People have been predicting micropayments for many, many years, and they haven't happened. Why? User hostile! People HATE being nickel-and-dimed. And since advertising isn't dead, content providers will stick with what (approximately) works. There will just be a more rational pool of advertising funds, so there will be a shakeout - which is perfectly normal.
If this means that some crappy sites don't survive, too bad!
Specialized PC devices have failed in the market time and time again. (Think NC/JavaStation, or i-Opener, or NetPC, or PCjr, or many others.) Why is now any different?
He's not perfect, however. Read this section, emphasis mine:
There is a way to protect copyrights in digitally broadcast TV programs, and to permit TV viewers to make copies TV programs for home use. The model is
contained in the current law. It is Section 1201(k) of the Digital Millennium Copyright Act. And that provision was adopted with respect to recording of analog
television broadcasts. The section requires VCRs to respond to macrovision, copy protection technology, and to block copying of rental movies that are encoded
with the macrovision marking. In exchange for this statutory mandate, TV viewers are granted the right to make unlimited copies of broadcasts that are made over
the air, and one copy for time shifting purposes, of premium television programming, which may only be aired one specific time.
So he IS in favor of at least some MANDATORY copy protection. To me this seems like a violation of certain fair-use rights! Still, he's otherwise on target.
A non RIAA artist should be able to apply to get the ban lifted in a second.
If this is true and enforceable, this could be a huge benefit of napster. Non RIAA artists should be able to take advantage of this new medium to get their names and music out! The EFF et al. should be prepared to fight any effort by the RIAA to block us from accessing non-RIAA music.
Max transfer speed? what a stupid idea. If they're trying to get people to pay for service, and particularly if you want them to pay a fee to put them on a disc, crippling it in this way is a great way to get 'em to switch to OpenNap, Gnutella, etc. Plus it reduces availability of service from all those out there who have high speed connections.
I would subscribe to the existing service, but not to this. Are you listening Shawn?!
InfoWorld used to have something called InfoQuote that let you ask for quotes on PC equipment and so on. I couldn't find it today - their website gets more user-hostile every time I visit.
This feature, if properly implemented, could increase your pageviews by double-digit percentages! I love it. Not "get rid of all ads," just "get rid of this ad."
If you need to you can put a limit on the number (e.g. 25) so people always see something, even if it's the Slashdot Cruiser...
In fact, you might even be able to [shudder] patent it!
INTELLECTUAL PROPERTY LAW
Patent This!
A landmark 1998 ruling led to a rush of Internet companies looking to corner the market on business methods adapted to cyberspace. Critics say it also let in a sideshow of
eccentric ideas, and now they are trying to close the door.
BY WILLIAM C. SMITH
One click. That's all it takes to buy a book--or to start a legal and political fight over the nature of patent law in the Internet age. With a single click of a
computer mouse, a book lover browsing Amazon.com can order Ginsberg's poems, Gunther's constitutional law treatise, Grisham's latest legal thriller or any
other of the thousands of tomes stocked by the nation's largest online bookseller. A millimeter's movement of the finger lets the buyer tell the company to
charge the purchase, yank the book from the shelves of one of its huge warehouses, and deliver the volume to the shopper's home.
The 1-Click button is the Web version of those tempting magazines, candies and similar impulse items by the checkout at supermarkets. The shopper sees and snatches the product
in a single stroke, without the second thoughts that stanch a sale.
That was the thinking of Amazon.com CEO Jeff Bezos, the e-commerce pioneer whose electronic retailing business made him a multimillionaire and prompted Time magazine to pick
him as its 1999 Man of the Year.
Bezos thought so much of his 1-Click checkout method that he marched to the U.S. Patent and Trademark Office. In September 1999, the PTO granted him U.S. Patent No. 5,960,411 for
his "method and system for placing a purchase order via a communications network."
His next stop: U.S. District Court in Seattle to file a patent infringement suit against Barnesandnoble. com, the Web site of bookstore chain Barnes & Noble, alleging that its
single-click Express Lane infringed the new 1-Click patent.
Three months later, the court slapped an injunction on Barnes & Noble, making Amazon the 1-Click king. Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228 (W.D. Wash.
1999).
Blazing the Litigation Trail
Patent litigation rarely makes headlines, even in the business section, but Amazon's lawsuit sparked flaming e-mails, incendiary Web sites and even a
sputtering consumer boycott.
Yet the critics should have been more alert back in 1998, when the U.S. Court of Appeals for the Federal Circuit, which hears patent appeals, paved the way for Bezos' suit with its
watershed decision, State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1360. The ruling, which allowed patents for long-verboten business methods, opened the
floodgates to a deluge of applications, mostly from Internet and software companies scampering to get into the market.
A March 12, 2000, article in The New York Times condemned the sea change in patent law. "Patents began in a world of machines and chemical processes," wrote critic James Gleick,
"a substantial, tangible, nuts-and-bolts world--but now they spread across a crucial boundary, into the realm of thought and abstraction."
Witness the firestorm over the Amazon suit, fanned by maverick Internet innovator and entrepreneur Tim O'Reilly. Once an editor of technology periodicals, O'Reilly of Sebastopol,
Calif., parlayed his publishing and technical know-how into a multimillion-dollar clearinghouse of books and journals on computers, software and the Internet. At the same time,
O'Reilly had established a cult reputation as a crusader against the commercialism of cyberspace.
With its controversial Internet patent, Amazon became O'Reilly's newest target. In a Feb. 29, 2000, open letter to Bezos on his Web site, O'Reilly blasted Bezos' patent as "one more
example of an 'intellectual property' milieu gone mad."
O'Reilly went on to describe patents on such software innovations as "a land grab, an attempt to hoodwink a patent system that has not gotten up to speed on the state of the art in
computer science." He ridiculed the 1-Click patent as "a classic example of the kind of software patent that would never be granted if the patent office had even the slightest clue
about software."
Slammin' Amazon
Internet users, consumer groups and politicians have taken similar potshots at Amazon in the wake of its lawsuit against Barnesandnoble.com.
A group called NoWebPatents.org invited Amazon boycotters to register at its Web site and disclose the amount of their canceled purchases. "Patents restrain competition and
should be granted with caution," says boycott organizer Tom Burns in a press release at the site, warning that the 1-Click patent "could place Amazon in the position of attempting to
own and control online commerce."
