Many patents killed in a fire
Summary: The US Supreme Court has just ruled a lot of software patents “invalid” (by generalisation), raising hopes that things are improving
WE are exceedingly delighted to learn that the Supreme Court (SCOTUS) ruled against software patents. Before lots of law firms (patent lawyers) issue their revisionist ‘articles’ on why it doesn’t change anything let’s look at what happened.
SCOTUS has, without exception among the Justices, decided that some software patents are too vague to merit a win in court. Essentially, they’re rendered toothless, by precedence. It is possible that hundreds of thousands of software patents have just been rendered dead. Since SCOTUS is the top court, not even the software patents-friendly CAFC can reverse this decision. As one good writer (patent matters expert) put is: “The most-anticipated patent decision from this Supreme Court term was published today. The decision involves finance-related software patents that were being used against CLS Bank, a key part of the global financial infrastructure.”
Here is the response from Red Hat’s site, an Android-hostile site, a Linux-friendly site, and from the FSF, which says “more work needed to end software patents for good”. There was a lot of coverage in the corporate media too, including [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22] and the message is quite uniform. Not even lawyers’ sites can deny the truth here. They will surely try later. We have done an extensive media survey and the media is as unanimous about this as the SCOTUS is. Here is the response from TechDirt, which sheds light on why it’s not enough. To quote the headline: “Supreme Court Rejects Software Patents On Performing Generic Functions; Pretends That Lots Of Other Software Must Be Patentable” (lawyers are going to have a day field around the latter part).
This is clearly not the end of software patents, but it’s a good start. Let’s enjoy this small victory while it lasts. A future patent case can be escalated to SCOTUS again, shedding doubt on this decision. It doesn’t happen quite so often though (In Re Bilski was half a decade ago). █
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Summary: The US is not even trying to truly reform patent policy and Europe is preparing to ‘import’ (through globalisation/treaties/etc.) this atrocious policy, based on new reports in the British press
WE shall slowly return to covering patent issues, for they are certainly becoming a huge subject again, especially in light of renewed Apple lawsuits/aggression, corruption in the courtrooms (blindly favouring al patents), and distraction by the media (we covered all three just two days ago), not to mention software patents (and patent trolls) in Europe becoming a huge issue because EU patents may soon follow US criteria for acceptance. “New EU rules have been created which allow the judgments of new unified patent courts (UPCs) to have legal effect from early 2015,” says The Register. This is great news for trolls and also for patent lawyers who wish to see patent scope expanding.
Mr. Mark Bohannon (Red Hat lobbyist) has written a couple of articles in the past week. In them, Bohannon focuses on trolls (not the real issue) and also expresses little or no hope for imminent change in the US patent system. To quote: “Late last month, as you’ve likely read by now, the US Senate Judiciary Committee (SJC) abruptly pulled consideration of a legislative patent reform package from consideration. For this year, at least, the prospect of addressing abusive patent litigation through Congressional action is on ice.
“The move by the Committee disappointed, even outraged, a broad coalition working for legislative reform.
“Reaction came not just from many in the technology and Internet innovation sector, which have been at the forefront of reform efforts. Consumer and civil society groups (EFF, Engine Advocacy, Public Knowledge) voiced deep concern.
“Reflecting the wide swath of the US economy that is affected by abusive patent litigation, the view of many in the mainstream of American business was that the SJC “chose special interests over jobs on main street.” Retailers noted that “withdrawing the patent reform bill is a victory for patent trolls.” They were joined by restaurant owners, home builders, credit unions, hotels and lodges, the gaming industry, and the online travel industry, just to name a few.”
The problem, however, is not “abusive patent litigation”, it is patent scope. It sure seems like even if a patent reform was passed in the US, it would be beneficial to large corporations but hardly help the public. In other words, not only is there no sign of improvement in the US; even if the said reforms were to pass, not much would have changed. The real solutions are totally off the table. This system is inherently rigged, probably beyond repair, which is why we started focusing on limiting its reach (e.g. to Europe) rather than fixing it before it spreads. █
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Summary: Efforts to improve the patent system focus not on the real issue/s with patents but instead on phantom issues that help protect the interests of large corporations
According to some new statistics, the sordid mess of patent lawsuits is getting more serious, still. “That’s not a surprise,” insists the article. “Statistics from Lex Machina show that 2013 set a new record for new patent lawsuits. All those legal threats are giving new urgency to the patent reform debate.”
