The title of the complaint is Certain Wireless Communication Equipment and Articles Therein. That description would apply to dozens, no: hundreds, of patent lawsuits in the world.
"The title of the complaint is 'State v. Jones'. That description would apply to dozens, no: hundreds, of criminal actions in the world."
Similar concept. The title is irrelevant, Subby. It simply identifies the general subject matter as a way of checking to see if you've got the right suit, because if you have a single digit typo in your case number, you might get "Balloon Dissection Devices" or "Olive Oil" or "Ground Fault Interrupters and Products". I'm not sure whether this was an attempt to spread FUD or simple ignorance, but either way, stop it.
Groklaw is referring to an erroneous instruction given by the jury foreman to the other jurors. He (wrongly) told them that software claiming to be prior art to features on the iPhone were only relevant if the code would run on the iPhone. Since all of the code submitted as prior art runs on other systems and thus doesn't run on the iPhone, he told the jury they could dismiss all the prior art claims out of hand without even having to look at it. So the jury never looked at the software prior art which was submitted at trial. Groklaw is just saying they should have.
That never actually happened, though. You're reading a few statements of Hogan out of context and putting them together to create a scenario that never occurred. It also doesn't explain why the patents and publications in the reexamination weren't before the jury.
"The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there."
(note he actually starts this sentence at 3:13, but I included the 26 seconds before it for context)
Well, for example, he never says "they could dismiss all the prior art claims out of hand without even having to look at it" as the GP said. The GP is actually taking two different statements by Hogan - one about skipping over some prior art to return to it later, and the one you quote about running code on different systems - and combining them out of context. See?
That always puzzled me as well. Stupid USB. Just have the female connector have 4 pins on both sides, the male connector with 4 pins on only one side. Hey look, it's a self orienting mechanical interconnect! Even cheaper than an 8 pin auto-orienter cable! Ah, but you couldn't prevent folks from duplicating the design so easily. Sometimes, it's like everyone's a moron but me.
Yeah, that must be it. I just have one question - if the female connector has 4 pins on both sides and the male connector has 4 pins on one side and a big honking metal shell on the other, then how do you avoid shorting out those 4 pins in the female connector with the shell of the male connector?
Erm, yes, how silly of them to not anticipate that Apple would require licensing for a goddamn power plug
It's not even that; they clearly tried to work within the licensing restrictions they knew would be in place, but Apple's response was completely unreasonable and it forced them to scrap the inclusion of the connector even though they probably had at least $10-$15 worth of margin built in to each unit to account for that.
If Apple can't be wooed to sell the details of EIGHT FUCKING COPPER TRACES for $10 a unit, then yes, FUCK APPLE.
It's not just eight fucking copper traces, but a chip that automatically detects orientation of the plug and reroutes signals between said traces so that pin 8 always acts like pin 8, even if you flip the plug and it's actually pin 1.
When a foreman tells the rest of the jury pool that he has patents and knows how they work and should therefore listen to him, even though it goes against the instructions, that is misconduct. Just saying. Several jurors, including the foreman himself have claimed this.
That's not misconduct, though. Just saying. Groklaw quotes Koh's decision on misconduct, which quotes the relevant law:
A “juror’s personal knowledge constitutes extraneous prejudicial information where the juror has personal knowledge regarding the parties or issues involved in the litigation.” Hard v. Burlington N. R.R. (Hard I), 812 F.2d 482, 486 (9th Cir. 1987). Jurors are expected to bring their own personal experiences with them into the courtroom, and may generally rely on their personal knowledge or past experiences when hearing the evidence, deliberating, and deciding their verdict so long as they do not have knowledge related to the specific case they are deciding. Id.
Hogan's personal knowledge of the patent system is not extraneous prejudicial information, because it is not personal knowledge regarding the parties or issues involved in the litigation - i.e. Samsung, Apple, or the patents at issue. He's entitled to rely on his personal knowledge of other experiences, provided they are not related to this specific case.
Continuing:
However, “[a]fter a verdict is returned a juror will not be heard to impeach the verdict when his testimony concerns his misunderstanding of the court’s instructions,” even where a juror would be able to “testify, objectively, of incidents tending to indicate that other jurors may have misunderstood the court’s instructions on the elements of the offense,” as “the inquiry would still concern the mental processes by which the jurors reached their decision and would therefore be barred by the nonimpeachment rule.” United States v. Stacey, 475 F.2d 1119, 1121 (9th Cir. 1973). Thus, a juror’s understanding of the Court’s instructions is not considered extraneous prejudicial information, and the Court cannot receive testimony on how the jurors understood or followed instructions. To do so would be to undermine the “crucial assumption” necessary for the functioning of our jury system. Parker, 442 U.S. at 73.
Alleged failure to follow the instructions is also not misconduct.
What Groklaw appears to be arguing is that the jurors should have done their own prior art research and found the patents and publications used by the USPTO in the reexamination. That would be clear misconduct, since it would be external research about facts specific to this case.