Nor are critics limited to new media prophets like O'Reilly. Congress was considering amending the patent statute last term to limit business-method patents on computer-related
applications. Had it been passed, the legislation would have followed the 1999 American Inventors Protection Act, which took direct aim at State Street by letting companies
challenge new patent applications if they too closely resembled methods that have been in use.
Although the passionate debate over business-method patents centers on the Net, it implicates legal principles dating back to the founding of the republic. Article I, Section 8, of the
Constitution authorizes Congress to "promote the progress of science and useful arts" by giving inventors the exclusive right to their creations. And under the patent statute,
Congress allowed patents of any "new and useful process, machine, manufacture or composition of matter," 35 U.S.C. 101.
America's patent system has benefited the public by providing inventors incentive to advance technology, says Q. Todd Dickinson, immediate-past director of the U.S. Patent and
Trademark Office. To earn a 17-year monopoly over a new product, an inventor must file a detailed application that "fully discloses the invention and allows others to build on the
[patented] technology," says Dickinson, who left the post when the Bush administration stepped in.
Over the years, the PTO has issued more than 5 million patents on inventions ranging from the historic--Edison's incandescent light bulb, patented in 1880--to the comedic--a
dog-powered scooter, patented last year. But then, Congress intended Section 101 to include "anything under the sun that is made by man," the U.S. Supreme Court famously
remarked in 1980. Although the range of patentable items may be extremely broad, it's not limitless. To qualify for patent protection, an invention must satisfy statutory requirements
of usefulness, novelty, nonobviousness, and adequacy of disclosure and notice.
The patent office and the courts have also drawn a line between manmade things and processes, which are presumptively patentable, and abstract ideas, which are not.
Until recently, inventions based on business methods or mathematical processes usually fell into the latter category. While the business-method exception was first spelled out
almost a century ago, the mathematical algorithm exception is of more recent vintage. But it sharply limits patents for software-based innovations. In 1972, the Supreme Court rejected
a patent for a program that converted decimal to binary numerals, a procedure essential to digital computer operations. The Court likened the process to "phenomena of nature,...
mental processes and abstract intellectual concepts that are not patentable." Gottschalk v. Benson, 409 U.S. 63.
The landmark State Street decision effectively swept away both the business-method and algorithm exceptions. The defendant, Signature Financial Group Inc., held the 1993 patent
for a computer program that ran a "hub and spoke" investment plan. After unsuccessfully negotiating for a license to use the system, State Street Bank sued Signature in federal
court in Boston.
In a 10-page decision that undid decades of doctrine, the Washington, D.C.-based Federal Circuit ruled that the algorithmic nature of a computer program does not bar a patent. As
long as the program is a practical application that "produces a useful, concrete and tangible result," it doesn't matter that the claimed invention merely involves inputting, calculating
and outputting numbers.
The Federal Circuit gave short shrift to the business-method doctrine, ruling that it never really existed. "The business-method exception has never been invoked by this court [or its
predecessor] to deem an invention unpatentable," the court noted breezily; prior cases that mentioned this "ill-conceived" notion were actually decided on other grounds.
In boardrooms and patent law firms across the country, State Street became the starter pistol for a mad dash to the patent office. Scores of companies filed patent applications for
new or existing business practices or Internet innovations that were previously assumed unpatentable. The number of business-method patents jumped from 39 in 1997 to 301 in
1999. The PTO says it received some 2,600 patent applications for computer-related business methods in 1999.
As the PTO approves these cyber-patents, critics worry about the future of the once litigation-free world of the Internet. They cite these developments:
Amazon laid legal claim to another commonplace Web feature with its patent on its system for allowing "affiliate" sites to refer customers for commissions.
Priceline.com patented its "reverse auction" technique, which allows consumers to name their price for airline tickets, hotel reservations and other items. Priceline sued Microsoft for
using a similar system on its Expedia travel site. The suit, filed in October 1999, was settled in January. According to reports, Expedia will continue its price-matching service but will
pay a royalty fee to Priceline.
Computer products retailer Egghead.com won a patent last April for its "method for supplying automatic status updates using electronic mail."
Just as scary to some lawyers was the patent awarded last April to Dallas-based Kernel Creations Ltd. for its PatentPro software, which creates a properly formatted, fully
submittable patent application without the need for an expensive patent attorney. "PatentPro is the only product in the world that can claim to have patented itself," boasted Kernel
CEO James Petruzzi, a patent attorney, in a press release.
But these patents are only a few of the multitude of Internet and business-method patents that have led critics to fault the PTO for approving "inventions" that are obvious, trivial or
simply representative of the Internet version of well-known business practices.
In calling for reform of the patent system, Rep. Rick Boucher, D-Va., ridiculed the PTO for granting the Priceline patent. There was nothing novel or nonobvious behind it except its
use in cyberspace, he insisted. "The market economy of the Western world and the theory of microeconomics is predicated on individuals setting a price at which they are willing to
purchase something."
Weak Spots in the System
Law professor Pamela Samuelson of the University of California, Berkeley, charges that the PTO "simply can't be competent in issuing [business-method] patents" because of
examiners' insufficient training and "woefully inadequate prior art"--the legal term for previously published descriptions of a patented invention. "Besides," she says, "the
Constitution was intended to allow patents for technology. And business methods aren't that."
Greg Aharonian of San Francisco, another longtime PTO critic, goes further, condemning the entire U.S. patent system as "intellectually corrupt." Aharonian, who publishes an
online patent newsletter, decries the "publicly sanctioned but privately ridiculed fiction that the average patent is novel [and] unobvious."
He says his own survey of recent patents shows the PTO's patent review "ignores a significant number of prior patents, let alone most nonpatent prior art."
Dickinson, who practiced patent law in San Francisco before taking the helm at the PTO, believes that reports of the imminent demise of the U.S. patent system are greatly
exaggerated. He dismisses claims that Internet patents threaten e-commerce or the free exchange of ideas about software technology.
