SCOTUS says no entry!
Summary: SCOTUS refuses to rule that APIs cannot be considered copyright-’protected’, despite common sense and despite Java (which the case is about) being Free/libre software
FOR anyone who has been paying attention, Oracle‘s hostility towards Android is not hard to understand. It is a CPTN member along with Microsoft and Apple and it has shown on numerous occasions over the years that it is eager to antagonise and badmouth Free software. Oracle killed many of the projects that it bought from Sun. Google, on the other hand, is at least trying to appease the Free software community and it has made Android (AOSP) an ‘open’ platform, even if most developers contribute just proprietary software to run on it.
Many of our readers have probably heard the big news by now. SCOTUS has aligned itself with foes of software development [1, 2, 3] (not just Free software development), reaffirming the ridiculous judgement from CAFC. Now that SCOTUS reaffirms the status of APIs as copyrightable, adding to mass surveillance with NDAs and software patents in the United States, why would software companies still choose to be there?
To give Google some credit, it did fight over this matter for nearly half a decade. After pressure from the clueless White House (exactly one month ago), however, reuse of APIs may be impossible and collaborative development with forking may soon be toxic. Today is a horrible day for software development in general and it’s not too clear to us what Google can do next. Some certain types of lawyers probably know Google’s next steps or options and knowing that this ‘legal’ system favours the deeper pockets, there is usually something someone can do given the correct fees (just see how long the SCO case goes on for).
“Google will hopefully continue to fight that case, whatever its options may be.”One reader of ours was disappointed with this article that FOSS Force published today, comparing Google to Microsoft. “Revisionism,” he said, “especially that closing sentence. People hate Microsoft not for the sake of hating Microsoft but because of how it (and its people) behaves and has behaved. It has held computing back at least 20 years and the damage spreads into all domains where desktop computers are used.
“It’s just that Microsoft pays for constant whine against Google. While Google has many shortcomings, it is not a problem like Microsoft has been and continues to be.”
“But on the topic of Google,” he continued, “here’s something fairly current with yet another ****up by SCOTUS” (he linked to the above news).
Google will hopefully continue to fight that case, whatever its options may be. As for Microsoft and Apple, they surely will keep trying to harm the market. They often work together these days (mostly true when it comes to patents, OOXML, DRM, and so on) and as this article by Galen Gruman reminds us:
If you thought Microsoft was finally treating the Mac as an equal citizen, you’ll be disappointed in the reality
Remember that Microsoft and Apple are both on Oracle’s anti-Android side (even publicly, on numerous occasions). These are all proprietary software giants, aspiring to control the entire market by patents, copyrights, litigation, and intimidation. Google simply does not fall under the same category. It deserves the public’s support in this particular case. █
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Summary: Microsoft reveals its disregard for copyright law which it loves so much to wield as a weapon against its competition and clients
Microsoft, which gives everyone’s personal and very private data to the NSA, likes talking about ‘IP’ and simultaneously claim to have a higher moral ground when it engages in bullying, extortion, and intimidation. Thanks to this pointer linking to ZDNet‘s Microsoft booster (former Microsoft staff), we now know that Microsoft is a copyright abuser. That’s what Getty alleges anyway:
A new Microsoft Corp product that allows website publishers to embed digital photographs on their sites is a “massive infringement” of copyrighted images, Getty Images Inc [GETTY.UL] claimed in a lawsuit filed in federal court in New York on Thursday.
The “Bing Image Widget,” released on Aug. 22, gives publishers the ability to create a panel on their websites that displays digital images supplied by Microsoft’s Bing search engine, according to the lawsuit.
Rather than draw from a pool of licensed images, the lawsuit claimed, the product grants access to the billions of images that can be found online, without regard to whether the photos are copyrighted.
Microsoft wants people to forget these situations where Microsoft shows sheer hypocrisy or double-standard. Microsoft does not care about so-called ‘IP’; if it did, it wouldn’t have shared billions (or trillions) of bits of data collected from individuals using Windows, SKype, and online Microsoft services such as Live/Bing search.
