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August 13, 2005

The Patent System Sinks Even Lower

Just when you think the US patent system can't sink any lower, it does. Via Slashdot, Microsoft is attempting to patent the highlighting of numbers in a document:

Patenting the Highlighting of Numbers
Click on the image to see the first page in full size.

By the way, I don't blame Microsoft for attempting to patent this. I blame the US Patent and Trademark Office for allowing us to get to a place where any patent attorney would think this was even worth the effort, much less to have a reasonable chance of having the patent actually granted.

December 12, 2004

Creative Commons for Papers

The presentation and paper linked to in my previous entry are currently copyright by my company, 3Dsolve. I'm going to see if I can't institute a corporate policy of using Creative Commons licenses for public papers. If so, I'll revise the files and repost them.

June 23, 2004

Copyright Bizarreness

Via boing boing, via Joe Gratz, comes word of an interesting copyright infringement case:

Frank Field points to this press release from Irdial Records describing their settlement of a copyright dispute with WEA International.

Here's the story. Irdial put out a CD full of recordings of shortwave "numbers stations" called The Conet Project. The numbers stations are broadcast anonymously and more or less everyone acknowledges they have something to do with international espionage. For this reason, the recordings themselves are probably either not covered by copyright at all (in the case of recordings made by the United States government) or are protected by rights that are extremely unlikely to be enforced, since doing so would blow the broadcaster's cover.

Wilco sampled one of these recordings at the end of "Poor Places" on their album Yankee Hotel Foxtrot -- a numbers station repeating the words "Yankee... Hotel... Foxtrot". The sample was taken from the Conet Project CD. Irdial sued WEA, Wilco's record company, for copyright infringement in the UK. They claim, first, that their recording is unique because of the radio interference that surrounds it, and that this interference gives them a copyright in the recording. Second, they edited the recording to make it more interesting. Third, they processed the recording to make it clearer. Each of these, they say, gives them exclusive rights in their recording.

Now from the press release itself:

The recording we made of YHF was not made directly from the source of the people who originated the transmission, in other words, we did not go to the building of the originators, and plug our cassette machine into their tape machine to make this recording directly. This is a personally made recording of a shortwave transmission, with all of the nuances, noises and distortions short wave radio produces. These distortions, nuances and noises make our recording unique, and completely remove it from being a literal duplication of the original source. It is in art terms a piece of "Found Art", unique to itself, and impossible to replicate, since the above-mentioned qualities of shortwave interference are random effects.

In another context, imagine if we had made use of an anonymously authored traditional carol, which is copyright free. We make a creative use of this free work, and publish it in a special book of traditional Christmas carols, which have been typeset and designed by us. If someone then took a scan of one of the pages from our book, and then made a Christmas card out of it, or took this scan to use in their own book of Christmas carols, our copyright would have been infringed, irrespective of the fact that the original carol was copyright free. This example put to rest the argument that the recording of Phonetic Alphabet NATO is not protected by copyright, and that Irdial are indeed, the owners of it.

The key phrase is "we make a creative use of this free work." Irdial is claiming that the mere act of recording something over the air is making "a creative use of the work." By their logic, anyone, anywhere, anytime who records anything off the air is creating a derivative work (if what they are recording is protected by copyright) or an original work (if the source material is not protected by copyright). This is a bizarre argument. It equates tuning a radio dial with artistic expression.

The recording of Phonetic Alphabet NATO is directly analogous to a hydrophone recording of whale song. When a marine biologist makes a recording of Sperm Whales, the copyright of that recording belongs to the person or institute that made it. No secondary use of that recording can be made without the permission of the person or entity that made the recording; the physical recording itself is copyrighted, meaning that you cannot make a copy from that physical tape, minidisk or CDR without the explicit permission of the person who made it.
This is even more bizarre as an argument. Irdial is equating phonetic alphabet broadcasts with animal sounds. By definition, animals are not people and so cannot hold copyright (or any other property). Of course the biologist owns the recording he or she makes: the animal can't.

By Irdial's logic, if I'm using a radio -- from a walkie-talkie to a ham radio -- to talk with a friend, and I don't explicitly identify myself and claim copyright, then anyone can record my broadcast, copyright it, and control the use of it as they see fit. This cannot possibly be the case.

May 15, 2004

Patenting Relationships

eHarmony has been granted US patent number 6,735,568, "Method and system for identifying people who are likely to have a successful relationship":

The functions and operations of a matching service are disclosed. This includes approximating the satisfaction that a user of the matching service has in the relationships that the user forms with others and identifying candidates for a relationship with the user based on the approximated satisfaction. This also includes approximating the satisfaction that the user will have in a relationship with a particular candidate. The matching service also identifies two parties for a relationship. The matching service makes available a plurality of communication levels at which the parties can communicate. Each communication level allows the parties to exchange information in a different format. The parties are permitted to exchange information at one of the communication levels.
Not that I'm an intellectual property attorney, but I think they just patented the concept of taking tests to determine compatbility. Oh, my, is Cosmo in trouble.