"As every new technology has developed, there have been complaints that innovation is stifled by patents," he says. "Well, show me how--not with anecdotes but with broad
examples." Dickinson says patents actually encourage innovation by "increasing the prior art that is available to inventors" and ensuring that a "little guy with a great idea can
compete effectively."
The PTO issued more than 160,000 patents last year, but the ex-patent chief disputes that the office is stretched too thin to do its job. For the last quarter-century, he says, the overall
allowance rate for applications has remained steady at about 67 percent. Business-method patents are handled by Group 705--a special cadre of examiners with appropriate computer
science, engineering or other technical background--which has approved only 57 percent of applications.
The PTO recently launched a much-ballyhooed Business Method Patent Initiative, expanding its database of prior art and instituting a second-look policy whereby business-method
patents are reviewed by a second experienced examiner before issuance. Dickinson says this program has already reduced the Group 705 allowance rate to less than 40 percent.
The Bar Steps Up
Attacks on the patent system have rallied defenders from the established patent bar. In 1999, the ABA Intellectual Property Law Section passed a resolution supporting the
patentability of "computer-implemented inventions encompassing business methods, user interfaces, algorithms, performance enhancements, data structures, usability
enhancements or other inventions which have a beneficial result or other practical application."
Gregory J. Maier of Arlington, Va., a past IPL section chair, says critics highlight "a few inane patents" to portray the entire system "as a dysfunctional national disaster." The
argument that patents have escaped the tangible, nuts-and-bolts world is simply nonsense, he says.
"Patents have always existed in the realm of abstraction. There is no fundamental difference between a current patent that discloses and claims useful e-commerce software and
Samuel F.B. Morse's patent on the telegraph or Alexander Graham Bell's patent on the telephone, both issued in the 19th century and both surrounded by storms of controversy,
now forgotten."
Section chair-elect Charles P. Baker of New York City agrees, citing the section's formal opposition, expressed in a 2000 resolution, to "any amendment or interpretation [of Section
101] that excludes business methods from the class of statutory subject matter."
Baker dismisses calls for restrictions on business- method or software patents. The PTO's prior art files in these areas "may be less than perfect," he concedes, "but the office realizes
this and is doing its best to rectify the situation, both by hiring more knowledgeable examiners and by gathering more documentation."
Further, it's hardly in applicants' interest to snooker the PTO into issuing defective patents for commonplace business practices, he says. "Patent applicants are both interested in
getting valid patents and obligated by law to tell the office about the prior art that is closest to their invention," he says. "As a result, in most cases, even in rapidly developing areas,
the [PTO] has the most relevant art before it when it issues a patent."
Dillon, Colo., patent lawyer Carl Oppedahl agrees with Dickinson's claim that Internet patents encourage competition and innovation. "The patent system is one of only a very small
number of factors tending to level the playing field as between new, innovative companies and old, slow companies," Oppedahl says.
"Essentially," says Atlanta attorney Jeffrey R. Kuester, "we should simply let the patent system adjust to this new economy without trying to fix it." Kuester, chair of the IPL
section's Special Committee on Patents and the Internet, adds, "The whole world has had to adjust to this new communication medium, so why would we expect the patent system to
handle it overnight without a few bumps in the road?"
But despite the ire sparked by the onslaught of business-method patents, the controversy over Amazon's 1-Click patent created an unlikely alliance between two erstwhile
adversaries.
Following O'Reilly's February 2000 open letter, Bezos defended his action with a hard-headed business justification: Without patent protection of its business method, he argued,
Amazon could be taken over by another e-commerce business.
But Bezos also acknowledged the need to overhaul the patent system and suggested some basic reforms, among them building a database listing prior art. O'Reilly was intrigued.
Soon, the crusader and the capitalist began discussing how to use the Internet to fight spurious patents.
Nine months later, the pair joined other investors in launching BountyQuest, an online company that offers rewards to anyone who can find prior art on certain patents. BountyQuest
has offered rewards ranging from $10,000 to $40,000 for prior art on several controversial new patents, including Amazon's 1-Click, Priceline.com's reverse auction, SightSound's
Digital Download technology, and Double Click's banner advertising method. BountyQuest even offered a reward for information undermining its own patent on "an Internet-based,
broadcast reward service for finding prior art relevant to the validity of a patent."
In January, BountyQuest announced its first four $10,000 winners, whose findings included challenges to a method of online music sampling, a way to control access to an event
venue, and to single-chip network routers. The company says it has received 161 submissions since it began in October. San Diego patent lawyer Fred Berretta wishes the venture
well. The relevant prior art on business methods is seldom found in prior patents, the PTO's usual reference, he says. "To those of us in the trenches defending a client against
[business-method] patents, investigation of the other sources of prior art, such as published literature or evidence of prior use, becomes of paramount importance."
Adds Berretta: "Many patent lawyers are not adept at investigating these nonpatent sources of prior art, which can often require antlike persistence, particularly when dealing with
reluctant third-party witnesses."
For his part, Dickinson "would welcome any sources of prior art being made available" to patent examiners. He notes, though, that the current patent re-examination process allows
third parties to submit prior art directly to the PTO and to stay involved throughout the patent review process.
Meanwhile, Congress responded to the State Street ruling by passing the American Inventors Protection Act of 1999.
AIPA's most controversial provision is the "first inventor defense," which provides relief to companies that would have been prevented from gaining patents on their business
methods before 1998. The law creates an affirmative defense for a company charged with infringing "methods of doing or conducting business" if the company had been using the
method commercially for at least a year before the business alleging infringement filed the patent application.
AIPA also requires patent applications filed since Nov. 29 to be published for public comment. "Those who are critical of the patent office, and who claim that the examiner doesn't
have all relevant prior art available to him or her, can simply send it to the examiner," Oppedahl observes.
Unsatisfied with this legislative fix, Reps. Boucher and Howard L. Berman, D-Calif., introduced the Business Method Patent Improvement Act of 2000, H.R. 5364, in October. The bill
would have shifted the burden of proof on the validity of business-method patents to the applicant and created a presumption of obviousness where a computer is used to implement
a known business method.
The co-sponsors said their bill was meant to start a dialogue over patent law reform. Citing the 1-Click and reverse auction patents, Boucher called on his colleagues to "repair the
system before the PTO awards more monopoly power to people doing the patently obvious."
