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Amazon Sued Over E-Book DRM Patent
I Don't Believe in Imaginary Property writes "Discovery Communications, the parent company of the Discovery Channel, is alleging that Amazon's Kindle e-book reader infringes upon their patent for DRM-encumbered e-books (Discovery's complaint, PDF). The patent in question was filed back in 1999 and issued in 2007 — coincidentally one day after Kindle 1.0 went on the market — and has claims for DRM implemented with a great many particular symmetric key ciphers and key exchange algorithms, (the patent has 171 claims). Unlike most software patents, this one goes into quite a lot of detail about how the encryption is to be performed. But it will still be interesting to see if it can pass the 'machine or transformation' test now that In Re Bilski is being accepted as precedent. After all, it seems like all of these encryption and e-book distribution schemes could be run on a general-purpose PC, so is the 'invention' actually tied to a 'particular machine or apparatus' just because an e-book 'viewer' (not to mention 'home system', 'library', and 'kiosk') happens to be specified in the patent's claims? Or can the encryption of an e-book be claimed as some kind of 'transformation' when the law in that area is especially murky — when no one knows how In Re Bilski may affect the precedent of In Re Schrader?"
I think most of them are still compiling the application that will translate the summary for them.
Even if the patent covers patentable subject matter, it is going to have obvious problems. The Supreme Court changed the standard for obviousness in 2007 in the KSR case. Prior to that, new combinations were prima facie nonobvious. Under the new KSR standard, it is going to be difficult to maintain that: (known encryption algorithm) + (on an ebook reader) = nonobvious.
So you make a living in one particular way most of your life, then a disruptive technology comes along and wrecks everything.
It's sort of understandable that you'd react over defensively, yet along comes the next generation with different expectations. The world doesn't end as predicted for every single piece of technology ever devised.
Does DRM still linger after the original proponents are dead?
...so thick that you could cut it with a knife. Sell e-books with DRM to protect copyrights and violate a patent. Or sell without DRM without violating the patent and allow anyone to violate the copyrights. Anyone have anyway of pulling this on the record companies?
If the patent is upheld then amazon appears to have two choices, sell e-books without DRM and get yelled at by the author's guild or sell with DRM and have to pay licensing agreements. Should be fun to watch from the sidelines, the only problem is who do you cheer for?
Who in the world gave them a patent on ebooks in 2007? I could see it in 1999, but this sounds like one of those file then modify deals. I guess the patent office has never heard of a Rocketbook or Gemstar. I think the Rocketbook came out in 1998 and the Gemstar REB1100 with all the fancy DRM came out in 2001. I am pretty sure they were not the first. Lawyers and MBAs, there should be a bounty on them.
unless "transformation" applies solely to physical artifacts directly observable to human senses, or such senses augmented by things like microscopy etc.
DRM undoubtedly entails a transformation: from a digital object in unprotected form to one in protected form.
I think, though, the source of that sense of absurdity we all feel is that this is yet another attempt to patent a pre-existing technology when used for a range of its originally intended uses. Encryption technology exists, in part, to control when and how recipients of information use that information. DRM is just a specific instance of this.
Back in the 1990s there were tons of really insipid patents on using GPS to locate things in various contexts. They were stupid because GPS was a technology specifically designed to provide location data for various uses, e.g., navigating in the field, guiding bombs, etc. My boss used to come in about once a quarter and toss a sheaf of papers on my desk describing some GPS related patent he wanted me to look at. I'd pick it up and tell him to send it to the lawyers because (a) it was almost certainly one of those "use GPS in such and so context" patents which meant it was (b) almost surely improperly granted, but was (c) intended to shake down honest users of an obvious idea, which would (c) be a hell of a lot easier to do for us if I so much as glanced at the damned thing.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
The geek in me is so confused... Do I get mad at the company suing over patent infringement for a DRM scheme (so many bad things there it's hard to even know where to begin) or do I cheer for the Discovery Channel, which is one of the greatest channels on the air for a geek.
...
I'm so confused.
Help me Obi Wan. You're my
Sorry. Geek moment.
Big whoop that this patent has 171 claims. At a quick glance 168 of them are dependent claims. That means you find the main ones (1, 96, and 129) and look for holes there in what they claim. The other claims depend on those so they don't matter if you can break the parent.
Not really off-topic. The summary is as densely written as an English undergrad's essay on Derrida.
The kind that reading the paper or eating the paper gives the exact same effect.
You are welcome on my lawn.
If you read the article carefully (and then look into the actual patent a bit) its more apparent that the kindle violates some of the specific functionality of Discovery's DRM patent.
Discovery doesn't have a patent on ALL E-books that use ANY DRM scheme, just a specific (albeit verbose) one that Amazon has stepped on.
