Many terrorist groups engage in a variety of organized crimes to fund their activities. As terrorist groups tend to act in similar ways to transnational organized crime groups, it is important to carefully monitor how their activities evolve. There is general agreement that IP crime is a high-profit, low-risk crime, which inevitably motivates criminals to engage in this type of activity. It is clear paramilitary terrorist organizations have traded in counterfeit and pirated goods to maintain their organizations and fund their activities. In light of this, INTERPOL remains concerned about the possibility that some other terrorist groups would seize the opportunity to finance their activities through IP crime.
It is an issue that needs to be carefully monitored, and evidence of terrorist groups actually engaging in IP crime must be collected in a systematic fashion, if and when it surfaces.
According to R.E. Kendal, former General Secretary of Interpol, the connections with organised crime are increasingly obvious. He has written that counterfeiting is a fully-fledged criminal activity that is not on the periphery of other criminal activities but, instead, at their very heart. Similarly, Christophe Zimmerman, a French expert advising the European Commission, has quoted an unusual example: fake boxes of Vaseline, a product used to make certain explosives, were intercepted at the Danish border, having originated from Dubai; the head of the network was a known member of Al Qaeda. According to Chris Merchant from the International Federation of the Phonographic Industry, the IFPI "has proof of links
between terrorism and counterfeiting and industrial piracy". In Northern Ireland, nine arrested terrorists had financed their activities through industrial piracy. In Latin America, links have been established between Middle Eastern terrorist groups and industrial piracy networks.
More recently, Islamic terrorist groups in Southeast Asia and the Philippines have used industrial piracy to finance their operations with Al Qaeda. There is nothing new about this phenomenon. As far back as 1992, Muslim fundamentalist groups were suspected of being connected with trafficking in contraband goods and counterfeiting designer products, watches and perfume. In 1993, the police arrested the owner of an import-export company in Paris, whose offices were being used as a base by an Islamic association. A stock of fake designer shirts was also found there. In November 2003, a counterfeiting network between France and Italy was dismantled and thirteen members of the Hijdra Oua Etakfir phalange were arrested. They are suspected of having supplied arms and false papers to Algerian terrorists
via a network financed by counterfeiting clothes.
The assertion that "[c]riminal syndicates, and in some cases even terrorist groups, view IP crime as a lucrative business, and see it as a low-risk way to fund other activities" doesn't seem to be lie given the findings of others. It hardly seems necessary to make extensive references in a public speech given at the Tech Museum of Innovation when identifying supporting finding is easy to do. The speeches given by government officials are boring enough already without turning them into oral treatises to avoid being accused of telling lies.
If the Open Source Software Community files frivolous lawsuits with insufficient evidence, they OUGHT to pay "reasonable attorney's fees". The fact that the bad rules can be abused by both sides is no justification for leaving the rules as they are. Just stop filing lawsuits that you can't actually win. Lawsuits should be filed when you have strong evidence that you have been wronged, not when you want to go on a fishing expedition to find out if someone might be cheating you.
Losing or settling a case doesn't necessarily mean that you had a frivolous position. There are a lot of unsettled areas of the law and each case is different. Both sides can go into a courtroom on an issue with reasonable arguments, but only one side will ultimately prevail.
Given that Mr. Thompson is asking for an automatic entitlement to a reasonable attorney's fee (or at least a presumption in favor of a reasonable attorney's fee, even if the court does not believe the lawsuit to be frivolous), this suggests that his position is that a prevailing defendant in a copyright suit should be entitled to a reasonable attorney's fee even if the case was a strong one. This may be a good position to take if all you care about is hurting the RIAA, but it's not necessarily a good position to take if there are other content producers whose you think should be able to enforce their rights who may not have as much backing as the RIAA.
This is a bad case too for suggesting that that the RIAA filed a frivolous lawsuit. According to the Fifth Circuit Court of Appeals order affirming that Mr. Thompson was not entitled to a reasonable attorney's fee, he had been contacted repeatedly six-months before the suit was filed. The court further elaborated on his willingness to resolve the dispute:
In August, Thompson filed an answer and a counterclaim requesting attorney's fees that accused Plaintiffs of engaging in "sue first, talk later" litigation. Plaintiffs moved to dismiss the counterclaim on September 5, 2006. Two days later, Thompson disclosed in his response to this motion that "if anyone downloaded the songs in question it probably would be [my] adult daughter." Thompson did not, however, tell Plaintiffs his daughter's name. Thompson's disclosure came more than eight months after Plaintiffs initially wrote to him.
Through their own efforts, Plaintiffs identified Thompson's adult daughter as Brigette Thompson. On October 6, Thompson's counsel confirmed that Ms. Thompson was the direct infringer who used Thompson's Internet account. When Plantiffs moved to dismiss their case, Thompson reiterated his demand for attorney's fees. The district court granted the former motion and denied the latter, and Thompson appealed.
Mr. Thompson's Internet account was used to commit copyright infringement. Was this a frivolous lawsuit? What should the copyright holders have done given that he was unwilling to communicate the key facts that he had in his possession?
Any/. lawyers care to explain why the defendants would be unable to collect for legal fees on these lawsuits? I'm not terribly versed in how this legal stuff works, but I was of the understanding that in any case, if I am wrongfully taken to court, I am allowed to counter-sue for legal fees. I thought that was part of the balance that kept people from suing just for fun with no repercussion.
Since you specifically asked for/. lawyers, I'll point out that IANAL and even if I was one, I do not represent/. (or you).
The default rule for civil suits in the United States is that both parties pay for their own representation. The copyright statute provides an exception to this rule in 17 U.S.C. 505:
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
The right to request a reasonable attorney's fee is subject to registration of the copyright (See 35 U.S.C. 412).