As near as I can find, it doesn't look like Samsung raised any of these references during the trial to show the patents were invalid. Why not?
A good chunk of Samsung's prior art evidence wrt phones (the violations they were fined $1b for - they were cleared of copying the iPad) was disallowed because they missed a filing deadline. Kinda defeated the whole purpose of having the trial IMHO, but Judge Koh decided her schedule was more important.
1) Not any of the ones mentioned in the reexamination. The "good chunk of Samsung's prior art evidence" were several prototype phones owned by Samsung. The reexamination involves several prior art publications and patents, not prototype phones. So, again, why weren't these publications and patents brought up in trial?
2) The disallowed evidence was because no party in a litigation is allowed to keep evidence secret to spring on the other side on the eve of trial... and particularly where that evidence is the party's own prototypes, business records, etc. They can't really claim they had no knowledge of them and just found them. Instead, it was "we'll keep this secret and surprise everyone with it at the last second so that they can't defend it". That's allowed in movies and television (for example, the letters to Santa in Miracle on 34th St.) but not allowed in reality. It's not Judge Koh deciding her schedule was more important, it's the Supreme Court deciding that trials should be fair and impartial and not allow one side to spring things on the other.
blockquote>
Wasn't Groklaw complaining just a few days ago that the jury foreman brought in external evidence, and therefore committed misconduct? And now, Groklaw is saying the jury should have conducted its own prior art search and brought in external evidence that wasn't raised by Samsung? What is it, the rules don't apply if it hurts Apple?
Groklaw is referring to an erroneous instruction given by the jury foreman to the other jurors. He (wrongly) told them that software claiming to be prior art to features on the iPhone were only relevant if the code would run on the iPhone. Since all of the code submitted as prior art runs on other systems and thus doesn't run on the iPhone, he told the jury they could dismiss all the prior art claims out of hand without even having to look at it. So the jury never looked at the software prior art which was submitted at trial. Groklaw is just saying they should have.
That never actually happened, though. You're reading a few statements of Hogan out of context and putting them together to create a scenario that never occurred. It also doesn't explain why the patents and publications in the reexamination weren't before the jury.
The claims were rejected under 35 U.S.C. 102 and 103 based on U.S. Patent No. 7,724,242 to Hillis et al. (“Hillis”), International Pub. No. WO 03/081458 to Lira (“Lira”), U.S. Patent No. 6,757,673 to Makus et al. (“Makus”), Japanese Pub. No. 2000-163031A to Nomura et al. (English translation) (“Nomura”), and Dean Harris Rubine, “The Automatic Recognition of Gestures,” CMU-CS-91-202, December 1991 (“Rubine”).
As near as I can find, it doesn't look like Samsung raised any of these references during the trial to show the patents were invalid. Why not?
Additionally, Groklaw says:
The goofball jury, of course, thought it was a simply wonderful patent infringed every which way by Samsung...
Here's the verdict [PDF] form the jury signed off on after a nonchalant few hours of deliberations, which apparently did not include spending effort on whether or not this was a valid patent.
The most important part of this news isn't that the jury's work was a farce.
Wasn't Groklaw complaining just a few days ago that the jury foreman brought in external evidence, and therefore committed misconduct? And now, Groklaw is saying the jury should have conducted its own prior art search and brought in external evidence that wasn't raised by Samsung? What is it, the rules don't apply if it hurts Apple?
That's a "relative lack of victory in the court of law"?
Yes, I think overall it is a loss. At this point Apple may well be approaching that figure on legal fees.
... in terms of legal fees paid by Apple since 1975? Maybe. That particular case? No... Patent litigation is expensive - I know, because I'm working on one right now (ugh) - but you're off by an easy two orders of magnitude. They've probably spent around $5-10 million on that case.
start sending probes in the direction of planets like this with enough ingredients on them to help kickstart life on other worlds that can support it. It wont affect us...
It won't affect us? Here's a way it could affect us: The life we seeded grows, fast! It grows up faster than we expected and evolves at an exponential rate. Within 200 years it develops a space program then decides to pay us a visit with huge guns.
And then we surrender like good little doobies, because there's no point in fighting something that evolves from protozoa to interstellar space-faring civilization in 200 years. Fortunately, at that rate, we'll only have a couple years in slavery and they'll have evolved past us to the point where they won't care and will set us free again.
Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.
According to NewYorkCountryLawyer, she didn't have to show she didn't distribute. The "making available argument" has been shot down as bunk by the judge, and no evidence of distribution was ever shown, so the damages they are trying to award have nothing to do with distribution.
I'm inclined to believe him over you.
Feel free. Mind you, you should be sure what you're arguing about. For example, I'm not making any arguments about "making available". Thomas distributed to at least one person - the MediaSentry investigator - and that instance of distribution was shown. In fact, it's what Thomas' liability for infringement is based on.
