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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.
...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.
Maybe, maybe not. It's not just a known encryption algorithm, it's DRM, so there's a process for getting and exchanging keys and so forth. If that process is fairly unique for this particular ebook reader, they may pass the obviousness test.
The real question is posed in the summary: is this a 'particular machine or apparatus' or is decrypting an e-book a 'transformation' process.
This is very similar Microsoft v. TomTom. Since the courts have yet to apply In Re Bilksi beyond the original case, we'll see how it gets applied. It maybe be a race between this case and Microsoft v. TomTom to see who gets to set further precedent in the application of the In Re Bilski ruling.
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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.
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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 it is fairly unique, then amazon's use of known encryption + eBook reader is unlikely to accidentally infringe. I'd love for them to argue against this patent while arguing in favor of one-click. It'll be like Microsoft insisting that "Internet Explorer" is just 2 words whereas "Windows" deserves trademark protection.
Do you even lift?
These aren't the 'roids you're looking for.
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
It's not quite the same thing. There is no 'obviousness' test in trademarks and trademarks need not even be unique. Take, for example, Morton's salt vs. Morton's The Steakhouse. Two different industries.
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The patent does cover patentable subject matter. 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.
Also, even the method claims are tied to an e-book reader, which is very likely a particular machine. Bilski left open the question of whether a general-purpose computer is a particular machine, but an e-book reader is hardly a general-purpose computer. I'd say the odds are pretty good all of these claims withstand Bilski (but if Amazon wants to retain me to argue otherwise, I'm game).
As for obviousness, with over 170 claims, chances are at least one of them passes muster (remember, since the patent issued, the claims are presumed valid, which means it's expensive and time-consuming to kill even one claim, much less 170). So the only real question is whether Amazon infringes the non-obvious claim or claims.
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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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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
Not on the Kindle. It's a totally mundane symmetric encryption algorithm; the key is generated from the serial number in the firmware. There's no key exchange, there are no certificates. It really is the equivalent of "AES using the serial number of the hardware", but with a less well known encryption algorithm and some obfuscation of the serial number.
GCHQ Quantum Insert installed. If only our tongues were made of glass, how much more careful we would be when we speak
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!
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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."
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.
To me it hinders my use of the Kindle,
Therefore I didn't buy it.
I honestly don't know if I would have bought it if it weren't DRM encumbered, but once I noticed that it was I stopped even considering it.
To me, DRM encumbered is the correct terminology. If it isn't for you, then YOU shouldn't use the phrase. That doesn't say anything about whether *I* should use the phrase.
I think we've pushed this "anyone can grow up to be president" thing too far.
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.
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What exactly does trademark protection have to do with patents?
Same department. You know, like... Birth, Marriage, and Death Records.
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Bilksi has absolutely no bearing on those; an e-book reader is definitely patentable subject matter, despite what IDontBelieve wants to believe.
Also, even the method claims are tied to an e-book reader, which is very likely a particular machine. Bilski left open the question of whether a general-purpose computer is a particular machine, but an e-book reader is hardly a general-purpose computer.
That's kinda freaky... you and morgan_greywolf did exactly the same thing.
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The real question is posed in the summary: is this a 'particular machine or apparatus' or is decrypting an e-book a 'transformation' process.
I already commented that I think it's a particular machine, so I won't repeat myself on that. But I don't think this will pass the "transformation" test. The Fed. Cir. said that a transformation has to transform actual matter, or it has to transform data that represent actual matter. In other words, you can only be one degree removed from real matter (if you're thinking that sounds arbitrary, I agree). All they're doing here is obfuscating text. I guess you could argue that the text represents words on a physical page, but I think that's a stretch.
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Agreed. Nobody knows about general-purpose computers.
Next, I never said that the hardware wasn't patentable subject matter, only that all the software/DRM claims were questionable after Bilski.
Ah, but there's the issue. You just said, in general, you thought the DRM software patent might be invalid. You didn't say anything about hardware claims, but you didn't say anything about method claims either. That's the fundamental thing that pretty much everybody on Slashdot misses about Bilski. It doesn't kill software claims, even if a general-purpose computer is not a "particular machine." It just means that all your software claims will have to be Beauregard claims (e.g., "A data storage medium connected to a computing device, the data storage medium including software instructions that, when executed, instruct the computing device to: ..."). Bilski does not touch those because they are not method claims, and Bilski only deals with method claims. I think it took like two weeks to get a court ruling on that after Bilski issued, and nobody was surprised. So bottom line, software claims are still viable post-Bilski , even if software method claims are dead.
I haven't looked at the hardware diagrams, but it sounds like they're approximately the kinds of block diagrams I put in my patent applications. You don't have to go into a whole lot of detail. Those devices are well-known in the art. You just have to tie it to enough hardware that you're not claiming an abstract idea. And again, the hardware is not necessarily the innovative part here. It's the software that you want to claim, so it's the software you need to enable. So high-level block diagrams of a computer are exactly what I would expect to see.
On the other hand, if an inventor wants me to file claims on innovative hardware, then yes, I'm going to tell him to bring me some schematics.
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