Courts have read into Section 505 a right for defendants to request a reasonable attorney's fee too. But it's not in the copyright code itself.
Attorneys' fees are not the only way to deter or mitigate the costs of frivolous lawsuits. Lawyers can be held accountable for bringing suits where the lawyers do not believe a reasonable basis for filing suit exists. It is also possible to minimize the cost of an action by providing all of the facts upfront and requesting summary judgment (suits where parties fight to withhold information can become very expensive).
The Open Source Software Community may not want the law to favor automatically granting a reasonable attorney's fee to copyright defendants. Imagine trying to enforce the GPL if the courts are highly likely to impose $50,000+ in reasonable attorney's fees on the OSS coders trying to enforce their rights if the suit fails. The OSS Community really should really support leaving much of the decision to the discretion of the district court judges.
Why is she requesting that all imports of the tech in question be stopped? Doesn't this sort of thing usually just end with a licensing agreement? The inventor gets paid, and everybody goes on. The article doesn't mention that she is involved with any sort of competitor, so it just seems sort of malevolent for her to try and put a halt to the entire market.
I certainly hope there is a better explanation, though.
She is requesting blocking of imports because that's the basic remedy an intellectual property right holder gets with the International Trade Commission. I don't think it is even possible to get damages for infringement in the ITC (although a regular lawsuit to go after damages can still be filed). You also can't use ITC proceedings to prevent infringement within the country.
Some advantages of going to the ITC include speedy proceedings (so you're not still engaged in the suit 10 years later) and enforcement of exclusion orders by customs. Because the ability to import a set of goods is often vital, the threat of such exclusion orders can provide a powerful motivation to license if it appears likely that the plaintiff will win.
Another advantage is that the ITC is fairly specialized. It has people who really know the law and can pick up on technical nuances readily. ITC decisions may be higher-quality than the decisions that come from the district courts because either party can demand a jury in patent cases in the district courts and because district courts do not have the specialized legal knowledge and experience with technical cases.
Actually they shouldn't be trying too hard. Knowingly infringing on a patent is triple damages. So do it unknowingly if you must.
This was actual legal advice given to me, so it's sound. In so many words he said it's far better given the current system to stick your head in the sand and pretend patents don't exist, because it's nearly impossible to write anything withing infringing something and it's better to wait for them to come after you.. and when they do being ignorant of the patent is much cheaper than knowing about it.
Not all lawyers give sound legal advice anymore than all programmers write sound software code. The advice you received was probably based on an interpretation of Underwater Devices, Inc. v. Morrison-Knudsen Co.717 F.2d 1380 (Fed. Cir. 1984), where a company received two letters from the patent holder giving actual notice of the patent but did not assess the validity of the patent or ascertain whether the company was likely to infringe on the patent. There have been multiple opinions since then that have made it harder for a patent holder to prove willful infringement.
Is it better to stick your head in the sand so that if you get hit with a patent lawsuit you only have to pay damages instead of treble damages? Or is it better to take a look around a bit to see what's out there, identifying the patents that are easy to find, and avoiding infringement in the first place?
There can be a lot of low-hanging fruit out there. If you are mimicking someone's features, check to see if they received any patents or have filed an application. Try to identify patent classes that relate to your core technology, then skim through the abstracts to see if anything troublesome catches your eye. If you think the risk of infringement is high, get a lawyer involved (it'll probably be cheaper since you did the ground work of identifying the risk in the first place). If you don't think the risk is high, write a memo saying why you don't think it's a high risk. At least then you have evidence that you were being careful, and you may be able to avoid infringement altogether, which is even better.
mundane reasons (e.g. risk-averseness among potential investors in technology - due to high likelihood of litigation due to unforeseen patent infringement)
Surely that's what you mean?
There are many other risks than having the company you invested in lose money in litigation. Run a search for companies that fail or why software companies fail. Patent litigation costs are not the biggest causes of failure. A new product is much more likely to fail because people don't want to buy it or because it becomes prohibitively expensive to make the product in the first place than because a patent holder does not want it in the market or wants a royalty. Companies that create new products should try to minimize the risk of patent infringement, but it is only one risk among a sea of risks.
if you can't patent maths then why should you be able to patent software as it's nothing more than maths.
Well, according to this friend-of-the-court brief, filed by the American Intellectual Property Law Association earlier in this case, citing Diamond v. Diehr, "laws of nature, natural phenomena, and abstract ideas alone are not patentable...'an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.'" p. 8. Perhaps it was a mistake for opponents of software patents to refer to software works as "applications."
You need to stop patent trolls dead. Like RAID and bugs. Let innovation back into this business.
Has their been a shortage of innovation recently? If so, has the shortage been due to the inability to get into markets because of patents, or have their been more mundane reasons (e.g., risk-adverseness among potential investors in technology)?
It'd be impossible to compel them to work, especially in sweden. They'd just not work, and not pay.
Sure, why not? You can always cut off your nose to spite your face. Why earn $100,000 and keep $75,000 (minus taxes) when you can earn $20,000 and keep $20,000 (minus taxes)?
And I don't know where you're getting "nerds tend to make good money" from - most don't.
A lot do...although I suppose it depends on what one defines as a nerd.
Shrug. They don't have thousands/millions to pay - the pirate bay is NOT profitmaking, it only takes a few nerds to keep it going.
Does it really have to be profitmaking for a judgment to have impact? Nerds tend to make good money. A $1 million dollar judgment found against an individual running the site could be spread out over a 40 year career as $25,000 per year if interest isn't charged. For people who have six-figure earning potential, such judgments might be considered fair, and they would bite enough that they could discourage others from taking the place of the defendants.