Here's a tip - rather than "believing NYCL" or even "believing me", go read the judgement for yourself. NYCL helpfully has them posted on his site.
Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work.
The cost of a distribution license? Which is arbitrarily set by RIAA member companies to be whatever the fuck they want?
Nope, in this case, statutory damages are set by Congress. And they happen to be in line with what the RIAA member companies have set. Maybe there's a corruption issue there, but it's not a constitutional issue.
Not only is it ridiculous, it's a goddamn lie. The terms of Apple's deal with the record companies are public knowledge, after lawsuits revealed the details. For every $0.99 song, Apple gets $0.29. The remaining $0.70 goes to the record company. Of that $0.70, the record company pays 3% to the producer and 12% to the artist, so the record company keeps $0.595 cents per paid iTunes download. And THAT is the cost of the distribution license. That right there.
... if you're a reputable seller with an established track record. If you're not - if you're setting up your new online music store to compete with iTunes, then the record companies are going to have all sorts of mandatory minimums to avoid you giving away content for free and saying "your 59.5% royalty on my $0 in sales is $0, so here's your check for $0". Instead, there will be sliding scales with royalty rates decreasing as you sell more copies, and mandatory monthly minimum payments regardless of number of copies sold.
So, yeah, the statutory damages range is around the cost of a distribution license.
Now, here's the thing - you point out, correctly, that statutory damages are pure fiction (although they're based on that reasonable range for a distribution license). Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.
If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income?
Yes, that's why car insurance is compulsory in this country. It's also why we have a national health service. It's also why there's an "uninsured drivers fund" to cover the losses caused to someone by an (illegally) uninsured driver.
So, if Thomas had lawsuit insurance, she could get out of paying this. The whole point is compensating you for your medical bills, or Capitol Records for their lost royalties from her distribution. That it's painful for me to buy insurance or painful for Thomas to pay royalties is irrelevant, since we're the wrongdoers.
Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.
As I said, loss of 4-5 years' gross income feels pretty fucking punitive. That may not be intended, but it's the bitter reality.
"Punitive" has a specific legal meaning and it only applies to damages that are awarded as punishment for wrongdoing. They're related to how evil the defendant's act was, and not how badly the plaintiff was damaged. Compensatory damages could be huge and feel like punishment, but they're not - they're solely related to how badly the plaintiff was hurt by the defendant's actions.
Anyway...
to compensate the copyright owner for their lost distribution licensing revenue
Their lost revenue was somewhere between $0 and $1000, depending how many people received the distributed material. Proven losses are at the lower end of that scale. A proportionate award for damages would likely have have been paid; a $220,000 one probably never will.
Not at all. Michael Jackson paid about $273k for distribution rights for each of 4000 Beatles songs. $222k is certainly in that ballpark. If Thomas wanted to set up an online record store like iTunes, she wouldn't be paying Capitol a single dollar, or even $1000... She'd be purchasing a distribution license, which could well be tens of thousands or hundreds of thousands of dollars per song, depending on popularity. But, rather than negotiating for that license, she just went ahead and distributed the songs anyway... and we're supposed to be sympathetic to her now?
Except that the statutory damages are compensatory in nature, not punitive.
Loss of four or five years' gross income feels like a pretty cruel punishment to me.
If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income? No - that's the difference between compensatory damages, or damages that compensate you for your loss, and punitive damages, or damages that are tacked on as additional punishment.
Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.
Note the RIAA has never published music, and is not a music publisher so should have no right to fine uploaders/distributors/publishers
They represent some of the Music Publishers in the USA, but not all of them, and not all music publishers across the world
But they will and have tried to prosecute people for uploading material where the copyright is not owned by the people they represent, even outside the USA
No, they haven't. The RIAA has never been a party in these suits - it's Capitol Records v. Thomas, and Sony v. Tenebaum. They're all members of the RIAA, but your argument about lack of standing is false.
Prove that Jammie ever uploaded a complete file to someone who did not posses a license to the copyright for those songs.
If I download songs for a CD that I own, am I infringing? Was the person uploading the songs to me infringing, provided I own the CD that the very songs I am downloading exist in some form on?
Yes, if the person who uploaded the song to you didn't have a distribution license. In any transfer, there are potentially two infringers - the uploader, who distributed, and the downloader, who made a copy. In your hypothetical, you have a reasonable argument that you have an implied license to make a copy (basically, you have a right to format shift from your copy, so this is format shifting-by-proxy). But, the person who distributed the work to you didn't have a license. Thomas never approached Capitol Records and said "I want to set up a competing store to Apple's iTunes store, and here's my money for a distribution license," but effectively did it anyway. Why should she be able to distribute a work without paying royalties?
The difference is downloading isn't providing copyrighted materials to others. Where as uploading is. Legality of downloading could be argued, but would only be one count per download. The illegality of uploading copyrighted material is known, and get one count per upload. So, yes. The damages should be different. Now, that doesn't mean I agree with the way the system is currently set up.