As usual, the straw man which is “patent trolls” takes all the blame, even through some entities — including universities — are selling patents to trolls. Watch the boosters of software patents using the straw man (Boston University is not directly a troll for example, so we know that not trolls are the sole issue). Blaming “trolls” is still the large corporations’ approach for diverting all attention to small offenders, using them as scapegoats while large corporations misuse patents themselves. The issue is the offence itself, not the scale of the offender.
When patents are granted on computer programs and video games (which are abstract) it should be clear that patent scope is the main problem. When new programs are introduced by the USPTO to increase the number of patents it should be clear what the source of trouble really is. Patent lawyers take sides and encourage software patents because there is money to be made from it.
Some large companies act no different from so-called trolls and the use of the term “troll” just mostly refers to scale these days. Trend Micro acted like a troll some years ago and now it receives a taste of its own poison. Consider this new article that says a “Delaware federal judge on Tuesday refused a request by Symantec Corp. and Trend Micro Inc. to partially delay two trials over a nonpracticing entity’s claims they flouted four anti-virus software patents, saying the requests came too late since trial dates had already been set.” (source)
According to Red Hat’s staff, new legislation only tackles trolls. To quote: “Patent reform may have stalled this year at the federal level, but patent trolls may soon find their actions curtailed by a number of patent abuse litigation laws that have been passed or are pending in over twenty U.S. states.
“Last year, the state of Vermont passed a law aimed at preventing “bad faith assertions of patent infringement.” The law targets the practice of sending demand letters with very little, if any information regarding the patent supposedly infringed and would require the asserting entity to provide the patent number, name and address of the company alleging infringement, and other details regarding the nature of the complaint. It is a common tactic for patent trolls, sometimes called “patent assertion entities” or “non-practicing entities” to send letters with very vague information alleging patent infringement to other businesses, both large and small, in the hopes of extorting a settlement from them to avoid a nuisance lawsuit.”
Not only trolls are doing this. Much bigger entities are doing the same thing, so this strategy would not bear fruit. Here is an example of this strategy in action: “When Santa Barbara startup FindTheBest (FTB) was sued by a patent troll called Lumen View last year, it vowed to fight back rather than pay up the $50,000 licensing fee Lumen was asking for. Company CEO Kevin O’Connor made it personal, pledging $1 million of his own money to fight the legal battle.”
The entity might be forced to pay the legal fees, but it does not address the issue of litigation by non-trolls. Here is another example. The reason we stopped focusing on patent issues some months ago is that the press gave up focusing on the real issue, focusing instead on the whole “trolls” distraction. Even Red Hat has become part of this problem.
Everyone recognises that there is a problem with the patent system, but the only voice which counts (corporations) as far as corporate press goes steers everyone away from the real solution. █
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Summary: In patent law, just like in most other areas of law, ‘reforms’ achieve nothing except reinforce the status quo
BOGUS ‘reforms’ are common vehicles for ‘normalising’ what’s already in place; such is the case with the NSA ‘reform’ that has been branded “Freedom”. Newspeak triumphs again.
The ‘Freedom’ Act basically stamps (for approval) what was lumped on top of ‘Patriot’ Act in the same way that patent ‘reforms’ in the US (also named along the lines of “invent” or “innovation”) basically authorise patent trolling and do nothing to limit patent scope, which expanded over time.
Years ago we cited reports that Intellectual Ventures, the world’s largest patent troll (which is highly connected to Microsoft), spent millions lobbying the US government along with Bill Gates. They don’t want anything to change. Now we know that patent trolls continue getting their way in Congress because money — not logic — drives US policy. To quote a long new report: “Trial lawyers are heavy donors to Democratic politicians, including Reid. A Washington Post article on Reid’s fundraising during his 2010 campaign noted big-money fundraisers taking place at a Florida trial lawyer’s home, as well as one held in California by the top securities class-action law firm, now named Robins Geller Rudman & Dowd.”