The bill died in the last Congress, but observers say the current Congress may consider a variety of patent reform measures.
To Samuelson, the best reform would be a statutory prohibition on business-method patents. However, she says such a ban is "politically unlikely since the most organized group on
this issue is the patent lawyers." Because business-method patents mean more business for the patent bar, they would never go along with such a drastic reform, she says. "Barring
that, the Berman bill is a step in the right direction."
Baker of the ABA's intellectual property section counters that Congress could better improve the patent system through appropriations rather than legislation. "If Congress is truly
concerned about avoiding PTO delays and ensuring good patents, they should give the PTO the money it needs.
"Congressional cutting of the patent office budget is all the more culpable," Baker says, "because the office is funded from fees paid by patent applicants," much of which is
"skimmed off" for other purposes. Thus, "The office does not have as many examiners as it should have to issue quality patents in a reasonable time."
"The only crisis we have is the real chance that Congress could overreact in response" to criticism of the PTO, says Atlanta's Kuester. "The patent system will adjust as it always
has adjusted to major changes in the past, but we must give it time."
New Technology, New Approach
Meanwhile, the two nonlawyers at the heart of the debate agree that a patent system designed for nuts-and-bolts inventions must be retooled for the digital age.
Bezos has criticized the PTO for having outdated prior art and otherwise failing to keep pace with technological innovation. He has promised to lobby for reforms leading to "fewer
patents of higher average quality with shorter lifetimes." In the meantime, his company is still suing over its 1-Click patent.
O'Reilly says he is not completely opposed to software patents, having filed a few himself. However, he would "make it much more rigorous" to earn a patent for a software
innovation. As a start, O'Reilly would impose stricter standards for obviousness and novelty. He would also put an affirmative duty on applicants to search for prior art.
Software that facilitates human communication through computers is "very, very close to speech," O'Reilly says, "and ideas about it spread equally rapidly."
"I don't personally see the social benefit of increasing the notion of property into the realm of the soft stuff that is the foundation of culture and communication."
Patently Obvious
Ingenuity is not a prerequisite when seeking PTO stamp
Critics charge business-method patents may cover patently obvious, commonplace or trivial "inventions." In introducing a patent reform bill in October, U.S. Rep. Howard Berman,
D-Calif., cited several curious patents recently awarded by the Patent and Trademark Office:
Inventor Edward Pechter of Valencia, Calif., for example, patented a "method of bra size determination by direct measurement of the breast." U.S. Patent No. 5,965,809; granted Oct.
12, 1999. In pertinent part, Pechter's pectoral procedure gauges cup size "by directly measuring with the tape the circumference of each unclothed breast from the beginning of the
breast mound at one side laterally to the parasternal area medially."
"Cats are not characteristically disposed toward voluntary aerobic exercise," according to Kevin Amiss and Martin Abbot. However, the two Virginians found that a laser beam can
motivate the most sluggish feline. Their patent, No. 5,443,036 (Aug. 22, 1995), covers a "method for inducing cats to exercise [by flashing a laser beam] onto the floor or wall or other
opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats and to any other animal with a
chase instinct."
Tiger Woods may have won the U.S. Open, but the golf phenom might lose in U.S. District Court if he infringes on Dale D. Miller's patented putting technique. Since April Fools'
Day 1997, Miller has had rights to a "putting method in which the golfer controls the speed of the putt and the direction of the putt primarily with the golfer's dominant throwing
hand, yet uses the golfer's nondominant hand to maintain the blade of the putter stable." Patent No. 5,616,089.
Similarly, Serena and Venus Williams could clobber Kevin and George Repper in a doubles match on a tennis court. The Reppers, though, could force a rematch in federal court if
the swinging sisters dared to appropriate their patented tennis stroke. As described in the abstract of patent No. 5,993,336 (Nov. 30, 1999), this technique consists of wearing
kneepads and swatting the ball "either while the covered knee is on the tennis court surface or just prior to the knee contacting the tennis court surface." This innovation "enables a
player to successfully return balls that otherwise are out of effective stroking reach," the patent claim concludes.
While declining to discuss individual patents, Q. Todd Dickinson, immediate-past PTO director, says the office doesn't have a "silliness standard" in evaluating applications.
"People pay their money, and they have a right to have their patents examined," he says.
The idea that after a couple
more upgrades of the backbone we'll have plenty of excess bandwith for every user to do whatever they want at a low flat rate is just naive.
The key word is "low." Customers always prefer flat rates. You're right in your subsequent comment, that ISPs will charge slightly higher fees due to the increased traffic per user - but to suggest that the ISP biz will suddenly move to usage-based pricing, against all trends to the contrary, is incorrect.
People have been suggesting this for years, usually in paranoid terms. Now as before, we have nothing to worry about.
1. Cost of backbone connectivity per user keeps getting cheaper (all that OC192/768 equipment on DWDM fiber makes adding capacity way cheap)
2. It's way too expensive to measure & bill this stuff. Maybe you can measure it - but just try to link it to a biller. Major pain in the butt - and for what? A few bucks? Not worth the investment.
3. P2P is a killer app for DSL. Why do you think Speakeasy was giving away Rios? It doesn't make sense to go after a leading reason people are buying your service in the first place...
I'd hate to imagine what happens to their stock if they fail.
I'm rather looking forward to it - when they fail! No reason to expect them to succeed where others haven't - for all the reasons that copy protection / DRM don't work. (i.e. people will always find some way to circumvent it.)
What about those minus symbols (diopters) they use in places like Lenscrafters these days? Can someone explain to me what, for example, -1.5 is in 20/xx?
Well, in an ideal world, telecommuting would work perfectly (and it does work quite well for me). But lots of people work better in person - and it's reasonable to assume that for those folks the location of the company is relevant in a career decision.
Many companies locate where they are precisely because of this factor. Sam Walton often commented on how his location in Bentonville, Ark. weeded out those who weren't willing to really commit to Wal-Mart. On the other side, the recent run-up (and subsequent crash) in downtown office rents in major cities had a lot to do with techs and dot-coms locating in cities to be closer to their employees. So it's definitely relevant.