I've said for a while that patents should be non-transferable and automatically revoked if the patent holder does not market the idea. Lawsuits are, of course, not a form of marketing. Patent trolls add nothing to society, and therefore defeat the point of the patent system. Why do we still tolerate them? Virtually every company that produces something is threatened by patent trolling, and patent royalties significantly increase the price of consumer goods. We can have a patent system, we just need to completely reform it.
There is an argument that patent trolls make a contribution to innovation the same way that stock markets contribute to the economy. When purchasing stock in a company on the open stock market, you buy a piece of the company but you aren't directly contributing to its future. Your investment goes to the former owner of the stock, not the company you are investing in. However, if you go trace that stock from previous owner to previous owner, eventually you get to the underwriter who did provide funding to the company. It would have been harder for the company to find those original investors if the issued stocks were non-transferable.
In a similar manner, patent trolls may provide an incentive for investment in technologies, and public disclosure through the patent system, because they provide a market for the patent rights. Why should a technology producer bother getting caught up in the ugly and expensive process of trying to enforce a patent when it is easier to sell the patent to a troll, keep a non-exclusive license to the technology, and continue focusing on the technology producer's core business?
Without the possibility of transferring the patent rights to a troll, and thus quickly capitalizing on the enforcement rights, the company may be less willing to invest in technologies, especially if competition is already strong and the likelihood of success is small. Or, the company may focus more on keeping the technologies secret, limiting the ability of others to learn from those technologies if the company goes belly-up or is just really good at maintaining secrecy.
I would like to point out, that in America when cable was first offered to the public, the ONLY purpose of buying it was so that you can watch TV WITHOUT commercial interruption. Else, it was the typical bunny ears with tinfoil wrapped around them, watching General Hospital on ABC or was it CBS, and have to watch a commercial every five minutes or so.
The article didn't give details regarding what patents are at issue. I went to PACER and searched for patent cases involving Rembrandt filed since January 1, 2007. Most of the cases were filed by Rembrandt Technologies, although one of them was filed by Motorola seeking declaratory judgment that it was not infringing on any valid claims owned by Rembrandt Technologies.
The complaints were not all the same, but here is the list of patents cited in the complaints:
An important question is whether it really matters whether Rembrandt Technologies hired the original inventors or not, or whether Rembrandt Technologies practices the inventions or not. Rembrandt Technologies purchased the patents and is trying to license, not practice the inventions, thus it is considered to be a patent troll. But, would it have been better had the original patent holder had been the one to file these suits?
The rights involved would not be any different, just the entity able to enforce those rights. If the original patent holder was a competitor of the defendants, then there would be more incentive to file these suits to stop competitors from practicing the invention altogether, rather than trying to obtain licensing fees. At least with a third-party patent holder, there is an incentive for the patent holder to license the patents broadly.
One way of looking at suits and transactions is that the original patent holder capitalized on the potential value of enforcing the patents by transferring those enforcement rights to a buyer willing to take on the enforcement risks. There are plenty of risks involved in enforcing patents (e.g., the cost of attorneys fees or the possibility that an adverse construction of the patent rights will destroy their enforcement value). Whether the original patent holder or a third-party takes on those risks changes who takes on those risks, but doesn't change the scope of the patents themselves.
Make sure that you are documenting not only what you do, but how you do it. If you are the only person who knows how to do a set of tasks, then you will be the IT technician who does those tasks. If you ensure that others can do those tasks, then you have a better chance of convincing others to have IT technicians work for you (thus making you the manager or team leader). Remember, if they can't replace you, they can't promote you.
This is a prime example of why all software patents are bullshit, there is no way you should be able to patent mathematics, specifically algorithms.
The software == mathematics argument loses some wind when used to attack a patent application such as this one. Mathematics describes universal truths. This application describes a user interface feature. Mathematics are exact, and often uses specialized notation to avoid ambiguity. This application uses a lot of words to describe several concepts and uses words to establish the boundaries of what was created that is novel and non-obvious (sadly, words usually being quite a bit less precise than the various notations used by mathematicians). This patent application describes the application of software technology for a useful purpose. It does not describe some abstract mathematical concept.
Overall, this is not quite the same but might be similar enough to count as prior art. That is, if it was present in EVE before March 29, 2006. Unfortunately others have to confirm or refute this as I started EVE in December 2006, after the date of the patent application:-(
The functionality of EVE that you described could support an argument that at least some of the claims are obvious given the state of drag-and-drop technology. You are right to be careful about the dates when the functionality existed. Even if EVE came out with the cited functionality before March 2006, there are circumstances where the EVE technology would not be considered prior art. USPTO patent examiners prefer prior art from at least 12 months before a patent application was filed because such prior art is solid and doesn't evaporate under some of the circumstances that affect technologies within the 12 months preceding an application.
Even combining the EVE technology described with pre-existing drag-and-drop technology probably would not be enough to knock out all of the claims. There are some pretty narrow claims in this application. Look at claim number 7:
The method of claim 1 [A computer-implemented method for manipulating objects in a user interface, comprising: providing the user interface including a first interface object operable to be selected and moved within the user interface;
and in response to selection and movement of the first interface object in the user interface, presenting at least one additional interface object in the user interface in proximity of the first interface object, each additional interface object representing a drop target with which the first interface object may be associated] further comprising, prior to presenting the at least one additional interface object, identifying the at least one additional interface object with reference to at least one of a parameter associated with the first interface object, at least one currently instantiated object in the user interface, previous user interaction with the drop target, a user preference, a speed of movement of the first interface object in the user interface, a direction of movement of the first interface object in the user interface, a position of the first interface object in the user interface, and a position of a preexisting drop target in the user interface.