Microsoft is a lying scam. █
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Summary: The Court of Appeals for the Federal Circuit’s judgments on software historically based on dogma and misunderstanding/misrepresentation/misinterpretation of facts, not adherence to rules, logic, or even public interest
NOW THAT Ballnux giant Samsung hoards more patents we should take a moment to remember that not all companies that are using GNU/Linux are actually friends. Even Microsoft claims to be embracing Linux in Android (through Nokia), but its intents are malicious, as we have explained numerous times before. Then there is Oracle, which joined Apple and Microsoft in hoarding Novell patents for malicious purposes. It also sued Google over Android and did some damage to Red Hat with Unbreakable, never mind all the damage Oracle did to Sun projects.
Deb Nicholson (FSF), writing for an established Web site, explained “How The Changing Legal Landscape Impacts Free And Open Source Software Development”. She correctly pointed out the following: “A patent is a limited monopoly granted for certain amount of time (20 years in many places) in exchange for full disclosure. Based on the description in the patent application, a person who is knowledgeable in that field should be able to recreate the invention. Patents used to be reserved for physical processes, new devices and sometimes a limited monopoly on a particular business opportunity. The scope of patentability has expanded in the last few decades and can now include software, as well as business methods and even certain medical procedures. The intent of patents is purportedly to encourage inventors to make investments and create new inventions that might have otherwise been too financially risky to complete. As soon as a patent expires the idea can be freely implemented by anyone.”
Patents, however, are no longer the only risk factor. Consider what the Court of Appeals for the Federal Circuit (CAFC) recently did. The FSF has just come out with this formal statement:
FSF statement on Court of Appeals ruling in Oracle v Google
The situation then is substantially similar to the situation today. The key difference is that some of Google’s affirmative defenses to claim non-infringement have been eliminated by this new ruling. The FSF now sincerely hopes for the next best thing to Alsup’s original ruling: that Google is successful in its fair use defense.
Notwithstanding our support of Google’s fair use defense, the FSF urges caution to all prospective Android users. Even though the core of the Android system is free, every Android device sold comes pre-loaded with a variety of proprietary applications and proprietary hardware drivers. The FSF encourages users to support the development of Replicant, a distribution of Android that is 100% free software. The FSF also encourages users of any Android-based system to install F-Droid, a free replacement for the Google Play app that allows users to browse, install, and receive updates from a repository of free software Android apps. Replicant uses F-Droid as its default repository.
Generally speaking, CAFC has been a sham for many years as it was also responsible for making software patents legitimate in the United States, before this trend/precedent spread to other countries. In 2012 it was points out that the court stood in the way of stopping software patents and a week or so ago TechDirt cited this article, accusing the person who did this in the court. As TechDirt put it: “Tim Lee recently got to talk to Michel following a talk he gave, and what becomes clear is that Michel is completely out of touch with how much of a problem patents are in the tech world today. Lee knows this subject better than probably anyone else, and when he tried to dig in on key points, it was obvious that Michel’s knowledge of what actually is happening in the industry is based on myths and imagination, rather than reality. For example, when Michel pointed out that he’s “a facts and figures guy” rather than one who focuses on “anecdotes and assumptions,” Lee quickly points to James Bessen and Michael Meurer’s comprehensive book on why patents hurt the tech industry.”
Lawyers defy logic.
Here is the latest relevant article about this, an article from TechDirt about CAFC:
For many years we’ve written about the serious problems with CAFC, the court of appeals for the federal circuit, which is better known as the appeals court where all patent cases go. CAFC was created in the early 1980s under the belief that a more “specialized” court could better handle the more complicated technical issues related to patents. But what really happened is that it basically built a club of patent-friendly judges, who spent nearly all of their time with patent lawyers, and thus took an increasingly patent-friendly view of the world. That one of the key original judges on CAFC was also a long-time well known patent lawyer who almost single-handedly wrote the 1952 Patent Act, seemed to set the tone that has remained throughout the court’s existence.
It is not unusual for this disgraceful court to do this type of thing. TechDirt also gave this other new example one week ago:
A few weeks ago, the Supreme Court smacked down the Federal Circuit (CAFC) for its made up rules that made it almost impossible to enable victims of patent trolls to get the courts to order the trolls to pay legal fees. As the Supreme Court noted, CAFC seemed to set up arbitrary rules for no reasons at all. And this is important, because courts almost never award legal fees, and with the untimely death of patent reform, hopefully this small change will at least help in the meantime.