Unfortunately, this means Amazon will likely take the path of least resistance and just come up with a new method of DRM which doesn't violate Discoveries.
This is a hassle for anyone who anyone who has already purchased books from Amazon. But the likelyhood of Amazon releasing books without any DRM is a pipedream.
Politics will sooner or later make fools of everybody... - Dick Armey
I am patenting a method for obfuscating then posting story summaries. I plan to take down /. in one swell foop...fell swoop.
Bwahahahahahhaahahahahaha.
Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong fix.
The transformation arm of Bilski's machine or transformation test actually is limited to reasonably physical subject matter, or to data that represents underlying physical subject matter. An ebook DRM scheme counts as neither.
Bobb9000 - raised by the wolves,
Oxford education as phrased by the wolves.
Could Amazon issue a DMCA notice to the USPTO?
53 49 47 53 20 53 55 43 4B
Anyone have anyway of pulling this on the record companies?
That's easy: you just patent putting DRM on music.
Whether it's a business method patent or a software patent or a patent on the cryptographic math (x \mapsto x + 13) is irrelevant. Whether there's prior art is completely irrelevant.
(IANAL, but this interpretation of patent law seems to work fine in practice.)
(Discovery's complaint, PDF)
I wonder if it is DRMed....
But the data is encoded in physical matter. If I were arguing on the patent holder's side, I'd argue that the creation of specific physical forms for the data is intrinsic to the usage of a DRM format, therefore the process is "transformative".
This is in contrast to something that is an algorithm. In this case while some physical form is needed in order to communicate that algorithm, it does not matter whether that is paper or an optical CD or photons emitted by somebody's screen. The container is entirely irrelevant to the value of the content. No matter what the physical or logical properties of the container are, if I can open it I can still study the algorithm. The algorithm's value is entirely independent of its physical manifestation.
This, by the way, is EXACTLY how a purchaser of e-books feels about the physical manifestation of that e-book. But it is not how a producer of e-book reading software views the container. The properties of the container itself are important to him, and therefore (again arguing for the paintiff) the physical format is an economically valuable product. Economically significant transformations in such physical formats should then be eligible to be inventions.
Whether this argument is utter rot or not depends on whether intellectual property is utter rot or not. If cryptography had never existed before, then DRM would be an invention if anything qualified as an invention. Furthermore, non-obvious technological innovations that make DRM more practical would probably qualify too. It's just the "use the standard techniques that everybody in a field knows and apply them in a situation none of them have encountered yet" that is rubbish under any reasonable set of assumptions.
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It was granted a day after Kindle came out.. Case closed.
The patent also includes delivery of content to the portable device using a phone network (which Amazon has implemented as Whispernet). They'll probably be writing come serious checks.
I wonder if Amazon implemented Kindle in software for the iPhone to head off this claim.
-Peter
I'm torn between hoping that this software patent is invalidated since almost anything you can implement in software is obvious to those skilled in the trade, and hoping that this patent is upheld so that Amazon will have to remove the DRM or be otherwise punished for their using DRM to restict right of first sale and fair use.
Trying to figure out which side to support in this case is enough to make one's head explode!
The Christian Right is Neither (Christian nor right). See: Matthew 23, Matthew 25, Ezekiel 16:48-50
It implies that the DRM hinders the usability of the book.
It works fine on the Kindle.
You don't like that, don't buy a Kindle. I didn't.
Don't use sly word-play to express your political view of DRM.
This patent fails the obviousness test. Prior art is every notebook computer and tablet existing up to 1999, while cryptographic key exchange mechanisms predate that. If Discovery Channel could hold up their eBook reader actually built in 1999 next to a Kindle 2 and show the obvious similarities then they might have a case.
:^) These days too many people try to patent a perpetual money machine that they could have never actually built or sold themselves. The Patent Office should not be protecting that to the determent of the rest of us!
If they'd actually even sold even a single unit of what they patented (if they ever did it was such a miserable market failure that the rest of us have never seen or heard about it) then they might have a case.
If they could show contracts for content delivery to their device with commercial providers of telecommunications services then they might have a case.
If Discovery Channel could show where they went to Amazon with their patent application - or anyone else, for that matter - and said: "See what we have invented in our minds. Would you like to build it and we both get rich?" then they might have a case.
As I see it Discovery Channel is not, and never has been, in the eBook reader business. They never tried to license their design, nor build it themselves. They couldn't build at the time what they patented and it's a mystery why they even patented it at all since this is not, and never was, their business. Now they're just a big bunch of patent trolls, aided and abetted by an incompetent Patent Office. I hope Amazon challenges and overturns this patent. And I hope that Prior Art project gets involved.