Slashdot Mirror
Did anyone else notice that TechRepublic is giving MS advice on avoiding bad PR rather than asking MS to forget this stupid feature-not-a-bug?
If this means that some crappy sites don't survive, too bad!
Specialized PC devices have failed in the market time and time again. (Think NC/JavaStation, or i-Opener, or NetPC, or PCjr, or many others.) Why is now any different?
Dem. gets it?
There is a way to protect copyrights in digitally broadcast TV programs, and to permit TV viewers to make copies TV programs for home use. The model is contained in the current law. It is Section 1201(k) of the Digital Millennium Copyright Act. And that provision was adopted with respect to recording of analog television broadcasts. The section requires VCRs to respond to macrovision, copy protection technology, and to block copying of rental movies that are encoded with the macrovision marking. In exchange for this statutory mandate, TV viewers are granted the right to make unlimited copies of broadcasts that are made over the air, and one copy for time shifting purposes, of premium television programming, which may only be aired one specific time.
So he IS in favor of at least some MANDATORY copy protection. To me this seems like a violation of certain fair-use rights! Still, he's otherwise on target.
I bet this guy would be interested in hearing from /. members on this and other issues. Michael and Roblimo, go to it!
I know it's been said before, but: take a vacation to finish your code. Then hire a lawyer, refuse to work on the project, etc.
New York Times
Some job site
Some platimum credit card
Some nonprofit that did something about credit improvement
See, I remembered a bit...
if only we could add graphics to our responses...
If this is true and enforceable, this could be a huge benefit of napster. Non RIAA artists should be able to take advantage of this new medium to get their names and music out! The EFF et al. should be prepared to fight any effort by the RIAA to block us from accessing non-RIAA music.
I would subscribe to the existing service, but not to this. Are you listening Shawn?!
M4nd4t0ry mi55p311ing! I love it.
InfoWorld used to have something called InfoQuote that let you ask for quotes on PC equipment and so on. I couldn't find it today - their website gets more user-hostile every time I visit.
If you need to you can put a limit on the number (e.g. 25) so people always see something, even if it's the Slashdot Cruiser...
In fact, you might even be able to [shudder] patent it!
If you can't read it due to JavaScript crapola:
...
INTELLECTUAL PROPERTY LAW
Patent This!
A landmark 1998 ruling led to a rush of Internet companies looking to corner the market on business methods adapted to cyberspace. Critics say it also let in a sideshow of
eccentric ideas, and now they are trying to close the door.
BY WILLIAM C. SMITH
One click. That's all it takes to buy a book--or to start a legal and political fight over the nature of patent law in the Internet age. With a single click of a
computer mouse, a book lover browsing Amazon.com can order Ginsberg's poems, Gunther's constitutional law treatise, Grisham's latest legal thriller or any
other of the thousands of tomes stocked by the nation's largest online bookseller. A millimeter's movement of the finger lets the buyer tell the company to
charge the purchase, yank the book from the shelves of one of its huge warehouses, and deliver the volume to the shopper's home.
The 1-Click button is the Web version of those tempting magazines, candies and similar impulse items by the checkout at supermarkets. The shopper sees and snatches the product
in a single stroke, without the second thoughts that stanch a sale.
That was the thinking of Amazon.com CEO Jeff Bezos, the e-commerce pioneer whose electronic retailing business made him a multimillionaire and prompted Time magazine to pick
him as its 1999 Man of the Year.
Bezos thought so much of his 1-Click checkout method that he marched to the U.S. Patent and Trademark Office. In September 1999, the PTO granted him U.S. Patent No. 5,960,411 for
his "method and system for placing a purchase order via a communications network."
His next stop: U.S. District Court in Seattle to file a patent infringement suit against Barnesandnoble. com, the Web site of bookstore chain Barnes & Noble, alleging that its
single-click Express Lane infringed the new 1-Click patent.
Three months later, the court slapped an injunction on Barnes & Noble, making Amazon the 1-Click king. Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228 (W.D. Wash.
1999).
Blazing the Litigation Trail
Patent litigation rarely makes headlines, even in the business section, but Amazon's lawsuit sparked flaming e-mails, incendiary Web sites and even a
sputtering consumer boycott.
Yet the critics should have been more alert back in 1998, when the U.S. Court of Appeals for the Federal Circuit, which hears patent appeals, paved the way for Bezos' suit with its
watershed decision, State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1360. The ruling, which allowed patents for long-verboten business methods, opened the
floodgates to a deluge of applications, mostly from Internet and software companies scampering to get into the market.
A March 12, 2000, article in The New York Times condemned the sea change in patent law. "Patents began in a world of machines and chemical processes," wrote critic James Gleick,
"a substantial, tangible, nuts-and-bolts world--but now they spread across a crucial boundary, into the realm of thought and abstraction."
Witness the firestorm over the Amazon suit, fanned by maverick Internet innovator and entrepreneur Tim O'Reilly. Once an editor of technology periodicals, O'Reilly of Sebastopol,
Calif., parlayed his publishing and technical know-how into a multimillion-dollar clearinghouse of books and journals on computers, software and the Internet. At the same time,
O'Reilly had established a cult reputation as a crusader against the commercialism of cyberspace.
With its controversial Internet patent, Amazon became O'Reilly's newest target. In a Feb. 29, 2000, open letter to Bezos on his Web site, O'Reilly blasted Bezos' patent as "one more
example of an 'intellectual property' milieu gone mad."
O'Reilly went on to describe patents on such software innovations as "a land grab, an attempt to hoodwink a patent system that has not gotten up to speed on the state of the art in
computer science." He ridiculed the 1-Click patent as "a classic example of the kind of software patent that would never be granted if the patent office had even the slightest clue
about software."
Slammin' Amazon
Internet users, consumer groups and politicians have taken similar potshots at Amazon in the wake of its lawsuit against Barnesandnoble.com.
A group called NoWebPatents.org invited Amazon boycotters to register at its Web site and disclose the amount of their canceled purchases. "Patents restrain competition and
should be granted with caution," says boycott organizer Tom Burns in a press release at the site, warning that the 1-Click patent "could place Amazon in the position of attempting to
own and control online commerce."