Notice the tend. CAFC is a not a legitimate court, it has become a pack of software patents (and more broadly patents) boosters. Its latest judgment, as before, should be appealed and brought to SCOTUS, but this is expensive and can take years. █
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Lawyers deciding on technical issues
Summary: The Court of Appeals for the Federal Circuit (CAFC) shows us yet again that it does not understand technology and its latest ruling is harmful to the technical community
YESTERDAY we wrote about the menacing CAFC ruling, which basically throws a lot of FOSS under the rug (by extension) for it alleges that APIs are copyrightable and that their reuse does not qualify as fair use. We have already criticised CAFC for being very pro-software patents and for being utterly clueless on technical matters on numerous occasions, so the latest decision from it oughtn’t be so shocking. As Ars Technica put it, “Google, which said it was exploring its legal options, decried Friday’s ruling. The Mountain View, CA-based media giant said the decision “sets a damaging precedent for computer science and software development.””
Google is correct and it will hopefully appeal this decision. What we have here is misuse of copyrights, SCO style, by Oracle.
TechDirt posted the best rebuttal to this decision, attracting hundreds of comments and revealing a lot of holes and mistakes in CAFC’s ruling (the text). Here’s a sample:
Appeals Court Doesn’t Understand The Difference Between Software And An API; Declares APIs Copyrightable
We sort of expected this to happen after the appeals court for the Federal Circuit (CAFC) held its oral arguments back in December, but CAFC has now spit at basic common sense and has declared that you can copyright an API. As we noted, back when Judge William Alsup (who learned to code Java to better understand the issues in the case) ruled that APIs were not subject to copyright protection, his ruling was somewhat unique in that it was clearly directed as much at an appeals court panel who would be hearing the appeal as it was at the parties. Alsup rightly suspected that the judges on the appeal wouldn’t actually understand the issues as well as he did, and tried to break it down clearly for them. Unfortunately, the three judge CAFC panel did not pay attention. The ruling is so bad that legal scholars are suggesting that it may be as bad as the horrific ruling in the Garcia case.
As for the ruling itself… well… it’s bad. The court seems to not understand what an API is, confusing it with software functionality. It also appears to misread Judge Alsup’s ruling, thinking that he’s mistakenly using a fair use analysis to determine whether or not something is copyrightable. But that was not the basis of Judge Alsup’s ruling. He very specifically noted that the “command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted.” The CAFC panel doesn’t seem to understand this at all.
It seems fairly clear that the CAFC judges don’t understand the difference between an API and software. And thus they make a decision that makes no sense. There is no distinction recognized when it comes to the functionality of an API and how it’s entirely different than the purpose of the software itself. This is especially clear towards the end, in which the CAFC ruling misrepresents some discussions on whether certain functionality is best protected by patents or copyright. But the problem is that they misinterpret statements people are making about APIs, thinking that those statements were made about software as a whole. This is just a flat-out fundamental misunderstanding of what an API is, assuming that it’s just software.
Note that “[software]” thrown in before interfaces? Google is talking about whether APIs — “application programming interfaces” — are copyrightable. Not whether or not software is copyrightable. And yet the CAFC doesn’t even seem to realize this. Ridiculously, CAFC then uses its own misunderstanding and misquote, and points to some of the (many) arguments where people argue that patents are inappropriate for software to dismiss Google’s argument about APIs. It honestly doesn’t realize that it’s comparing two totally different things. What lots of people agree on: software shouldn’t be patentable and APIs shouldn’t be copyrightable, but software can be copyrightable and API functionality may be patentable. But by confusing APIs and software, CAFC totally misreads both arguments.
This will probably go to SCOTUS next (unless they decline to weigh in), but in the mean time it spreads uncertainty and doubt, harming not only Free software developers but developers in general. As TechDirt put it, “CAFC has mucked up another form of intellectual property law through a basic (and near total) misunderstanding of technology.” █
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Privatising everything, even vague ideas
Summary: Patents on everything that’s conceivable are being granted and even APIs are being monopolised, due to overzealous copyright lawyers
YESTERDAY we wrote about Amazon‘s latest crazy patent, using it as an example of how crazy the USPTO has gone. It’s not even an examination centre, it is approving almost everything that comes through, rendering it just a rubber-stamping pipeline like ISO. Ars Technica says that “Amazon’s latest patent is sillier than the peanut butter sandwich patent”, or to put it another way: “Thought the peanut butter sandwich patent was a joke? That one doesn’t even register a chuckle compared to a patent recently granted to Amazon.com. The e-commerce giant now can claim a legal monopoly on the process of photographing people and things against a white backdrop.”