Another report from the same site shows how hard it has become to challenge patent trolls in the US:
Judge: FindTheBest can’t use anti-extortion law against a patent troll
Last year, consumer search website FindTheBest tried to use an anti-extortion law to fight back against Lumen View Technology, a patent troll that attacked it with a “matchmaking” patent. While FindTheBest was able to knock out Lumen’s patent in short order, its lawsuit based on the Racketeering Influenced and Corrupt Organizations (RICO) Act came to an end this week.
The judge’s opinion recounts some of the facts that led up to the RICO case, such as Lumen’s attorney, Damian Wasserbauer, accusing FindTheBest CEO Kevin O’Connor of committing a “hate crime” for using the term “patent troll” against one of Lumen’s owners.
Basically, not only patent law is flawed in the US; it’s now expanding to copyright in the sense that APIs are deemed copyright-able. █
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Summary: Nokia’s proxy-like role in Android contributes to yet more privacy violations and disregard for the law
Microsoft’s arrogance and disregard for the law could not be much clearer than this (image copied above for future reference). “Report immediately for piracy. Not even kidding,” said one person in the comments.
Several times in the past we wrote about what Microsoft had planned for Nokia, focusing especially on privacy violations of a high degree [1, 2, 3, 4, 5, 6].
Perhaps one of the obvious concerns here is not just Microsoft’s flagrant disregard for the law but also its abuses against privacy, which we wrote about many times before. One new article correctly points out that “[u]sing Microsoft products may be unethical for universities” because of privacy, not just because it’s proprietary. To quote:
Universities and researchers all over the world have a problem with Microsoft. It’s not just that the company forces expensive and dated software on customers. Using products like Microsoft’s email service Outlook is potentially in breach of the ethical contracts researchers sign when they promise to safeguard the privacy of their subjects.
The revelations about spying by the United States National Security Agency and the United Kingdom’s GCHQ – Government Communications Headquarters – have led people everywhere to ask whether their data is secure.
But unlike many others, researchers face serious ethical implications if the answer is ‘no’.
When a researcher wants to carry out a study, s/he has to run it past an ethics review committee. This committee does its best to ensure that scholarly practices protect the privacy and safety of research subjects.
Medical researchers gather sensitive information about our fragile bodies, psychologists about our minds, law scholars about our crimes, sociologists about our private lives.
Microsoft deserves to be shunned from computing for many other reasons, but its inertia and its control over the press keeps masking or censoring judgment of its practices. █
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Summary: Corporate overloads have successfully shot down any chance of attaining freedom for software developers
HAVING spent about a decade of my life fighting against software patents, it is just too hard to let the cause go. I sometimes revisit relevant news sites and blogs, hoping to find some relevant coverage, parliamentary action, activism, etc. Over the past year or so this has been a depressing exercise because on people’s lips there’s no longer (or rarely) the goal of eliminating software patents. Companies like Google joined the ranks of IBM and are now hiring patent lawyers, acquiring software patents, and so on. I had warned managers at Google about it and their responses to me were largely defeatist. The SCOTUS, which historically is just a plutocrats’ tool for authorising the plutocrat’s will, continues to support the USPTO’s patent maximalism (the USPTO is headed by corporations such as IBM).
There is no substantial bill seeking to truly reform the patent system and those which exist, including corresponding press coverage, are focusing on trolls, costs, and other side issues. The EFF, which once upon a time promised to fight against software patents, recently hired some more lawyers whose articles on the matter tend to be a waste of time (and whose focus is truly bizarre, misguided at best). Here is one new example, the latest of many that we covered last year:
The Supreme Court heard oral argument today in another patent case, Limelight Networks, Inc. v. Akamai Technologies, Inc. In this case, the Court considers what to do when one party performs some steps of a patented method and another party performs the remaining steps. Specifically, Akamai wants to hold Limelight liable for patent infringement even though its customers perform one of the steps of the patent (i.e. four steps are performed by Limelight, one by the customers). The Federal Circuit had ruled for Akamai and effectively held Limelight responsible for the actions of its customers.