Nor are critics limited to new media prophets like O'Reilly. Congress was considering amending the patent statute last term to limit business-method patents on computer-related
applications. Had it been passed, the legislation would have followed the 1999 American Inventors Protection Act, which took direct aim at State Street by letting companies
challenge new patent applications if they too closely resembled methods that have been in use.
Although the passionate debate over business-method patents centers on the Net, it implicates legal principles dating back to the founding of the republic. Article I, Section 8, of the
Constitution authorizes Congress to "promote the progress of science and useful arts" by giving inventors the exclusive right to their creations. And under the patent statute,
Congress allowed patents of any "new and useful process, machine, manufacture or composition of matter," 35 U.S.C. 101.
America's patent system has benefited the public by providing inventors incentive to advance technology, says Q. Todd Dickinson, immediate-past director of the U.S. Patent and
Trademark Office. To earn a 17-year monopoly over a new product, an inventor must file a detailed application that "fully discloses the invention and allows others to build on the
[patented] technology," says Dickinson, who left the post when the Bush administration stepped in.
Over the years, the PTO has issued more than 5 million patents on inventions ranging from the historic--Edison's incandescent light bulb, patented in 1880--to the comedic--a
dog-powered scooter, patented last year. But then, Congress intended Section 101 to include "anything under the sun that is made by man," the U.S. Supreme Court famously
remarked in 1980. Although the range of patentable items may be extremely broad, it's not limitless. To qualify for patent protection, an invention must satisfy statutory requirements
of usefulness, novelty, nonobviousness, and adequacy of disclosure and notice.
The patent office and the courts have also drawn a line between manmade things and processes, which are presumptively patentable, and abstract ideas, which are not.
Until recently, inventions based on business methods or mathematical processes usually fell into the latter category. While the business-method exception was first spelled out
almost a century ago, the mathematical algorithm exception is of more recent vintage. But it sharply limits patents for software-based innovations. In 1972, the Supreme Court rejected
a patent for a program that converted decimal to binary numerals, a procedure essential to digital computer operations. The Court likened the process to "phenomena of nature,
mental processes and abstract intellectual concepts that are not patentable." Gottschalk v. Benson, 409 U.S. 63.
The landmark State Street decision effectively swept away both the business-method and algorithm exceptions. The defendant, Signature Financial Group Inc., held the 1993 patent
for a computer program that ran a "hub and spoke" investment plan. After unsuccessfully negotiating for a license to use the system, State Street Bank sued Signature in federal
court in Boston.
In a 10-page decision that undid decades of doctrine, the Washington, D.C.-based Federal Circuit ruled that the algorithmic nature of a computer program does not bar a patent. As
long as the program is a practical application that "produces a useful, concrete and tangible result," it doesn't matter that the claimed invention merely involves inputting, calculating
and outputting numbers.
The Federal Circuit gave short shrift to the business-method doctrine, ruling that it never really existed. "The business-method exception has never been invoked by this court [or its
predecessor] to deem an invention unpatentable," the court noted breezily; prior cases that mentioned this "ill-conceived" notion were actually decided on other grounds.
In boardrooms and patent law firms across the country, State Street became the starter pistol for a mad dash to the patent office. Scores of companies filed patent applications for
new or existing business practices or Internet innovations that were previously assumed unpatentable. The number of business-method patents jumped from 39 in 1997 to 301 in
1999. The PTO says it received some 2,600 patent applications for computer-related business methods in 1999.
As the PTO approves these cyber-patents, critics worry about the future of the once litigation-free world of the Internet. They cite these developments:
Amazon laid legal claim to another commonplace Web feature with its patent on its system for allowing "affiliate" sites to refer customers for commissions.
Priceline.com patented its "reverse auction" technique, which allows consumers to name their price for airline tickets, hotel reservations and other items. Priceline sued Microsoft for
using a similar system on its Expedia travel site. The suit, filed in October 1999, was settled in January. According to reports, Expedia will continue its price-matching service but will
pay a royalty fee to Priceline.
Computer products retailer Egghead.com won a patent last April for its "method for supplying automatic status updates using electronic mail."
Just as scary to some lawyers was the patent awarded last April to Dallas-based Kernel Creations Ltd. for its PatentPro software, which creates a properly formatted, fully
submittable patent application without the need for an expensive patent attorney. "PatentPro is the only product in the world that can claim to have patented itself," boasted Kernel
CEO James Petruzzi, a patent attorney, in a press release.
But these patents are only a few of the multitude of Internet and business-method patents that have led critics to fault the PTO for approving "inventions" that are obvious, trivial or
simply representative of the Internet version of well-known business practices.
In calling for reform of the patent system, Rep. Rick Boucher, D-Va., ridiculed the PTO for granting the Priceline patent. There was nothing novel or nonobvious behind it except its
use in cyberspace, he insisted. "The market economy of the Western world and the theory of microeconomics is predicated on individuals setting a price at which they are willing to
purchase something."
Weak Spots in the System
Law professor Pamela Samuelson of the University of California, Berkeley, charges that the PTO "simply can't be competent in issuing [business-method] patents" because of
examiners' insufficient training and "woefully inadequate prior art"--the legal term for previously published descriptions of a patented invention. "Besides," she says, "the
Constitution was intended to allow patents for technology. And business methods aren't that."
Greg Aharonian of San Francisco, another longtime PTO critic, goes further, condemning the entire U.S. patent system as "intellectually corrupt." Aharonian, who publishes an
online patent newsletter, decries the "publicly sanctioned but privately ridiculed fiction that the average patent is novel [and] unobvious."
He says his own survey of recent patents shows the PTO's patent review "ignores a significant number of prior patents, let alone most nonpatent prior art."
Dickinson, who practiced patent law in San Francisco before taking the helm at the PTO, believes that reports of the imminent demise of the U.S. patent system are greatly
exaggerated. He dismisses claims that Internet patents threaten e-commerce or the free exchange of ideas about software technology.
"As every new technology has developed, there have been complaints that innovation is stifled by patents," he says. "Well, show me how--not with anecdotes but with broad
examples." Dickinson says patents actually encourage innovation by "increasing the prior art that is available to inventors" and ensuring that a "little guy with a great idea can
compete effectively."