The USPTO is starting to look more like a hoax. Sun employees, whose patents got passed to Oracle, said they had joked about how silly a patent they could get past the USPTO. They even competed over how ridiculous a patent they could slide through. And watch what Oracle is doing with such patents right now. Copyright may be essential for copyleft licences such as the GPL, but what happens when patent attacks on Android are coupled with copyright on APIs? To quote the EFF: “We’re still digesting today’s lengthy decision in the Oracle v. Google appeal, but we’re disappointed—and worried. The heart of the appeal was whether Oracle can claim a copyright on Java APIs and, if so, whether Google infringed that copyright. According to the Federal Circuit today, the answer to both questions was a qualified yes—with the qualification being that Google may have a fair use defense.
“Quick background: When it implemented the Android OS, Google wrote its own version of Java. But in order to allow developers to write their own programs for Android, Google relied on Java APIs. Application Programming Interfaces are, generally speaking, specifications that allow programs to communicate with each other. So when you type a letter in a word processor, and hit the print command, you are using an API that lets the word processor talk to the printer driver, even though they were written by different people.”
Copyright, patents and even trademarks in the US need revisiting. There are many examples where each of those three get misused to censor, to crush competition, to impede innovation, and ban sharing where it’s clearly beneficial, collectively. The waning dominance of the West may, in some awkward way, one day weaken all those artificial barriers that ACTA, SOPA, TPP etc. are trying to prop up. Right now it’s too damn clear that progress is not the goal; protectionism for the top 1% of wealth holder is the goal. █
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Welcome ‘soft’ censorship
Thomas Wheeler; photo by Andrew Harrer / Bloomberg / December 12, 2013
Summary: The vision of ‘soft’ censorship, long sought after by corporate media, is finally here in the form of slow lanes for 99% of us
NOTHING surprises us when it comes to the FCC’s betrayal, at least not anymore. We wrote a great deal about Net Neutrality (dozens of times before) not because it relates to software but because as a site that drives around 100 GB of traffic per month we are very much affected by the issue and we should probably throw yet another opinion out there, despite the issue being covered very widely (which is good) to shed light on the seriousness of the matter.
One of our readers sent us this link which helps show the role of corporate lobbying in all this. As Mike Masnick put it: “We’ve talked plenty about the big revolving door between government and big business lately, but there are still some moments that are purely insane that show just how broken the system is. On Wednesday, news broke that former FCC commissioner Meredith Attwell Baker has been named the new CEO of CTIA, the main lobbying organization for mobile phone operators. Baker is no stranger to questionable revolving door moves, seeing as just months after she voted to approve Comcast’s merger with NBC Universal, she took a top lobbying job with Comcast. Funny how that works.
“But, in this case, it’s even more ridiculous because, as Jon Brodkin points out, the current head of the FCC, Tom Wheeler, previously was CEO of CTIA as well. And prior to that he was CEO of NCTA (the cable industry’s main lobbying group). And, to top it off, the current head of CTIA is none other than former FCC chair Michael Powell.”
Here is more about it. It’s simply white collar corruption and we should treat it accordingly. Here is an oldish quote regarding Net Neutrality and beyond, from President Obama himself: “I am in this race to tell the corporate lobbyists that their days of setting the agenda in Washington are over. I have done more than any other candidate in this race to take on lobbyists — and won. They have not funded my campaign, they will not run my White House, and they will not drown out the voices of the American people when I am president.”
Nonsense. False promises and no hope.
As one article put it, we now have “Net Discrimination” and it is being stamped into law. As another article put it, “FCC guts net neutrality to pave way to tiered internet” and there is similar analysis elsewhere. Well, as usual we have a deceiving headline from the Murdoch propaganda press (we highlighted this pattern before) and as one blog put it, “FCC Plots Murder of Blogs on Behalf of Billionaire Media Lords” (like Murdoch).