But that’s not the point. The point is, patents like these should be out of scope, it doesn’t matter who performs which action, who pays for litigation, who the plaintiff is, and so forth. Even Red Hat, which takes pride in “Open Source” (not so much in freedom) focuses on “trolls” in this latest post on the topic:
Patent trolling—the aggressive assertion of weak or meritless patent claims by non-practicing entities—is a frequent target of disdain from open source enthusiasts. Thus it may be of some comfort to readers that the highest court in the US has recently decided the issue is worth looking into. Three cases have already been heard, but decisions are, as usual, still a ways off.
When even entities like the EFF and Red Hat waste their efforts (if not hijack the voice of patents opposition) trying to tackle the wrong question it seems clear that activists against software patents (that’s software developers, both free/libre and proprietary) are pretty much alone. We oughtn’t expect corporations, corporate press or even politicians to help our cause. They don’t understand, they don’t care, and if they care, then it’s not because they want to see software patents abolished. IBM is probably one of the worst pretenders; unlike Microsoft, it also tries to convince us that it’s on our side and many people fall for it. █
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Counterterrorism becomes terrorism
Summary: More new examples of the draconian and unthinkable state of copyright law and especially its enforcement, which now co-opts anti-terror laws
A READER has diverted our attention to “secret evidence in NZ courts,” in reference to  and . Read  (a news site not blocked by default by some British ISPs, unlike [1,2]). It’s amazing. Here we have not just SWAP-type raiders being used by the copyright monopoly (Hollywood) but also secrecy laws, clearly confusing/conflating terrorism with copyright allegations. What have we come to?! Copyright allegations are now equated not just with “piracy” (misnomer) but with “terrorism”. Also see  for ransom/bounty examples; monetary rewards are put on the heads of alleged copyright infringers. If some of these alleged copyright infringers are suitable to run for European Parliament , then surely they are not as bad as pirates or terrorists. A “European Pirate Party” may well be on its way  as reforms for copyright law are sought. Groups like Chilling Effects  and the British Open Rights Group also join such efforts [8-10], boosted to some degree by some recent court cases , including the billion-dollar YouTube lawsuit against Google [12,13]. Just watch how copyright continues to induce censorship inside Google ; and it’s spiraling out of control (“Google Takedown Notices Surge 711,887 Percent in Four Years”). Does anyone think this really makes sense?
When copyright infringement (or allegation thereof) is treated as an offence as serious as terrorism it should be rather clear that the law is broken and needs fixing. █
Related/contextual items from the news:
Days after the Supreme Court denied Kim Dotcom access to evidence held by the FBI, the Megaupload founder’s legal team were back in court seeking other documents in connection with a compensation claim. During the hearing, however, a Crown lawyer took the opportunity to complain about Dotcom’s use of Twitter.
Kim Dotcom and his alleged Megaupload co-conspirators have been denied access to the evidence gathered by U.S. authorities against them. Megaupload’s legal team argued that this information is essential to mount a solid defense, but the Supreme Court ruled that full disclosure is not required under New Zealand law.
Dotcom and his lawyers have lost a bid to force the United States to show them the evidence they plan to use in making their argument that he should be extradited. The Supreme Court of New Zealand published a 123-page ruling today, detailing their decision that the US isn’t required to hand over to Dotcom and his lawyers copies of the documents it refers to in its arguments.
World Wrestling Entertainment (WWE) “apologized” last week to a streaming links site owner for wrongfully taking down his Facebook page on copyright grounds. On offer was a compensatory WWE gift bag, but it quickly became clear that nicely wrapped presents were probably the last thing the wrestling outfit had in mind.
In two months time citizens of all European Union member states will vote on who can represent them in the European Parliament. Pirate Parties will join the election race In several countries, with Finland having the most prominent candidate in Pirate Bay founder Peter Sunde, who is also picked by the European Pirate Party as candidate for the European Commission presidency.
This weekend, hundreds of pirates from all over Europe gathered in the European Parliament to formally found the European Pirate Party. It was an amazing gathering of determined activists, many of which were absolutely electrified at realizing the sheer scale of this movement, seeing 400 of Europe’s brightest activists gathering for the occasion. I had the honor of giving one of the opening keynotes (below).