Not quite - the count is "per work infringed", not "per infringing copy", so you don't multiply the counts by the number of uploads or downloads. However, you're right that there's a huge difference between uploading and downloading: if you only download once, you actually have a reasonable damage-mitigation argument that you only owe the copyright owner $1 for the song. If you upload, however, you owe them the cost of a distribution license... which could be tens or hundreds of thousands (for example, Michael Jackson bought the distribution rights to a bunch of Beatles' songs for around $100k each). When Apple is paying that much in royalties to be able to distribute the latest Katy Perry song on iTunes, for example, it's tough for a defendant to argue that they should be able to also distribute it but only owe $1.
I didn't read the case, but if the summary is correct, they're making the wrong argument. SCOUTS will say that Congress established the law and that if the law is being followed then Due Process is served.
They should be making a case that the statutory damages constitute 'unusual punishment' and are far outside all other punitive damage amounts ever considered by copyright law in precedent (because Congress has been bought off).
Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work. Accordingly, Congress was within its Article 1, Sec. 8 powers to set those levels, and they're constitutional.
The better argument is that the RIAA and MPAA are twisting the definition of "willful" infringement to conflate two of the statutory levels of damages: statutory damages are "up to $200" for innocent infringement, where you honestly believe that the work is not under copyright (e.g. if you didn't know that P.D.Q. Bach was Peter Schikele and thought he really was a son of J.S. Bach and has been dead for hundreds of years); "from $750 to $30,000" for 'normal' infringement; and "up to $150,000" for 'willful' infringement. The RIAA has argued that 'willful' means 'anything that's not innocent', and they end up removing that middle range of damages. That's contrary to Congress' intention.
Thing is, it hasn't come up yet as an argument, because Thomas and Tenenbaum and others keep arguing that all statutory damages are punitive, or that they have fair use rights, or that there's an implied exception for non-commercial infringement, and none of those arguments have been successful. They haven't raised the $750-30k range argument because, in their eyes, they shouldn't have to pay anything, so even a few thousand is a "loss". As a result, the judges hearing these cases only have the RIAA's argument for willfulness, and with nothing to the contrary in front of them, they side with it.
... so before everyone goes complaining about prior art existing and how the USPTO must be off their rocker to allow this, it hasn't been allowed yet. It hasn't even been examined. It was applied for 18 months ago, and all patent applications are published after 18 months. It'll probably be first examined sometime next year, with the current backlog.
It may have been some randoms doing DMCA illegally:
FTFA:
Update: Yesitis.org now points to a parked page. Yet another sign that these notices may be fraudulent, and not authorized by the copyright holders at all. If that’s indeed the case it remains unclear what the purpose of these notices is. It would show how easily these DMCA notices can be abused.
No. The latter is the State taking away property rights from everyone else; in this case due process must be applied in the reverse direction to make the analogy work. Without the granted patent, no one loses access to the 'property' in question.
Patents are property, and just like any other property, there's a right to exclude others - by saying that your house is yours, the state is taking away property rights from everyone else who wants to go in your house without your permission... Are you saying that due process requires we take away everyone's homes unless they can prove validity of their deed?
The relevant statute is 35 USC 102, which states that a person is entitled to a patent unless certain conditions are met. That means that the government is obligated to grant the patent, unless they can prove the existence of those conditions. If you don't like the law, then lobby to change it, but the law and due process currently require the presumption of validity.
Given the general ridiculousness of patents, the propensity of large companies like Apple (by no means the only offender, but the one in question in this case) to submit patent applications on trivial things, and the VERY long history of wireless energy transfer at this point, I feel that the default position is that the patent should have never been awarded or even applied for and the onus is on anyone else claiming otherwise.
And given how criminals tend to be, well, criminal, the default position is that they're guilty and the onus is on them to prove their innocence. I mean, who cares about due process?
One is the state making accusations of wrongdoing against an entity, with monetary or restrictive consequences.
The other is an entity petitioning the state to recognize and grant them a temporary monopoly, with monetary rewards potentially enforced by the state against other entities.
Actually, the latter is also the state making a quasi-judicial decision to deny property rights to an inventor. The due process requirement absolutely applies.
Slashdot Mirror
The title of the complaint is Certain Wireless Communication Equipment and Articles Therein. That description would apply to dozens, no: hundreds, of patent lawsuits in the world.
"The title of the complaint is 'State v. Jones'. That description would apply to dozens, no: hundreds, of criminal actions in the world."
Similar concept. The title is irrelevant, Subby. It simply identifies the general subject matter as a way of checking to see if you've got the right suit, because if you have a single digit typo in your case number, you might get "Balloon Dissection Devices" or "Olive Oil" or "Ground Fault Interrupters and Products". I'm not sure whether this was an attempt to spread FUD or simple ignorance, but either way, stop it.
