Things are even more complicated in virtual worlds, because they are inherently richer. Here's a nice round-up of some of the legal issues involved. Two paragraphs in particular caught my eye:One complicating factor is jurisdiction. Linden currently operates under California and U.S. law. British IP attorney Cooper says that virtual worlds like Second Life need a form of international arbitration. "If I get ... an Australian operating a business in Second Life, asking me, a U.K. attorney, how he can best protect his business within Second Life, how do I answer him?" he says, citing one query that he has received. But Cooper sees a model in the uniform dispute resolution policy (UDRP) for Internet domain names. Created in 1999 by the Internet Corporation for Assigned Names and Numbers (ICANN) in cooperation with the World Intellectual Property Organization, the UDRP created an international solution to issues like cybersquatting of domain names that were difficult or impossible to resolve in regional courts.
Cooper, Lieberman and other interested avatars, including the Second Life Bar Association and many non-lawyers, are now working together to formalize online arbitration as a required first step to handle Second Life disputes, without resort to real courts and their costs. Together they are lobbying Linden to include arbitration in its terms of service agreement. Meanwhile, Lieberman's group is introducing its proposed arbitration into the virtual world, hoping that other users will try it out and find it fair and useful.
(Via Second Life Herald.)
Further to this post, here's conclusive proof that the people behind Second Life get it:Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.
In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.
If you think laws are a problem in the real world, wait until you start thinking about the virtual one. Here's what one person has decided:I think that the entire range of common law rights needs to be viewed as applicable to virtual worlds -- property included.
Heavy stuff - but not something that we can avoid confronting as our second lives start to take on ever-more importance alongside our first ones.
In a comment to a previous post about Google's acquisition of YouTube, I muttered something about Google having losts of dosh and good lawyers to see off the inevitable lawsuits that will follow that move. Here's a rather more thoughtful take on that, ending with the following interesing idea:So I think the YouTube acquisition may well represent a legal opportunity for Google (and the Internet industry generally), rather than a vulnerability. After all, litigation to define the copyright rules for new online services are inevitable -- better to choose your battles and plan for them, rather than fleeing the fight and letting some other company create bad precedents that will haunt you later.
You can't beat a legal battle involving two overlapping pieces of legislation. The sight of lawyers having at each other, secure in the knowledge that the law is on their side, reminds me of nothing so much as two great elephant seals, thwacking each other vigorously, their proboscises all a-jiggle.
We could be in for another of these spectacles, according to this Techdirt article. It seems that the old End-User Licence Agreement (EULA) is being used to trump copyright fair use provisions, and that this might eventually go to the US Supreme Court to sort out (but don't hold your breath for EULAs getting spanked).
Of course, for those of us who use free software, EULAs are but dim memories from some strange, barbaric past, with no question of trumping anything.
A fascinating commentary from a lawyer on an issue I raised in passing a little while back: whether the GNU GPL, which depends on copyright law for its enforcement, is therefore in thrall to "IP"/the intellectual monopolies that copyright implies?
Perhaps these nice people could help us out on this conundrum?
And now for some good news about patents - no really. Judging by this article on the excellent Techdirt, a few of the brighter VCs are starting to get the message about software patents. Next thing you know, even the lawyers will join in - then we'll know that the end of the world is really nigh.
Paul Graham is a master stylist - indeed, one of the best writers on technology around. Reading his latest essay, "Are Software Patents Evil?" is like floating in linguistic cream. And that's the problem. His prose is so seductive that it is too easy to be hypnotised by his gently-rhythmic cadences, too pleasurable to be lulled into a complaisant state, until you find yourself nodding mechanically in agreement - even with ideas that are, alas, fundamentally wrong.
Take his point in this recent essay about algorithms, where he tries to argue that software patents are OK, even when they are essentially algorithms, because hardware is really only an instantiation of an algorithm.
If you allow patents on algorithms, you block anyone from using what is just a mathematical technique. If you allow patents on algorithms of any kind, then you can patent mathematics and its representations of physics (what we loosely call the Laws of Physics are in fact just algorithms for calculating reality).
But let's look at the objection he raises, that hardware is really just an algorithm made physical. Maybe they are; but the point is you have to work out how to make that algorithm physical - and that's what the patent is for, not for the algorithm itself. Note that such a patent does not block anyone else from coming up with different physical manifestations of it. They are simply stopped from copying your particular idea.
It's instructive to look at another area where patents are being hugely abused: in the field of genes. Thanks to a ruling in 1980 that DNA could be patented, there has been a flood of completely insane patent applications, some of which have been granted (mostly in the US, of course). Generally, these concern genes - DNA that codes for particular proteins. The argument is that these proteins do useful things, so the DNA that codes for them can therefore be patented.
The problem is that there is no way of coming up with an alternative to that gene: it is "the" gene for some particular biological function. So the patent on it blocks everyone using that genomic information, for whatever purpose. What should be patentable - because, let me be clear here, patents do serve a useful purpose when granted appropriately - is the particular use of the protein - not the DNA - the physical instantiation of what is effectively a genomic algorithm.
Allowing patents on a particular industrial use for a protein - not a patent on its function in nature - leaves the door open for others to find other chemicals that can do the same job for the industrial application. It also leaves the DNA as information/algorithm, outside the realm of patents.
This test of whether a patent allows alternative implementations of the underlying idea can be applied fruitfully to the equally-vexed questions of business methods. Amazon's famous "one-click" method of online making purchases is clearly total codswallop as a patent. It is a patent on an idea, and blocks everyone else from implementing that (obvious) idea.
The same can be said about an earlier patent that Oracle applied for, which apparently involved the conversion of one markup language into another. As any programmer will tell you, this is essentially trivial, in the mathematical sense that you can define a set of rules - an algorithm - and the whole drops out automatically. And if you apply the test above - does it block other implementations? - this clearly does, since if such a patent were granted, it would stop everyone else coming up with algorithms for conversions. Worse, there would be no other way to do it, since the process is simply a restatement of the problem.
I was heartened to see that a blog posting on this case by John Lambert, a lawyer specialising in intellectual property, called forth a whole series of comments that explored the ideas I've sketched out above. I urge you to read it. What's striking is that the posts - rather like this one - are lacking the polish and poise of Graham's writing, but they more than make up for it in the passion they display, and the fact that they are (patently) right.
An interesting story in eWeek.com. Larry Brilliant, newly-appointed head of the Google.org philanthropic foundation, wants to set up a dedicated search engine that will spot incipient disease outbreaks.
The planned name is INSTEDD: International Networked System for Total Early Disease Detection - a reference to the fact that it represents an alternative option to just waiting for cataclysmic infections - like pandemics - to happen. According to the article:Brilliant wants to expand an existing web crawler run by the Canadian government. The Global Public Health Intelligence Network monitors about 20,000 Web sites in seven languages, searching for terms that could warn of an outbreak.
What's interesting about this - apart from the novel idea of spotting outbreaks around the physical world by scanning the information shadow they leave in the digital cyberworld - is that to work it depends critically on having free access to as much information and as many scientific and medical reports as possible.
Indeed, this seems a clear case where it could be claimed that not providing open access in relevant areas - and the range of subjects that are relevant is vast - is actually endangering the lives of millions of people. Something for publishers and their lawyers to think about, perhaps.
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