Sandra Aistars of the Copyright Alliance issued a statement during the recent DMCA-related hearing in front of the House Judiciary Committee. As was noted earlier, a bunch of effort was made to turn the “notice and takedown” system into a “notice and stay down” system, and weirdly, the word “free” was thrown about as if it was synonymous with “infringement.”
It is approaching four years since the Digital Economy Act was passed, and still measures within it to deal with individuals alleged to have infringed copyright have not been implemented. It’s an Act that was so poorly conceived, planned and written that it has proven almost impossible to implement in practice.
It is fitting that last week heralded the 25th anniversary of the foundation of the Web. It is also 25 years since the Copyright, Designs and Patents Act received Royal Assent. Since 1989, the Internet and other types of new technology have changed the world dramatically. The copyright framework needs to reflect these changes and fit with the digital world so that information is preserved, respect for the law is regained and opportunities are not lost to competitor countries who have more flexible frameworks.
Unlike Germany, France, the Netherlands, Australia and the USA, the UK does not have an exception from copyright law for parody. This means that thousands of us are engaging in illegal activity everyday. Upload a film of you singing Adele’s Someone Like You, create a Downfall spoof or make a meme based on a well-known advert, and you’re infringing copyright law.
Last month, we wrote about the rate court fight between ASCAP and Pandora as ASCAP attempted to massively increase Pandora’s rates through moves that were quite clearly collusive. ASCAP had already lost an earlier ruling showing that it had violated its consent decree by letting publishers selectively remove certain works in order to force Pandora into paying much, much higher rates. However, the details of ASCAP and the publishers’ deception became much clearer during the rate court battle. Last week, the judge handed ASCAP a huge loss, keeping the rate where it had been, at 1.85%, rather than jacking it up to ASCAP’s requested 3%.
Ending a long-running legal battle, search giant Google has settled a landmark copyright lawsuit in which Viacom, the parent company of such television networks as MTV, Comedy Central, and Nickelodeon, accused the former of posting its films and television shows on YouTube without permission.
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Summary: The latest flavours of censorship around the world, including the Western world where even links to sites are now treated like offenses
We want to end the UK-wide censorship system of web blocking by holding ISPs and the Government accountable.
We know that default filters prevent people accessing important and legal information. Over-blocking is a serious and unavoidable effect of filtering. Yet ISPs give website owners and customers minimal information on why and what is being blocked, or how to report problems.
Saudi Arabia has threatened to blockade its neighbouring Gulf State Qatar by land and sea unless it cuts ties with the Muslim Brotherhood, closes Al Jazeera, and expels local branches of two prestigious U.S. think tanks, the Brookings Doha Center and the Rand Qatar Policy Institute.
The video had flimsy production values and was just 14 minutes long, but internet service providers fear they will pay a lasting price for Innocence of Muslims. A court order to remove the anti-Islamic film from YouTube has paved the way for attempts to menace other creative visual works under cover of copyright, some legal experts have warned.
The Turkish prime minister, Recep Tayyip Erdoğan, said Facebook and YouTube could be banned following local elections in March after leaked tapes of an alleged phone call between him and his son went viral, prompting calls for his resignation.
Erdoğan claims social media sites have been abused by his political enemies, in particular his former ally US-based Turkish Muslim cleric Fethullah Gülen, who, he says, is behind a stream of “fabricated” audio recordings posted on the internet purportedly revealing corruption in his inner circle.
The U.S. Attorney for the Northern District of Texas today filed a motion to dismiss 11 charges against Barrett Brown in a criminal prosecution that would have had massive implications for journalism and the right of ordinary people to share links. EFF has written extensively about the case and had planned to file an amicus brief on Monday on behalf of several reporters groups arguing for the dismissal of the indictment.
This– A LINK– could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail.
First, a quick recap of how the internet works. People from all over the world put stuff on the web (“posts”). In many cases you the viewer do not know who posted something, when they did it, where they live or where they obtained the information they posted. It is just there on your screen. If the info is of interest, you can link to it, sending instructions via chat, email, HTML, Facebook or whatever to someone else, telling them where to find the information.
The act of linking is analogous to saying “Hey, did you see that article in the Times on page 4? Check it out.” It is kind of what the internet is about. Here’s how the government seeks to criminalize linking from one article on the web to another.
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