The cable and media giants are not really liking it when other points of view are being sent across, especially some in video and audio (which is where traffic gets very expensive). It is clear that for financial reasons some shows will have to shut down as a result of the FCC’s (lobbyists’) latest moves, which were driven in part (as precursor) by Comcast and Netflix. They are banning competition by passing new laws, or at least suppressing competition. There is now a White House petition for Net Neutrality, but these petitions usually prove to be a waste of time; they might generate some press, but the White House is not genuinely interested in serving people, only corporations. There are still some weeks left for things to change, just like in Europe (where Net Neutrality is being defended and finalisation of such a decision is imminent).
What big businesses and lobbyists seek here is protectionism. They are making sure that the Internet becomes useful only for surveillance and propaganda, as much of the rest is censored, made expensive, slowed down, and suppressed behind protocols that make the Web “Hollyweb”.
As we pointed out before, Tom Wheeler is more like a mole, never really committing to Net Neutrality. Some sites provided proof of it while continuing their coverage of the latest developments.
This is not about videos. Like many other policies, “congestion” is an excuse, like “terrorism” and “think of the children!”
They are starting with videos and later, once the presence is already there, expand to more areas and media types, driving small sites out of the Web. What we deal with here is erosion of Internet freedom and rights, promoting the big corporations and subverting equality of speech.
Net neutrality is not just some Utopia. Subscribers who pay for the Internet connection typically bear the costs and if there is a capacity issue, then expansion can be taken care of. People pay for it already. Watch the article many sites have been citing, spinning the news as a discussion about a “Fast Lane”. This is nonsense. As one person put it, “NYT framing is also slavish. It’s not a “fast lane” it’s the ability to throttle and extort everyone that is being allowed. Wheeler’s assertion that this kind of behavior won’t be tolerated ignores prior and ongoing throttling. Shame on Wheeler and the NYT.”
So the rich and powerful will have their traffic and packets treated specially, at the expense of others’. They are also putting DRM in HTML and incorporating other abuses against the Web, including DPI and other forms of surveillance. According to the NYT: “The Federal Communications Commission will propose new rules that allow Internet service providers to offer a faster lane through which to send video and other content to consumers, as long as a content company is willing to pay for it, according to people briefed on the proposals.”
That’s deceiving. They use the same propaganda language that the cable oligopoly has been using all along. It continues by saying: “The proposed rules are a complete turnaround for the F.C.C. on the subject of so-called net neutrality, the principle that Internet users should have equal ability to see any content they choose, and that no content providers should be discriminated against in providing their offerings to consumers.”
It’s not much of a turnaround for those who have watched the FCC being taken over by lobbyists (and revolving doors actions, including from Microsoft). The FCC should be disbanded and a new body put in charge of these issues. The FCC is no longer what it’s supposed to be; it has been hijacked.
It is a turning point in the fight against censorship and the fight for information on the Web. Costs are being used in this type of warfare; So shows like TechBytes will be disciminated against and sent more slowly (if at all) to listeners, unless the host pays additional, prohibitive costs.
Watch another example of corporate press spin: “Internet service providers could strike special deals with Internet companies like Netflix or Skype for preferential treatment, under proposals by Federal Communications Commission Chairman Tom Wheeler, violating the ideal of equal access for all consumers”
This is not about fast lanes for large corporations and mass media’s corporate masters; it is about SLOW lanes for those who are not in a list of “approved” media or whatever. It’s ‘soft’ censorship. █
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Buildings around Sony HQ in Tokyo
Summary: New examples of so-called ‘IP’ being used to oppress society, censor society, and perform extensive surveillance on it
THERE IS some real criticism of the so-called “IP” (intellectual monopolies) movement these days, even in some of the corporate press. TechDirt points out that Newegg has just crushed a patent troll . The problem, however, is that the media mostly tackles the issue which is trolls (tackling one patent at a time) rather than cover the real issue, which large corporations don’t want fixed (right now they lobby against patent scope reform at SCOTUS).