With this more narrow claim, instead of a drop target such as "move to top of list" showing up as soon as you click on an object, the system waits until you start moving the cursor. If you are moving it quickly towards the top of the interface, a "move to top of list" drop target might appear. If you are moving it quickly towards the bottom of the interface, a "move to bottom of list" drop target might appear.
If that is the only claim that Yahoo! manages to get through the system, then it would easy to engineer around: just bring up the drop targets once the user clicks and holds on an object regardless of where the user is moving the mouse cursor.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.U.S. Const. Art. I Sec. 8 Cl. 8.
Copyright secures for a limited time an author's exclusive right to the author's writings. The ultimate goal of providing such protection is to to promote the progress of science. Whether people are thinking about the ultimate goal or not does not mean that they do not understand the purpose of copyright at all.
If this were a discussion of fair use rights and whether they are strong enough to ensure that copyright does not impair the progress of science, then it would make sense to focus more thought on the ultimate purpose of securing these rights. But it is hard to see how the progress of science is seriously impaired by suggesting that consumers do not have an inherent right to free and convenient copies of copyrighted works.
From a position of social good, if creative work A really is so great, won't it rise on its own merits by word-of-mouth without organized marketing?
Possibly (quick thought: wouldn't it be nice if our presidential candidates were to rise to the top by word-of-mouth and not by aggressive, expensive campaigning?). Copyright infringement tends to reinforce the power of existing players though rather than opening the doors to new players. Why download or purchase (at a cheap price) the songs of unknown artist A when you can download the songs of well-known artist B for free? Sure, there may be some people who just download works at random (perhaps within a preferred genre), but those people tend to be in the minority. This tends to drown out the ability of independent artists to get people to listen to their works.
Lets say that nobody infringed on the copyrights held by record companies. If the average album sold for $15 and nobody downloaded the songs illegally, then that would provide an opportunity for smaller record companies or independent artists to entice consumers with albums selling for $10, $5, or less. But when consumers who are unwilling to buy the album for $15 just download the songs, they have less incentive to look around at alternative sources of entertainment.
With our current systems of digital content production and distribution, I'd take the position that there is no longer any need for a large investment in content by a distributor at all.
With our current system of public water treatment and indoor plumbing, there's no longer any need for investment in the bottling and distribution of water in the United States. 'nuff said.
As for the man on the street, Panaqqa wrote us with word that the Question Copyright site has posted an interesting video of ordinary people explaining why they think copyright exists. It's pretty clear that most people don't understand it at all.
I disagree. The people in this video get some concepts mixed up (e.g., patents versus copyrights, economic rights versus moral rights). But, they seem to get the gist of what intellectual property rights are supposed to protect.
People definitely seems to struggle with their ideal view of copyright protection and their desire for convenience and low cost. Some of the people seemed to go to some lengths to rationalize copyright infringement.
One of the arguments given is that the artists do not see much of a profit from their works. That is, because the content creator has a bad deal with the content distributor, the consumer can legitimately chip away at the content distributor's profits.
This is poor rationalization. The ability of content creators to make reasonable deals with content distributors is a result of supply versus demand. Content creators that are good at controlling supply (e.g., programmers, who control supply simply by not having an overwhelmingly large population, members of the writers guild, who control supply through unionizing, or established artists, who have managed to survive the fickle markets) are in a better position to establish favorable deals than content creators who do not control supply very well (e.g., new musicians, who seem to grow on trees).
Copyright plays an important role in controlling supply. If there was no copyright, new musicians would have to avoid playing their songs in public or otherwise distributing their songs. Recording studios could troll for good songs, take them without any compensation, and hire their own musicians or established stars to take the songs to the big time. The marketing power of the content distributors would be much more important than it is today.
Copyright transferability plays an important role in stimulating demand. If the copyrights were completely non-transferable, then the risk of investing in content would become very high, reducing the demand from content distributors. Again, the marketing power of the content distributors would be much more important than it is today.
What is the effect of widespread infringement by consumers? The effect is that the risk of investing increases, again reducing the demand from content distributors.
Content producers can try to cut content distributors out of the loop, but that only works if consumers purchase from the content producers. Infringing on the copyrights of works that are in the hands of content distributors does nothing for content producers.
Remember, that even if content producers get no royalties for their works (something that is common with programmers), content distributors have to meet some threshold of reward to get content providers to assign their copyrights over the the content producers. The more risk there is in investing in a content producer (e.g., because of widespread copyright infringement), the less demand there is from content distributors, and thus the worse the deals are for content producers.
Nobody is saying he's not at fault, just that he hasn't committed copyright infringement according to the law. Attempting to commit a crime and failing is not illegal (though you might be committing another crime in the attempt), you have to actually commit a crime.
Sure you can. In the People v. Dlugash, the Appellate Court of New York held that a defendant could be found guilty of attempted murder for shooting a dead body that the defendant thought was still alive (but that might be dead). The court upheld the Legal Impossibility defense: the defendant was not guilty of actual murder. But the defendant was not completely off the hook.
All this talk of crime may be beside the point because these suits are all civil in nature, not criminal (remember O.J. being acquitted for murder but being found liable for "wrongful death?"). The burden of proof in civil cases is only a "preponderance of evidence," scales balanced between plaintiff and defendant, not the "beyond a reasonable doubt" requirement of criminal conviction, scales heavily tilted in favor of the defendant.