Groklaw is referring to an erroneous instruction given by the jury foreman to the other jurors. He (wrongly) told them that software claiming to be prior art to features on the iPhone were only relevant if the code would run on the iPhone. Since all of the code submitted as prior art runs on other systems and thus doesn't run on the iPhone, he told the jury they could dismiss all the prior art claims out of hand without even having to look at it. So the jury never looked at the software prior art which was submitted at trial. Groklaw is just saying they should have.
That never actually happened, though. You're reading a few statements of Hogan out of context and putting them together to create a scenario that never occurred. It also doesn't explain why the patents and publications in the reexamination weren't before the jury.
What was taken out of context?
http://www.youtube.com/watch?v=c9cnQcTC2JY#t=2m50s
"The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there."
(note he actually starts this sentence at 3:13, but I included the 26 seconds before it for context)
Well, for example, he never says "they could dismiss all the prior art claims out of hand without even having to look at it" as the GP said. The GP is actually taking two different statements by Hogan - one about skipping over some prior art to return to it later, and the one you quote about running code on different systems - and combining them out of context. See?
That always puzzled me as well. Stupid USB. Just have the female connector have 4 pins on both sides, the male connector with 4 pins on only one side. Hey look, it's a self orienting mechanical interconnect! Even cheaper than an 8 pin auto-orienter cable! Ah, but you couldn't prevent folks from duplicating the design so easily. Sometimes, it's like everyone's a moron but me.
Yeah, that must be it. I just have one question - if the female connector has 4 pins on both sides and the male connector has 4 pins on one side and a big honking metal shell on the other, then how do you avoid shorting out those 4 pins in the female connector with the shell of the male connector?
Well that's just being "clever" for the sake of it. Why can't they just use a simple, keyed, connector - I mean, apart from the obvious?
Because you can't flip over a keyed connector, which is why we all know the fail-flip-fail-flip-succeed routine of USB.
Erm, yes, how silly of them to not anticipate that Apple would require licensing for a goddamn power plug
It's not even that; they clearly tried to work within the licensing restrictions they knew would be in place, but Apple's response was completely unreasonable and it forced them to scrap the inclusion of the connector even though they probably had at least $10-$15 worth of margin built in to each unit to account for that.
If Apple can't be wooed to sell the details of EIGHT FUCKING COPPER TRACES for $10 a unit, then yes, FUCK APPLE.
It's not just eight fucking copper traces, but a chip that automatically detects orientation of the plug and reroutes signals between said traces so that pin 8 always acts like pin 8, even if you flip the plug and it's actually pin 1.
When a foreman tells the rest of the jury pool that he has patents and knows how they work and should therefore listen to him, even though it goes against the instructions, that is misconduct. Just saying. Several jurors, including the foreman himself have claimed this.
That's not misconduct, though. Just saying. Groklaw quotes Koh's decision on misconduct, which quotes the relevant law:
A “juror’s personal knowledge constitutes extraneous prejudicial information where the juror has personal knowledge regarding the parties or issues involved in the litigation.” Hard v. Burlington N. R.R. (Hard I), 812 F.2d 482, 486 (9th Cir. 1987). Jurors are expected to bring their own personal experiences with them into the courtroom, and may generally rely on their personal knowledge or past experiences when hearing the evidence, deliberating, and deciding their verdict so long as they do not have knowledge related to the specific case they are deciding. Id.
Hogan's personal knowledge of the patent system is not extraneous prejudicial information, because it is not personal knowledge regarding the parties or issues involved in the litigation - i.e. Samsung, Apple, or the patents at issue. He's entitled to rely on his personal knowledge of other experiences, provided they are not related to this specific case.
Continuing:
However, “[a]fter a verdict is returned a juror will not be heard to impeach the verdict when his testimony concerns his misunderstanding of the court’s instructions,” even where a juror would be able to “testify, objectively, of incidents tending to indicate that other jurors may have misunderstood the court’s instructions on the elements of the offense,” as “the inquiry would still concern the mental processes by which the jurors reached their decision and would therefore be barred by the nonimpeachment rule.” United States v. Stacey, 475 F.2d 1119, 1121 (9th Cir. 1973). Thus, a juror’s understanding of the Court’s instructions is not considered extraneous prejudicial information, and the Court cannot receive testimony on how the jurors understood or followed instructions. To do so would be to undermine the “crucial assumption” necessary for the functioning of our jury system. Parker, 442 U.S. at 73.
Alleged failure to follow the instructions is also not misconduct.
What Groklaw appears to be arguing is that the jurors should have done their own prior art research and found the patents and publications used by the USPTO in the reexamination. That would be clear misconduct, since it would be external research about facts specific to this case.
A good chunk of Samsung's prior art evidence wrt phones (the violations they were fined $1b for - they were cleared of copying the iPad) was disallowed because they missed a filing deadline. Kinda defeated the whole purpose of having the trial IMHO, but Judge Koh decided her schedule was more important.