It’s not just about patents, either. Copyright monopolies are getting more draconian over time and according to [2,3], the company which attacks Android using patents (Sony) is now attacking Open Source films using bogus DMCA requests. Over the years we have covered many other reasons to avoid anything from Sony. Now there is yet another reason. This abuse is systematic, not an “oops”. Simon Phipps (OSI) said he had tried to upload the original video (“Sintel”) and was blocked, whereupon he appealed and asked others to do the same. British law and British politics mostly overlook these serious abuses  which are monopolies on ideas and works. British politicians are generally quite horrible; they serve corporations, not people. Just look how many British politicians lobbied against net neutrality in the European Parliament last week.
“What we have right now is the criminalisation of more and more digital activities which were perfectly legitimate activities before digitisation.”Not too long ago, a business of a German living in New Zealand was shut down using an illegal raid along with abuses of surveillance and police powers (and literal stealing of people’s personal and business data ). Dropbox, which was on the leaked PRISM slides as “coming soon” (Microsoft was first in PRISM’s slides/timeline), plays ball with those who are abusing powers , using suspicion alone as justification for suspension and/or censorship. This also means that Dropbox is accessing all files that people are uploading. Copyright provides/equips Dropbox with a convenient excuse for doing so, showing again that copyright, surveillance and censorship typically go hand in hand. Dropbox is definitely something to boycott (better now than later).
The world needs to learn how to share. Corporations need to learn how to cooperate. What we have right now is the criminalisation of more and more digital activities which were perfectly legitimate activities before digitisation. █
Related/contextual items from the news:
MacroSolve is a company that got a lot of (generally negative) attention when it turned full-blown “patent troll” in 2011, suing dozens of companies (including small app development shops) over patent No. 7,822,816, which it claims covers using questionnaires on a mobile app.
Now, a coalition of defendants led by Newegg and Geico Insurance has stopped MacroSolve in its tracks. MacroSolve has dismissed all remaining cases, and it has admitted that it can’t proceed to go forward with a trial that was scheduled to take place this June in East Texas.
Sony Pictures has demanded the removal of the CGI short film Sintel from YouTube due to a claim of copyright infringement. One small problem: they don’t actually own anything in the film.
Sintel, a film by Colin Levy which has been featured before on Cartoon Brew, was created by the Blender Foundation, the non-profit organization which promotes the free, open source 3D software Blender. The crowdfunded short was made using entirely original materials, and was licensed as Creative Commons Attribution 3.0, which means that anyone can freely share the movie.
While Nigel Farage and Nick Clegg kicked around old political footballs like immigration on Wednesday night, there was a glaring omission from the debate: digital rights.
Millions of users lost access to their personal files when Megaupload was raided, and there’s little chance that they will have them returned in the near future. Despite efforts from both Megaupload and its former hosting company to negotiate a solution, the servers are still gathering dust in a Virginia warehouse.
A tweet that appeared late last night took everyone by surprise. The tweet talked about a DMCA notice that blocked a file from being shared on a Dropbox user’s account.
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A spokesperson for BIS (the Department of Business, Innovation and Skills), commented on the reforms, saying, “One of these measures is copyright exception for archiving and preserving. The existing preservation exception will be updated to apply to all types of media and to museums and galleries, as well as libraries and archives.”
The Saudi Arabian Ministry of Culture and Information has blocked access to The Pirate Bay, for reasons yet unknown. In addition to the notorious torrent site, Torrentz.eu, Rarbg and possibly several others are blocked too. As always, local users are already discussing ways to work around the restrictions.
In 1989, a little known group from New York released an album that would change the course of hip hop. De La Soul’s 3 Feet High and Rising sounded like nothing else: spoken word, skit, and psychedelia; sampled exhaustively, sampled from life. 25 years in, it sounds all the more remarkable. It sounds like the Internet.
Two individuals accused of millions of dollars worth of Android piracy signed plea agreements with the U.S. Government last week, but at least one other defendant has different things in mind. With the hiring of a “much-feared civil rights lawyer”, the former operator of Applanet is going on the offensive against the DOJ.
It’s been almost a year since US District Judge Otis Wright issued a sanction order repudiating the lawyers behind the “copyright trolling” organization known as Prenda Law. Since then, several other judges have pounded Prenda with expensive sanction orders. Just last week, Paul Hansmeier, Paul Duffy, and John Steele—the three lawyers commonly linked to Prenda—were found to be in contempt of a devastating sanction order won by AT&T and Comcast.
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