The judge might decide that the Howells have a defense based on the assertion that only the RIAA-authorized investigators downloaded the copyrighted materials. On the other hand, lets say that you drop off a really nice suit with the dry cleaners. You only authorize them to clean the suit. You think that they might be lending clothes out before they are picked up a la Seinfeld. Thus, you hire a private investigator to go the dry cleaner and offer to rent the really nice suit. The dry cleaner does not know that you hired the private investigator. The dry cleaner takes the private investigator's offer, exchanging the suit (for a short period of time in exchange for some payment). You sue.
Would the judge deny relief to you because you had authorized the private investigator to make the offer?
One thing I'd like to see is reimbursements of licensing fees that were already collected on pending patents if patents are rejected. That'd (a) Make companies think twice before they file obvious bullshit, (b) Make the patent system more fair in case obvious bullshit is rejected. I'd genuinely enjoy seeing Amazon reimburse the licensing fees for their "one click" patent.
It would be difficult and risky to enforce such a scheme. It would be difficult because patent holders would search for loopholes to avoid the risk of being required to return licensing revenues. Attempts to work around the law could be as simple as requiring agreement that the licensee would not seek reimbursement if the patent was invalidated. Attempts could be more complex, perhaps relying on covenants not to sue or in-kind royalties. One risk of enforcing such a scheme is that patent holders would be less likely to license in the first place. There are already plenty of barriers to patent licensing (e.g., patent holders overestimating the worth of their rights). Placing all licensing revenues into de facto escrow would only add to the barriers. An additional risk is that the people with the most interest in invalidating patents would have less incentive to pursue options such as reexamination or seeking a declaratory judgment of non-infringement by invalidity. Why take on the expense of attacking a patent when it is easier to license the patent and wait for someone else to take on the expense of attacking it?
So it may be true that the RIAA is not literally rewriting copyright law (they have lobbyists that do that), but they sure are trying to rewrite copyright law by establishing precedents via cases against those who can't afford to defend themselves.
Just a fine point: binding precedents are generally not established by suing individuals who don't try to put up much of a defense. While the decisions of district court judges may have some persuasive impact (particularly if well-written), they do not create an interpretation of law that is binding on other judges. A case has to rise to the level of appellate review before interpretations of law that have to be followed by other judges, binding precedents, can be generated. Even then, appellate panels often issue non-precedential opinions (especially if the facts are too messy to establish a rule that can be applied in the future).
Someone who is unable or unwilling to put up a defense in a district court is unlikely to appeal an adverse decision. Recording studio lawyers are probably trying to use these lawsuits to increase the costs of using P2P software for copyright infringement (which would be $0 if there was no risk of being sued) while trying to fund the expense of pursuing additional lawsuits. Of course they are going to argue against interpretations of the law that would undermine this strategy, but applying their interpretation of existing rights rather than trying to expand the scope of copyrights seems to be their primary objective.
The UDRP is much more streamlined and cost-effective than other methods of dispute resolution such as going to court. Complainants often win even weak cases because many respondents do not even try to dispute the claims. Only 14% of UDRP disputes that have been decided were decided in favor of the respondent.
The poster does not even need a lawyer to proceed with a UDRP complaint (it might help, of course). Information about the process is available from ICANN.
Slashdot Mirror
...and Attorney General Michael B. Mukasey isn't the first to draw a connection. INTERPOL (The International Criminal Police Organization) has identified potential links between IP crime and the financing of terrorist activities:
A 2004 report by the Union des Fabricants also highlighted the links between counterfeiting and terrorism. One excerpt reads:
The assertion that "[c]riminal syndicates, and in some cases even terrorist groups, view IP crime as a lucrative business, and see it as a low-risk way to fund other activities" doesn't seem to be lie given the findings of others. It hardly seems necessary to make extensive references in a public speech given at the Tech Museum of Innovation when identifying supporting finding is easy to do. The speeches given by government officials are boring enough already without turning them into oral treatises to avoid being accused of telling lies.
Losing or settling a case doesn't necessarily mean that you had a frivolous position. There are a lot of unsettled areas of the law and each case is different. Both sides can go into a courtroom on an issue with reasonable arguments, but only one side will ultimately prevail.
Given that Mr. Thompson is asking for an automatic entitlement to a reasonable attorney's fee (or at least a presumption in favor of a reasonable attorney's fee, even if the court does not believe the lawsuit to be frivolous), this suggests that his position is that a prevailing defendant in a copyright suit should be entitled to a reasonable attorney's fee even if the case was a strong one. This may be a good position to take if all you care about is hurting the RIAA, but it's not necessarily a good position to take if there are other content producers whose you think should be able to enforce their rights who may not have as much backing as the RIAA.
This is a bad case too for suggesting that that the RIAA filed a frivolous lawsuit. According to the Fifth Circuit Court of Appeals order affirming that Mr. Thompson was not entitled to a reasonable attorney's fee, he had been contacted repeatedly six-months before the suit was filed. The court further elaborated on his willingness to resolve the dispute:
Mr. Thompson's Internet account was used to commit copyright infringement. Was this a frivolous lawsuit? What should the copyright holders have done given that he was unwilling to communicate the key facts that he had in his possession?
Since you specifically asked for /. lawyers, I'll point out that IANAL and even if I was one, I do not represent /. (or you).
The default rule for civil suits in the United States is that both parties pay for their own representation. The copyright statute provides an exception to this rule in 17 U.S.C. 505:
The right to request a reasonable attorney's fee is subject to registration of the copyright (See 35 U.S.C. 412).
Courts have read into Section 505 a right for defendants to request a reasonable attorney's fee too. But it's not in the copyright code itself.