The PTO issued more than 160,000 patents last year, but the ex-patent chief disputes that the office is stretched too thin to do its job. For the last quarter-century, he says, the overall
allowance rate for applications has remained steady at about 67 percent. Business-method patents are handled by Group 705--a special cadre of examiners with appropriate computer
science, engineering or other technical background--which has approved only 57 percent of applications.
The PTO recently launched a much-ballyhooed Business Method Patent Initiative, expanding its database of prior art and instituting a second-look policy whereby business-method
patents are reviewed by a second experienced examiner before issuance. Dickinson says this program has already reduced the Group 705 allowance rate to less than 40 percent.
The Bar Steps Up
Attacks on the patent system have rallied defenders from the established patent bar. In 1999, the ABA Intellectual Property Law Section passed a resolution supporting the
patentability of "computer-implemented inventions encompassing business methods, user interfaces, algorithms, performance enhancements, data structures, usability
enhancements or other inventions which have a beneficial result or other practical application."
Gregory J. Maier of Arlington, Va., a past IPL section chair, says critics highlight "a few inane patents" to portray the entire system "as a dysfunctional national disaster." The
argument that patents have escaped the tangible, nuts-and-bolts world is simply nonsense, he says.
"Patents have always existed in the realm of abstraction. There is no fundamental difference between a current patent that discloses and claims useful e-commerce software and
Samuel F.B. Morse's patent on the telegraph or Alexander Graham Bell's patent on the telephone, both issued in the 19th century and both surrounded by storms of controversy,
now forgotten."
Section chair-elect Charles P. Baker of New York City agrees, citing the section's formal opposition, expressed in a 2000 resolution, to "any amendment or interpretation [of Section
101] that excludes business methods from the class of statutory subject matter."
Baker dismisses calls for restrictions on business- method or software patents. The PTO's prior art files in these areas "may be less than perfect," he concedes, "but the office realizes
this and is doing its best to rectify the situation, both by hiring more knowledgeable examiners and by gathering more documentation."
Further, it's hardly in applicants' interest to snooker the PTO into issuing defective patents for commonplace business practices, he says. "Patent applicants are both interested in
getting valid patents and obligated by law to tell the office about the prior art that is closest to their invention," he says. "As a result, in most cases, even in rapidly developing areas,
the [PTO] has the most relevant art before it when it issues a patent."
Dillon, Colo., patent lawyer Carl Oppedahl agrees with Dickinson's claim that Internet patents encourage competition and innovation. "The patent system is one of only a very small
number of factors tending to level the playing field as between new, innovative companies and old, slow companies," Oppedahl says.
"Essentially," says Atlanta attorney Jeffrey R. Kuester, "we should simply let the patent system adjust to this new economy without trying to fix it." Kuester, chair of the IPL
section's Special Committee on Patents and the Internet, adds, "The whole world has had to adjust to this new communication medium, so why would we expect the patent system to
handle it overnight without a few bumps in the road?"
But despite the ire sparked by the onslaught of business-method patents, the controversy over Amazon's 1-Click patent created an unlikely alliance between two erstwhile
adversaries.
Following O'Reilly's February 2000 open letter, Bezos defended his action with a hard-headed business justification: Without patent protection of its business method, he argued,
Amazon could be taken over by another e-commerce business.
But Bezos also acknowledged the need to overhaul the patent system and suggested some basic reforms, among them building a database listing prior art. O'Reilly was intrigued.
Soon, the crusader and the capitalist began discussing how to use the Internet to fight spurious patents.
Nine months later, the pair joined other investors in launching BountyQuest, an online company that offers rewards to anyone who can find prior art on certain patents. BountyQuest
has offered rewards ranging from $10,000 to $40,000 for prior art on several controversial new patents, including Amazon's 1-Click, Priceline.com's reverse auction, SightSound's
Digital Download technology, and Double Click's banner advertising method. BountyQuest even offered a reward for information undermining its own patent on "an Internet-based,
broadcast reward service for finding prior art relevant to the validity of a patent."
In January, BountyQuest announced its first four $10,000 winners, whose findings included challenges to a method of online music sampling, a way to control access to an event
venue, and to single-chip network routers. The company says it has received 161 submissions since it began in October. San Diego patent lawyer Fred Berretta wishes the venture
well. The relevant prior art on business methods is seldom found in prior patents, the PTO's usual reference, he says. "To those of us in the trenches defending a client against
[business-method] patents, investigation of the other sources of prior art, such as published literature or evidence of prior use, becomes of paramount importance."
Adds Berretta: "Many patent lawyers are not adept at investigating these nonpatent sources of prior art, which can often require antlike persistence, particularly when dealing with
reluctant third-party witnesses."
For his part, Dickinson "would welcome any sources of prior art being made available" to patent examiners. He notes, though, that the current patent re-examination process allows
third parties to submit prior art directly to the PTO and to stay involved throughout the patent review process.
Meanwhile, Congress responded to the State Street ruling by passing the American Inventors Protection Act of 1999.
AIPA's most controversial provision is the "first inventor defense," which provides relief to companies that would have been prevented from gaining patents on their business
methods before 1998. The law creates an affirmative defense for a company charged with infringing "methods of doing or conducting business" if the company had been using the
method commercially for at least a year before the business alleging infringement filed the patent application.
AIPA also requires patent applications filed since Nov. 29 to be published for public comment. "Those who are critical of the patent office, and who claim that the examiner doesn't
have all relevant prior art available to him or her, can simply send it to the examiner," Oppedahl observes.
Unsatisfied with this legislative fix, Reps. Boucher and Howard L. Berman, D-Calif., introduced the Business Method Patent Improvement Act of 2000, H.R. 5364, in October. The bill
would have shifted the burden of proof on the validity of business-method patents to the applicant and created a presumption of obviousness where a computer is used to implement
a known business method.
The co-sponsors said their bill was meant to start a dialogue over patent law reform. Citing the 1-Click and reverse auction patents, Boucher called on his colleagues to "repair the
system before the PTO awards more monopoly power to people doing the patently obvious."
The bill died in the last Congress, but observers say the current Congress may consider a variety of patent reform measures.