If the Patent Office actually made you deliver a working model of what you were patenting then a lot of this garbage would go away immediately. Imagine a working model of a perpetual motion machine?
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
I doubt that this is really what the Founding Fathers had in mind when they created the Patent Office -
1. File overly broad patent on an idea, but never actually build a working product.
2. Sit on said patent until someone else does build a working product that's kinda sorta like the one described in your patent.
3. ???????
4. Profit!
First, whether the argument you're putting forward about physical transformation is valid does not depend on the originality of the invention; obviousness/anticipation and patentable subject matter are different analyses.
Anyway, I'm not sure I exactly understand the thrust of your argument. Are you saying that this should be patentable because its subject matter has economic significance, even though non-physical? That's not how patent law as it now stands works. Are you arguing that that's how it should work?
If I were representing the plaintiffs, I'd try to argue that this works a physical transformation of the underlying storage medium, making it more useful as a component in an ebook reader. However, I think this is a terrible argument, because carried to its logical conclusion, it would mean that anything is patentable, because it at least works a transformation of the neurons of my brain.
Bobb9000 - raised by the wolves,
Oxford education as phrased by the wolves.
No they won't, Gemstar was doing this in 2001 and it had DRM all over it. This is a bad patent and it needs to die.
The patent application was filed in 1999, so whatever Gemstar was doing in 2001 is not prior art and is thus irrelevant. Perhaps there is something publicly revealed earlier than 1999 which could invalidate the patent or reduce its coverage.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
> But the data is encoded in physical matter. If I were arguing on the patent holder's side, I'd argue that the creation of specific physical forms for the data is intrinsic to the usage of a DRM format, therefore the process is "transformative".
That's why I called the law there especially murky. Transformation is supposed to be purely physical (an "article" is purely physical, and it's supposed to become another "state or thing" afterward). So "transforming" bits on a hard drive shouldn't be a transformation at all... except for the exceptions they've made up, which are far less than crystal clear. There's a reason I linked to a description of the test, after all. You can't just apply common sense to the problem. You have to look at the legal precedent and controlling law and read all the words the way lawyers do and pull your hair out when you find out the issues have very little relation to the real world at that point.
So this case could very well set precedent. I don't imagine that it will make anything clearer and I'm sure that the lawyers will argue over this very point. But I'm not going to pretend to pick the winner on this one. It got cut from the final submission (either by myself or the editors, I don't recall), but I'm still hoping they can both lose in all the right ways.
- I Don't Believe in Imaginary Property
> There are about 30 device claims drawn to an e-book reader. Bilksi has absolutely no bearing on those; an e-book reader is definitely patentable subject matter, despite what IDontBelieve wants to believe.
For one, while it seems to have left the question of general purpose computers not being a 'particular machine' open, it also cast doubt upon it. I suppose that may have been dicta instead of holding, but it was encouraging. (And I've seen plenty of lawyers with diverging opinions, so I'm of the opinion that nobody really knows yet. You can easily guess what I hope will be the case.)
Next, I never said that the hardware wasn't patentable subject matter, only that all the software/DRM claims were questionable after Bilski. But the complaint isn't very clear at all. It just says "we think they infringe upon this patent... somehow." You're probably right that it's a terrible patent to bust. I honestly expect them to settle.
Even though hardware is patentable, have you seen their descriptions of it? I'm reading the complaint, and apparently computers are composed of little blocks like "LCD" and "power module" that aren't very specific. Other than the fact that it contains a DRM module (which are pretty common in lots of devices), they look like a pretty standard block diagram that's nearly equivalent to any number of things, including a general purpose laptop or desktop computer (seriously, other than the secure DRM chip, there's nothing in there that's not in a general computer, though God knows, that DRM chip may be enough to make it a 'particular machine') ...
But the hardware parts weren't really the focus of my submission (in fact, they weren't discussed), so I don't get where you came up with the idea that I don't think hardware can be patented. Give me some credit, okay?
Even so, did you look closely at those 'hardware' diagrams? You can see all this 'hardware' in the complaint (PDF). The block diagrams are, shall we say, far less than novel to anyone who knows what's inside a monitor or general purpose computer. Does it become a 'particular machine' just because I come out with a diagram that could describe just about any computer or game console? I hope we'll get some clarity soon on what (isn't) a 'particular machine'. Frankly, if they want a real circuit diagram, I need to see some specific devices (i.e. a '2N222', not a 'CPU' or 'data stripper').
About the only original things I see are the menus for the ebook service (they're bland and the sort of thing anyone might come up with, but I can reasonably believe they're original). Not having a Kindle, I have no idea if it might infringe upon those.
- I Don't Believe in Imaginary Property