Attorneys' fees are not the only way to deter or mitigate the costs of frivolous lawsuits. Lawyers can be held accountable for bringing suits where the lawyers do not believe a reasonable basis for filing suit exists. It is also possible to minimize the cost of an action by providing all of the facts upfront and requesting summary judgment (suits where parties fight to withhold information can become very expensive).
The Open Source Software Community may not want the law to favor automatically granting a reasonable attorney's fee to copyright defendants. Imagine trying to enforce the GPL if the courts are highly likely to impose $50,000+ in reasonable attorney's fees on the OSS coders trying to enforce their rights if the suit fails. The OSS Community really should really support leaving much of the decision to the discretion of the district court judges.
She is requesting blocking of imports because that's the basic remedy an intellectual property right holder gets with the International Trade Commission. I don't think it is even possible to get damages for infringement in the ITC (although a regular lawsuit to go after damages can still be filed). You also can't use ITC proceedings to prevent infringement within the country.
Some advantages of going to the ITC include speedy proceedings (so you're not still engaged in the suit 10 years later) and enforcement of exclusion orders by customs. Because the ability to import a set of goods is often vital, the threat of such exclusion orders can provide a powerful motivation to license if it appears likely that the plaintiff will win.
Another advantage is that the ITC is fairly specialized. It has people who really know the law and can pick up on technical nuances readily. ITC decisions may be higher-quality than the decisions that come from the district courts because either party can demand a jury in patent cases in the district courts and because district courts do not have the specialized legal knowledge and experience with technical cases.
Not all lawyers give sound legal advice anymore than all programmers write sound software code. The advice you received was probably based on an interpretation of Underwater Devices, Inc. v. Morrison-Knudsen Co. 717 F.2d 1380 (Fed. Cir. 1984), where a company received two letters from the patent holder giving actual notice of the patent but did not assess the validity of the patent or ascertain whether the company was likely to infringe on the patent. There have been multiple opinions since then that have made it harder for a patent holder to prove willful infringement.
Is it better to stick your head in the sand so that if you get hit with a patent lawsuit you only have to pay damages instead of treble damages? Or is it better to take a look around a bit to see what's out there, identifying the patents that are easy to find, and avoiding infringement in the first place?
There can be a lot of low-hanging fruit out there. If you are mimicking someone's features, check to see if they received any patents or have filed an application. Try to identify patent classes that relate to your core technology, then skim through the abstracts to see if anything troublesome catches your eye. If you think the risk of infringement is high, get a lawyer involved (it'll probably be cheaper since you did the ground work of identifying the risk in the first place). If you don't think the risk is high, write a memo saying why you don't think it's a high risk. At least then you have evidence that you were being careful, and you may be able to avoid infringement altogether, which is even better.
There are many other risks than having the company you invested in lose money in litigation. Run a search for companies that fail or why software companies fail. Patent litigation costs are not the biggest causes of failure. A new product is much more likely to fail because people don't want to buy it or because it becomes prohibitively expensive to make the product in the first place than because a patent holder does not want it in the market or wants a royalty. Companies that create new products should try to minimize the risk of patent infringement, but it is only one risk among a sea of risks.
Well, according to this friend-of-the-court brief, filed by the American Intellectual Property Law Association earlier in this case, citing Diamond v. Diehr, "laws of nature, natural phenomena, and abstract ideas alone are not patentable...'an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.'" p. 8. Perhaps it was a mistake for opponents of software patents to refer to software works as "applications."
Has their been a shortage of innovation recently? If so, has the shortage been due to the inability to get into markets because of patents, or have their been more mundane reasons (e.g., risk-adverseness among potential investors in technology)?
Sure, why not? You can always cut off your nose to spite your face. Why earn $100,000 and keep $75,000 (minus taxes) when you can earn $20,000 and keep $20,000 (minus taxes)?
And I don't know where you're getting "nerds tend to make good money" from - most don't.
A lot do...although I suppose it depends on what one defines as a nerd.
Does it really have to be profitmaking for a judgment to have impact? Nerds tend to make good money. A $1 million dollar judgment found against an individual running the site could be spread out over a 40 year career as $25,000 per year if interest isn't charged. For people who have six-figure earning potential, such judgments might be considered fair, and they would bite enough that they could discourage others from taking the place of the defendants.
There is an argument that patent trolls make a contribution to innovation the same way that stock markets contribute to the economy. When purchasing stock in a company on the open stock market, you buy a piece of the company but you aren't directly contributing to its future. Your investment goes to the former owner of the stock, not the company you are investing in. However, if you go trace that stock from previous owner to previous owner, eventually you get to the underwriter who did provide funding to the company. It would have been harder for the company to find those original investors if the issued stocks were non-transferable.
In a similar manner, patent trolls may provide an incentive for investment in technologies, and public disclosure through the patent system, because they provide a market for the patent rights. Why should a technology producer bother getting caught up in the ugly and expensive process of trying to enforce a patent when it is easier to sell the patent to a troll, keep a non-exclusive license to the technology, and continue focusing on the technology producer's core business?
Without the possibility of transferring the patent rights to a troll, and thus quickly capitalizing on the enforcement rights, the company may be less willing to invest in technologies, especially if competition is already strong and the likelihood of success is small. Or, the company may focus more on keeping the technologies secret, limiting the ability of others to learn from those technologies if the company goes belly-up or is just really good at maintaining secrecy.
Cable was originally created so that television signals could be re-transmitted to people who could not receive the signals because of blocking mountains. The continued right of cable providers to retransmit television signals, with appropriate compulsory licenses, is protected under 17 U.S.C. Sec. 111.