1) Not any of the ones mentioned in the reexamination. The "good chunk of Samsung's prior art evidence" were several prototype phones owned by Samsung. The reexamination involves several prior art publications and patents, not prototype phones. So, again, why weren't these publications and patents brought up in trial?
2) The disallowed evidence was because no party in a litigation is allowed to keep evidence secret to spring on the other side on the eve of trial... and particularly where that evidence is the party's own prototypes, business records, etc. They can't really claim they had no knowledge of them and just found them. Instead, it was "we'll keep this secret and surprise everyone with it at the last second so that they can't defend it". That's allowed in movies and television (for example, the letters to Santa in Miracle on 34th St.) but not allowed in reality. It's not Judge Koh deciding her schedule was more important, it's the Supreme Court deciding that trials should be fair and impartial and not allow one side to spring things on the other.
blockquote>
Wasn't Groklaw complaining just a few days ago that the jury foreman brought in external evidence, and therefore committed misconduct? And now, Groklaw is saying the jury should have conducted its own prior art search and brought in external evidence that wasn't raised by Samsung? What is it, the rules don't apply if it hurts Apple?
Groklaw is referring to an erroneous instruction given by the jury foreman to the other jurors. He (wrongly) told them that software claiming to be prior art to features on the iPhone were only relevant if the code would run on the iPhone. Since all of the code submitted as prior art runs on other systems and thus doesn't run on the iPhone, he told the jury they could dismiss all the prior art claims out of hand without even having to look at it. So the jury never looked at the software prior art which was submitted at trial. Groklaw is just saying they should have.
That never actually happened, though. You're reading a few statements of Hogan out of context and putting them together to create a scenario that never occurred. It also doesn't explain why the patents and publications in the reexamination weren't before the jury.
The claims were rejected under 35 U.S.C. 102 and 103 based on U.S. Patent No. 7,724,242 to Hillis et al. (“Hillis”), International Pub. No. WO 03/081458 to Lira (“Lira”), U.S. Patent No. 6,757,673 to Makus et al. (“Makus”), Japanese Pub. No. 2000-163031A to Nomura et al. (English translation) (“Nomura”), and Dean Harris Rubine, “The Automatic Recognition of Gestures,” CMU-CS-91-202, December 1991 (“Rubine”).
As near as I can find, it doesn't look like Samsung raised any of these references during the trial to show the patents were invalid. Why not?
Additionally, Groklaw says:
The goofball jury, of course, thought it was a simply wonderful patent infringed every which way by Samsung...
Here's the verdict [PDF] form the jury signed off on after a nonchalant few hours of deliberations, which apparently did not include spending effort on whether or not this was a valid patent.
The most important part of this news isn't that the jury's work was a farce.
Wasn't Groklaw complaining just a few days ago that the jury foreman brought in external evidence, and therefore committed misconduct? And now, Groklaw is saying the jury should have conducted its own prior art search and brought in external evidence that wasn't raised by Samsung? What is it, the rules don't apply if it hurts Apple?
This is the patent that won Apple their billion dollar verdict against Samsung.
That's weird, I remember the jury verdict citing six patents. Pinch to zoom was one of them but surely it was only a fraction of the full billion?
Remember when Slashdot was just news and not someone trying to insert a questionable-at-best opinion into a story?
... no. :/
Over $1 billion.
That's a "relative lack of victory in the court of law"?
Yes, I think overall it is a loss. At this point Apple may well be approaching that figure on legal fees.
... in terms of legal fees paid by Apple since 1975? Maybe. That particular case? No... Patent litigation is expensive - I know, because I'm working on one right now (ugh) - but you're off by an easy two orders of magnitude. They've probably spent around $5-10 million on that case.
start sending probes in the direction of planets like this with enough ingredients on them to help kickstart life on other worlds that can support it. It wont affect us ...
It won't affect us? Here's a way it could affect us: The life we seeded grows, fast! It grows up faster than we expected and evolves at an exponential rate. Within 200 years it develops a space program then decides to pay us a visit with huge guns.
And then we surrender like good little doobies, because there's no point in fighting something that evolves from protozoa to interstellar space-faring civilization in 200 years. Fortunately, at that rate, we'll only have a couple years in slavery and they'll have evolved past us to the point where they won't care and will set us free again.
Please All you nay sayers how you cant sell open source or make money off it... PLEASE, tell me how she is a failure...
Open Sells. Open is Profitable. This is a fact.
People will use single data points to make unconditional blanket statements. This is a fact.
Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.
According to NewYorkCountryLawyer, she didn't have to show she didn't distribute. The "making available argument" has been shot down as bunk by the judge, and no evidence of distribution was ever shown, so the damages they are trying to award have nothing to do with distribution.
I'm inclined to believe him over you.