To Samuelson, the best reform would be a statutory prohibition on business-method patents. However, she says such a ban is "politically unlikely since the most organized group on
this issue is the patent lawyers." Because business-method patents mean more business for the patent bar, they would never go along with such a drastic reform, she says. "Barring
that, the Berman bill is a step in the right direction."
Baker of the ABA's intellectual property section counters that Congress could better improve the patent system through appropriations rather than legislation. "If Congress is truly
concerned about avoiding PTO delays and ensuring good patents, they should give the PTO the money it needs.
"Congressional cutting of the patent office budget is all the more culpable," Baker says, "because the office is funded from fees paid by patent applicants," much of which is
"skimmed off" for other purposes. Thus, "The office does not have as many examiners as it should have to issue quality patents in a reasonable time."
"The only crisis we have is the real chance that Congress could overreact in response" to criticism of the PTO, says Atlanta's Kuester. "The patent system will adjust as it always
has adjusted to major changes in the past, but we must give it time."
New Technology, New Approach
Meanwhile, the two nonlawyers at the heart of the debate agree that a patent system designed for nuts-and-bolts inventions must be retooled for the digital age.
Bezos has criticized the PTO for having outdated prior art and otherwise failing to keep pace with technological innovation. He has promised to lobby for reforms leading to "fewer
patents of higher average quality with shorter lifetimes." In the meantime, his company is still suing over its 1-Click patent.
O'Reilly says he is not completely opposed to software patents, having filed a few himself. However, he would "make it much more rigorous" to earn a patent for a software
innovation. As a start, O'Reilly would impose stricter standards for obviousness and novelty. He would also put an affirmative duty on applicants to search for prior art.
Software that facilitates human communication through computers is "very, very close to speech," O'Reilly says, "and ideas about it spread equally rapidly."
"I don't personally see the social benefit of increasing the notion of property into the realm of the soft stuff that is the foundation of culture and communication."
Patently Obvious
Ingenuity is not a prerequisite when seeking PTO stamp
Critics charge business-method patents may cover patently obvious, commonplace or trivial "inventions." In introducing a patent reform bill in October, U.S. Rep. Howard Berman,
D-Calif., cited several curious patents recently awarded by the Patent and Trademark Office:
Inventor Edward Pechter of Valencia, Calif., for example, patented a "method of bra size determination by direct measurement of the breast." U.S. Patent No. 5,965,809; granted Oct.
12, 1999. In pertinent part, Pechter's pectoral procedure gauges cup size "by directly measuring with the tape the circumference of each unclothed breast from the beginning of the
breast mound at one side laterally to the parasternal area medially."
"Cats are not characteristically disposed toward voluntary aerobic exercise," according to Kevin Amiss and Martin Abbot. However, the two Virginians found that a laser beam can
motivate the most sluggish feline. Their patent, No. 5,443,036 (Aug. 22, 1995), covers a "method for inducing cats to exercise [by flashing a laser beam] onto the floor or wall or other
opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats and to any other animal with a
chase instinct."
Tiger Woods may have won the U.S. Open, but the golf phenom might lose in U.S. District Court if he infringes on Dale D. Miller's patented putting technique. Since April Fools'
Day 1997, Miller has had rights to a "putting method in which the golfer controls the speed of the putt and the direction of the putt primarily with the golfer's dominant throwing
hand, yet uses the golfer's nondominant hand to maintain the blade of the putter stable." Patent No. 5,616,089.
Similarly, Serena and Venus Williams could clobber Kevin and George Repper in a doubles match on a tennis court. The Reppers, though, could force a rematch in federal court if
the swinging sisters dared to appropriate their patented tennis stroke. As described in the abstract of patent No. 5,993,336 (Nov. 30, 1999), this technique consists of wearing
kneepads and swatting the ball "either while the covered knee is on the tennis court surface or just prior to the knee contacting the tennis court surface." This innovation "enables a
player to successfully return balls that otherwise are out of effective stroking reach," the patent claim concludes.
While declining to discuss individual patents, Q. Todd Dickinson, immediate-past PTO director, says the office doesn't have a "silliness standard" in evaluating applications.
"People pay their money, and they have a right to have their patents examined," he says.
Here's what the page has. Maybe someone could modify Mozilla to ignore this?
<noscript>
<META HTTP-EQUIV="refresh" CONTENT="0; URL=http://www.abanet.org/nojavascript.html">
</noscript>
The idea that after a couple more upgrades of the backbone we'll have plenty of excess bandwith for every user to do whatever they want at a low flat rate is just naive.
The key word is "low." Customers always prefer flat rates. You're right in your subsequent comment, that ISPs will charge slightly higher fees due to the increased traffic per user - but to suggest that the ISP biz will suddenly move to usage-based pricing, against all trends to the contrary, is incorrect.
People have been suggesting this for years, usually in paranoid terms. Now as before, we have nothing to worry about.
1. Cost of backbone connectivity per user keeps getting cheaper (all that OC192/768 equipment on DWDM fiber makes adding capacity way cheap)
2. It's way too expensive to measure & bill this stuff. Maybe you can measure it - but just try to link it to a biller. Major pain in the butt - and for what? A few bucks? Not worth the investment.
3. P2P is a killer app for DSL. Why do you think Speakeasy was giving away Rios? It doesn't make sense to go after a leading reason people are buying your service in the first place...
I'm rather looking forward to it - when they fail! No reason to expect them to succeed where others haven't - for all the reasons that copy protection / DRM don't work. (i.e. people will always find some way to circumvent it.)
What about those minus symbols (diopters) they use in places like Lenscrafters these days? Can someone explain to me what, for example, -1.5 is in 20/xx?
Yet another reason to turn off Java! (as if there weren't enough already)
1. Always select "printable" to ease readability
2. Always select "single-page format" to reduce necessary clicks (and artificial pageviews)
Bad news though: according to today's Times you'll see more of these .. an advertising trade group is standardizing on them.
http://news.cnet.com/news/0-1005-202-4930756.html
Many companies locate where they are precisely because of this factor. Sam Walton often commented on how his location in Bentonville, Ark. weeded out those who weren't willing to really commit to Wal-Mart. On the other side, the recent run-up (and subsequent crash) in downtown office rents in major cities had a lot to do with techs and dot-coms locating in cities to be closer to their employees. So it's definitely relevant.