The article didn't give details regarding what patents are at issue. I went to PACER and searched for patent cases involving Rembrandt filed since January 1, 2007. Most of the cases were filed by Rembrandt Technologies, although one of them was filed by Motorola seeking declaratory judgment that it was not infringing on any valid claims owned by Rembrandt Technologies.
The complaints were not all the same, but here is the list of patents cited in the complaints:
An important question is whether it really matters whether Rembrandt Technologies hired the original inventors or not, or whether Rembrandt Technologies practices the inventions or not. Rembrandt Technologies purchased the patents and is trying to license, not practice the inventions, thus it is considered to be a patent troll. But, would it have been better had the original patent holder had been the one to file these suits?
The rights involved would not be any different, just the entity able to enforce those rights. If the original patent holder was a competitor of the defendants, then there would be more incentive to file these suits to stop competitors from practicing the invention altogether, rather than trying to obtain licensing fees. At least with a third-party patent holder, there is an incentive for the patent holder to license the patents broadly.
One way of looking at suits and transactions is that the original patent holder capitalized on the potential value of enforcing the patents by transferring those enforcement rights to a buyer willing to take on the enforcement risks. There are plenty of risks involved in enforcing patents (e.g., the cost of attorneys fees or the possibility that an adverse construction of the patent rights will destroy their enforcement value). Whether the original patent holder or a third-party takes on those risks changes who takes on those risks, but doesn't change the scope of the patents themselves.
I'm not sure if it is the story the submitter was trying to link to, but this article seems to cover the subject.
LOL. Google only makes a decent spell checker if you stop read what kind of pages it came up with.
Make sure that you are documenting not only what you do, but how you do it. If you are the only person who knows how to do a set of tasks, then you will be the IT technician who does those tasks. If you ensure that others can do those tasks, then you have a better chance of convincing others to have IT technicians work for you (thus making you the manager or team leader). Remember, if they can't replace you, they can't promote you.
The software == mathematics argument loses some wind when used to attack a patent application such as this one. Mathematics describes universal truths. This application describes a user interface feature. Mathematics are exact, and often uses specialized notation to avoid ambiguity. This application uses a lot of words to describe several concepts and uses words to establish the boundaries of what was created that is novel and non-obvious (sadly, words usually being quite a bit less precise than the various notations used by mathematicians). This patent application describes the application of software technology for a useful purpose. It does not describe some abstract mathematical concept.
The functionality of EVE that you described could support an argument that at least some of the claims are obvious given the state of drag-and-drop technology. You are right to be careful about the dates when the functionality existed. Even if EVE came out with the cited functionality before March 2006, there are circumstances where the EVE technology would not be considered prior art. USPTO patent examiners prefer prior art from at least 12 months before a patent application was filed because such prior art is solid and doesn't evaporate under some of the circumstances that affect technologies within the 12 months preceding an application.
Even combining the EVE technology described with pre-existing drag-and-drop technology probably would not be enough to knock out all of the claims. There are some pretty narrow claims in this application. Look at claim number 7:
The method of claim 1 [A computer-implemented method for manipulating objects in a user interface, comprising: providing the user interface including a first interface object operable to be selected and moved within the user interface; and in response to selection and movement of the first interface object in the user interface, presenting at least one additional interface object in the user interface in proximity of the first interface object, each additional interface object representing a drop target with which the first interface object may be associated] further comprising, prior to presenting the at least one additional interface object, identifying the at least one additional interface object with reference to at least one of a parameter associated with the first interface object, at least one currently instantiated object in the user interface, previous user interaction with the drop target, a user preference, a speed of movement of the first interface object in the user interface, a direction of movement of the first interface object in the user interface, a position of the first interface object in the user interface, and a position of a preexisting drop target in the user interface.With this more narrow claim, instead of a drop target such as "move to top of list" showing up as soon as you click on an object, the system waits until you start moving the cursor. If you are moving it quickly towards the top of the interface, a "move to top of list" drop target might appear. If you are moving it quickly towards the bottom of the interface, a "move to bottom of list" drop target might appear.
If that is the only claim that Yahoo! manages to get through the system, then it would easy to engineer around: just bring up the drop targets once the user clicks and holds on an object regardless of where the user is moving the mouse cursor.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. U.S. Const. Art. I Sec. 8 Cl. 8.
Copyright secures for a limited time an author's exclusive right to the author's writings. The ultimate goal of providing such protection is to to promote the progress of science. Whether people are thinking about the ultimate goal or not does not mean that they do not understand the purpose of copyright at all.
If this were a discussion of fair use rights and whether they are strong enough to ensure that copyright does not impair the progress of science, then it would make sense to focus more thought on the ultimate purpose of securing these rights. But it is hard to see how the progress of science is seriously impaired by suggesting that consumers do not have an inherent right to free and convenient copies of copyrighted works.
Possibly (quick thought: wouldn't it be nice if our presidential candidates were to rise to the top by word-of-mouth and not by aggressive, expensive campaigning?). Copyright infringement tends to reinforce the power of existing players though rather than opening the doors to new players. Why download or purchase (at a cheap price) the songs of unknown artist A when you can download the songs of well-known artist B for free? Sure, there may be some people who just download works at random (perhaps within a preferred genre), but those people tend to be in the minority. This tends to drown out the ability of independent artists to get people to listen to their works.
Lets say that nobody infringed on the copyrights held by record companies. If the average album sold for $15 and nobody downloaded the songs illegally, then that would provide an opportunity for smaller record companies or independent artists to entice consumers with albums selling for $10, $5, or less. But when consumers who are unwilling to buy the album for $15 just download the songs, they have less incentive to look around at alternative sources of entertainment.