Feel free. Mind you, you should be sure what you're arguing about. For example, I'm not making any arguments about "making available". Thomas distributed to at least one person - the MediaSentry investigator - and that instance of distribution was shown. In fact, it's what Thomas' liability for infringement is based on.
Here's a tip - rather than "believing NYCL" or even "believing me", go read the judgement for yourself. NYCL helpfully has them posted on his site.
Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work.
The cost of a distribution license? Which is arbitrarily set by RIAA member companies to be whatever the fuck they want?
Nope, in this case, statutory damages are set by Congress. And they happen to be in line with what the RIAA member companies have set. Maybe there's a corruption issue there, but it's not a constitutional issue.
Not only is it ridiculous, it's a goddamn lie. The terms of Apple's deal with the record companies are public knowledge, after lawsuits revealed the details. For every $0.99 song, Apple gets $0.29. The remaining $0.70 goes to the record company. Of that $0.70, the record company pays 3% to the producer and 12% to the artist, so the record company keeps $0.595 cents per paid iTunes download. And THAT is the cost of the distribution license. That right there.
... if you're a reputable seller with an established track record. If you're not - if you're setting up your new online music store to compete with iTunes, then the record companies are going to have all sorts of mandatory minimums to avoid you giving away content for free and saying "your 59.5% royalty on my $0 in sales is $0, so here's your check for $0". Instead, there will be sliding scales with royalty rates decreasing as you sell more copies, and mandatory monthly minimum payments regardless of number of copies sold.
So, yeah, the statutory damages range is around the cost of a distribution license.
Now, here's the thing - you point out, correctly, that statutory damages are pure fiction (although they're based on that reasonable range for a distribution license). Thomas has the ability to mitigate those damages by showing that she didn't actually distribute the song to many people. Statutory damage awards are rebuttable presumptions, where the burden falls upon the defense. She didn't show that, however - and in fact, she destroyed her hard drive and lied about it under oath.
If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income?
Yes, that's why car insurance is compulsory in this country. It's also why we have a national health service. It's also why there's an "uninsured drivers fund" to cover the losses caused to someone by an (illegally) uninsured driver.
So, if Thomas had lawsuit insurance, she could get out of paying this. The whole point is compensating you for your medical bills, or Capitol Records for their lost royalties from her distribution. That it's painful for me to buy insurance or painful for Thomas to pay royalties is irrelevant, since we're the wrongdoers.
Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.
As I said, loss of 4-5 years' gross income feels pretty fucking punitive. That may not be intended, but it's the bitter reality.
"Punitive" has a specific legal meaning and it only applies to damages that are awarded as punishment for wrongdoing. They're related to how evil the defendant's act was, and not how badly the plaintiff was damaged. Compensatory damages could be huge and feel like punishment, but they're not - they're solely related to how badly the plaintiff was hurt by the defendant's actions.
Anyway...
to compensate the copyright owner for their lost distribution licensing revenue
Their lost revenue was somewhere between $0 and $1000, depending how many people received the distributed material. Proven losses are at the lower end of that scale. A proportionate award for damages would likely have have been paid; a $220,000 one probably never will.
Not at all. Michael Jackson paid about $273k for distribution rights for each of 4000 Beatles songs. $222k is certainly in that ballpark. If Thomas wanted to set up an online record store like iTunes, she wouldn't be paying Capitol a single dollar, or even $1000... She'd be purchasing a distribution license, which could well be tens of thousands or hundreds of thousands of dollars per song, depending on popularity. But, rather than negotiating for that license, she just went ahead and distributed the songs anyway... and we're supposed to be sympathetic to her now?
Except that the statutory damages are compensatory in nature, not punitive.
Loss of four or five years' gross income feels like a pretty cruel punishment to me.
If I run over you with my car, causing you to rack up several hundred thousand in medical bills, should I be able to get out of paying it by saying that it's pretty cruel punishment for me to lose several years of income? No - that's the difference between compensatory damages, or damages that compensate you for your loss, and punitive damages, or damages that are tacked on as additional punishment.
Statutory damages in copyright are compensatory in nature, and are to compensate the copyright owner for their lost distribution licensing revenue. They're not punitive, even though they may be painful.
Note the RIAA has never published music, and is not a music publisher so should have no right to fine uploaders/distributors /publishers
They represent some of the Music Publishers in the USA, but not all of them, and not all music publishers across the world
But they will and have tried to prosecute people for uploading material where the copyright is not owned by the people they represent, even outside the USA
No, they haven't. The RIAA has never been a party in these suits - it's Capitol Records v. Thomas, and Sony v. Tenebaum. They're all members of the RIAA, but your argument about lack of standing is false.
Prove that Jammie ever uploaded a complete file to someone who did not posses a license to the copyright for those songs.
If I download songs for a CD that I own, am I infringing? Was the person uploading the songs to me infringing, provided I own the CD that the very songs I am downloading exist in some form on?
Yes, if the person who uploaded the song to you didn't have a distribution license. In any transfer, there are potentially two infringers - the uploader, who distributed, and the downloader, who made a copy. In your hypothetical, you have a reasonable argument that you have an implied license to make a copy (basically, you have a right to format shift from your copy, so this is format shifting-by-proxy). But, the person who distributed the work to you didn't have a license. Thomas never approached Capitol Records and said "I want to set up a competing store to Apple's iTunes store, and here's my money for a distribution license," but effectively did it anyway. Why should she be able to distribute a work without paying royalties?
The difference is downloading isn't providing copyrighted materials to others. Where as uploading is. Legality of downloading could be argued, but would only be one count per download. The illegality of uploading copyrighted material is known, and get one count per upload. So, yes. The damages should be different. Now, that doesn't mean I agree with the way the system is currently set up.
Not quite - the count is "per work infringed", not "per infringing copy", so you don't multiply the counts by the number of uploads or downloads. However, you're right that there's a huge difference between uploading and downloading: if you only download once, you actually have a reasonable damage-mitigation argument that you only owe the copyright owner $1 for the song. If you upload, however, you owe them the cost of a distribution license... which could be tens or hundreds of thousands (for example, Michael Jackson bought the distribution rights to a bunch of Beatles' songs for around $100k each). When Apple is paying that much in royalties to be able to distribute the latest Katy Perry song on iTunes, for example, it's tough for a defendant to argue that they should be able to also distribute it but only owe $1.
I didn't read the case, but if the summary is correct, they're making the wrong argument. SCOUTS will say that Congress established the law and that if the law is being followed then Due Process is served.
They should be making a case that the statutory damages constitute 'unusual punishment' and are far outside all other punitive damage amounts ever considered by copyright law in precedent (because Congress has been bought off).
Except that the statutory damages are compensatory in nature, not punitive. They're also reasonably related to the cost of a distribution license for a work. Accordingly, Congress was within its Article 1, Sec. 8 powers to set those levels, and they're constitutional.
The better argument is that the RIAA and MPAA are twisting the definition of "willful" infringement to conflate two of the statutory levels of damages: statutory damages are "up to $200" for innocent infringement, where you honestly believe that the work is not under copyright (e.g. if you didn't know that P.D.Q. Bach was Peter Schikele and thought he really was a son of J.S. Bach and has been dead for hundreds of years); "from $750 to $30,000" for 'normal' infringement; and "up to $150,000" for 'willful' infringement. The RIAA has argued that 'willful' means 'anything that's not innocent', and they end up removing that middle range of damages. That's contrary to Congress' intention.
Thing is, it hasn't come up yet as an argument, because Thomas and Tenenbaum and others keep arguing that all statutory damages are punitive, or that they have fair use rights, or that there's an implied exception for non-commercial infringement, and none of those arguments have been successful. They haven't raised the $750-30k range argument because, in their eyes, they shouldn't have to pay anything, so even a few thousand is a "loss". As a result, the judges hearing these cases only have the RIAA's argument for willfulness, and with nothing to the contrary in front of them, they side with it.
... Humbucker.
In the meantime, you can do something useful by submitting prior art.
It may have been some randoms doing DMCA illegally:
FTFA:
Update: Yesitis.org now points to a parked page. Yet another sign that these notices may be fraudulent, and not authorized by the copyright holders at all. If that’s indeed the case it remains unclear what the purpose of these notices is. It would show how easily these DMCA notices can be abused.
More like "False Flag".
No. The latter is the State taking away property rights from everyone else; in this case due process must be applied in the reverse direction to make the analogy work. Without the granted patent, no one loses access to the 'property' in question.
Patents are property, and just like any other property, there's a right to exclude others - by saying that your house is yours, the state is taking away property rights from everyone else who wants to go in your house without your permission... Are you saying that due process requires we take away everyone's homes unless they can prove validity of their deed?
The relevant statute is 35 USC 102, which states that a person is entitled to a patent unless certain conditions are met. That means that the government is obligated to grant the patent, unless they can prove the existence of those conditions. If you don't like the law, then lobby to change it, but the law and due process currently require the presumption of validity.
Given the general ridiculousness of patents, the propensity of large companies like Apple (by no means the only offender, but the one in question in this case) to submit patent applications on trivial things, and the VERY long history of wireless energy transfer at this point, I feel that the default position is that the patent should have never been awarded or even applied for and the onus is on anyone else claiming otherwise.
And given how criminals tend to be, well, criminal, the default position is that they're guilty and the onus is on them to prove their innocence. I mean, who cares about due process?
One is the state making accusations of wrongdoing against an entity, with monetary or restrictive consequences.
The other is an entity petitioning the state to recognize and grant them a temporary monopoly, with monetary rewards potentially enforced by the state against other entities.
Actually, the latter is also the state making a quasi-judicial decision to deny property rights to an inventor. The due process requirement absolutely applies.