With our current system of public water treatment and indoor plumbing, there's no longer any need for investment in the bottling and distribution of water in the United States. 'nuff said.
I disagree. The people in this video get some concepts mixed up (e.g., patents versus copyrights, economic rights versus moral rights). But, they seem to get the gist of what intellectual property rights are supposed to protect.
People definitely seems to struggle with their ideal view of copyright protection and their desire for convenience and low cost. Some of the people seemed to go to some lengths to rationalize copyright infringement.
One of the arguments given is that the artists do not see much of a profit from their works. That is, because the content creator has a bad deal with the content distributor, the consumer can legitimately chip away at the content distributor's profits.
This is poor rationalization. The ability of content creators to make reasonable deals with content distributors is a result of supply versus demand. Content creators that are good at controlling supply (e.g., programmers, who control supply simply by not having an overwhelmingly large population, members of the writers guild, who control supply through unionizing, or established artists, who have managed to survive the fickle markets) are in a better position to establish favorable deals than content creators who do not control supply very well (e.g., new musicians, who seem to grow on trees).
Copyright plays an important role in controlling supply. If there was no copyright, new musicians would have to avoid playing their songs in public or otherwise distributing their songs. Recording studios could troll for good songs, take them without any compensation, and hire their own musicians or established stars to take the songs to the big time. The marketing power of the content distributors would be much more important than it is today.
Copyright transferability plays an important role in stimulating demand. If the copyrights were completely non-transferable, then the risk of investing in content would become very high, reducing the demand from content distributors. Again, the marketing power of the content distributors would be much more important than it is today.
What is the effect of widespread infringement by consumers? The effect is that the risk of investing increases, again reducing the demand from content distributors.
Content producers can try to cut content distributors out of the loop, but that only works if consumers purchase from the content producers. Infringing on the copyrights of works that are in the hands of content distributors does nothing for content producers.
Remember, that even if content producers get no royalties for their works (something that is common with programmers), content distributors have to meet some threshold of reward to get content providers to assign their copyrights over the the content producers. The more risk there is in investing in a content producer (e.g., because of widespread copyright infringement), the less demand there is from content distributors, and thus the worse the deals are for content producers.
Sure you can. In the People v. Dlugash, the Appellate Court of New York held that a defendant could be found guilty of attempted murder for shooting a dead body that the defendant thought was still alive (but that might be dead). The court upheld the Legal Impossibility defense: the defendant was not guilty of actual murder. But the defendant was not completely off the hook.
All this talk of crime may be beside the point because these suits are all civil in nature, not criminal (remember O.J. being acquitted for murder but being found liable for "wrongful death?"). The burden of proof in civil cases is only a "preponderance of evidence," scales balanced between plaintiff and defendant, not the "beyond a reasonable doubt" requirement of criminal conviction, scales heavily tilted in favor of the defendant.
The judge might decide that the Howells have a defense based on the assertion that only the RIAA-authorized investigators downloaded the copyrighted materials. On the other hand, lets say that you drop off a really nice suit with the dry cleaners. You only authorize them to clean the suit. You think that they might be lending clothes out before they are picked up a la Seinfeld. Thus, you hire a private investigator to go the dry cleaner and offer to rent the really nice suit. The dry cleaner does not know that you hired the private investigator. The dry cleaner takes the private investigator's offer, exchanging the suit (for a short period of time in exchange for some payment). You sue.
Would the judge deny relief to you because you had authorized the private investigator to make the offer?
It would be difficult and risky to enforce such a scheme. It would be difficult because patent holders would search for loopholes to avoid the risk of being required to return licensing revenues. Attempts to work around the law could be as simple as requiring agreement that the licensee would not seek reimbursement if the patent was invalidated. Attempts could be more complex, perhaps relying on covenants not to sue or in-kind royalties. One risk of enforcing such a scheme is that patent holders would be less likely to license in the first place. There are already plenty of barriers to patent licensing (e.g., patent holders overestimating the worth of their rights). Placing all licensing revenues into de facto escrow would only add to the barriers. An additional risk is that the people with the most interest in invalidating patents would have less incentive to pursue options such as reexamination or seeking a declaratory judgment of non-infringement by invalidity. Why take on the expense of attacking a patent when it is easier to license the patent and wait for someone else to take on the expense of attacking it?
Just a fine point: binding precedents are generally not established by suing individuals who don't try to put up much of a defense. While the decisions of district court judges may have some persuasive impact (particularly if well-written), they do not create an interpretation of law that is binding on other judges. A case has to rise to the level of appellate review before interpretations of law that have to be followed by other judges, binding precedents, can be generated. Even then, appellate panels often issue non-precedential opinions (especially if the facts are too messy to establish a rule that can be applied in the future).
Someone who is unable or unwilling to put up a defense in a district court is unlikely to appeal an adverse decision. Recording studio lawyers are probably trying to use these lawsuits to increase the costs of using P2P software for copyright infringement (which would be $0 if there was no risk of being sued) while trying to fund the expense of pursuing additional lawsuits. Of course they are going to argue against interpretations of the law that would undermine this strategy, but applying their interpretation of existing rights rather than trying to expand the scope of copyrights seems to be their primary objective.
The UDRP is much more streamlined and cost-effective than other methods of dispute resolution such as going to court. Complainants often win even weak cases because many respondents do not even try to dispute the claims. Only 14% of UDRP disputes that have been decided were decided in favor of the respondent.
The poster does not even need a lawyer to proceed with a UDRP complaint (it might help, of course). Information about the process is available from ICANN.