April 18, 2004

Patents out of Control

Via Scot Hacker, a wonderful image illustrating how far out of control software patents have gotten.

August 28, 2003

Senate Hearing on P2P

A US Senator, Norm Coleman, has called for hearings into the RIAA's lawsuits against P2P users. The EFF is asking for help:

Make sure that the RIAA isn't the only organization in the room when the hard questions start coming; tell Congress that you want the Electronic Frontier Foundation to represent your interests in the hearings:

http://action.eff.org/action/index.asp?step=2&item=2770

Our goal is to have over 100,000 letters delivered by the time of the hearing...

It only takes two minutes or so to enter your address and customize a letter to your senators. If you find the RIAA's actions unacceptable, this is an easy way to let your voice be heard.

August 19, 2003

Step Away from the Crack Pipe

Last week, one of SCO's lawyers claimed, astonishingly, that the GPL is invalid:

Now, SCO is preparing to wheel out the software-industry equivalent of a nuclear bomb: It will argue that the GPL itself is invalid, says SCO's lead attorney, Mark Heise of Boies Schiller & Flexner LLP. Mr. Heise says the GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy. The GPL "is pre-empted by copyright law," he says.
Now the FSF has responded to this argument. If you don't have time to read it, it boils down to this: step away from the crack pipe.
This argument is frivolous, by which I mean that it would be a violation of professional obligation for Mr Heise or any other lawyer to submit it to a court. If it were true, no copyright license could permit the licensee to make multiple copies of the licensed program. That would make not just the GPL "illegal." Mr Heise's supposed theory would also invalidate the BSD, Apache, AFL, OSL, MIT/X11, and all other free software licenses. It would invalidate the Microsoft Shared Source license. It would also eliminate Microsoft's method for the distribution of the Windows operating system, which is pre-loaded by hard drive manufacturers onto disk drives they deliver by the hundreds of thousands to PC manufacturers. The licenses under which the disk drive and PC manufacturers make multiple copies of Microsoft's OS would also, according to Mr Heise, violate the law. Redmond will be surprised.

Of course, Mr Heise's statement is nothing but moonshine, based on an intentional misreading of the Copyright Act that would fail on any law school copyright examination. Mr Heise is referring to section 117 of the US Copyright Act, which is entitled "Limitation on exclusive rights: computer programs," and which provides that:

(a) Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

As the language makes absolutely clear, section 117 says that although the Act generally prohibits making any copy of a copyrighted work without license, in the case of computer programs one can both make and even alter the work for certain purposes without any license at all. The claim that this provision sets a limit on what copyright owners may permit through licensing their exclusive right is utterly bogus. It has no support in statutory language, legislative history, case law, or the constitutional policy that lies behind the copyright system. Were this argument actually presented to a court it would certainly fail.

I especially liked the "it would be a violation of professional obligation for Mr Heise or any other lawyer to submit [this argument] to a court" bit. Nice.

Between their frivolous lawsuits, their stock sales, and now this, it seems like SCO is digging their grave deeper and deeper. What are they thinking?

August 13, 2003

SCO Stock Sales

Following up on yesterday's blog entry, are SCO executives dumping stock? Via Slashdot, this from the Salt Lake Tribune:

SCO Group executives have sold about 119,000 shares of their company since it filed a lawsuit against IBM in March and the stock price increased more than fourfold.

Chief Financial Officer Robert Bench began the $1.2 million in executive share sales four days after Lindon -based SCO filed its lawsuit against Armonk, N.Y.-based IBM on March 6. Before Bench's sale, SCO insiders had not sold shares in more than a year, according to the Washington Service, a firm that tracks insider transactions...

SCO spokesman Blake Stowell declined to comment on the share sales. The company will comment on the sales when it announces fiscal third-quarter results Thursday, he said. The company has a market value of about $120 million and had 13.7 million shares outstanding at the end of April...

Bench has sold 17,151 shares in three separate sales since March 10, reducing his holdings to 228,043 shares, according to the Washington Service and regulatory filings. Vice President Michael Wilson sold his entire stake of 12,000 shares between July 14 and July 18, the Washington Service said.

For the CFO to have sold 6.9 percent of his stake over five months is probably defensible -- at that rate, it would take him a little over six years to sell his entire holdings. But for a VP to have sold his entire stake in that same five months? That doesn't look good.

August 12, 2003

"To... Inflate the Price of Its Stock"

This is from IBM's countersuit against SCO:

36. Rather than particularize its allegations of misconduct by IBM and others, SCO has obfuscated and altered its claims to foster fear, uncertainty and doubt about its rights and the righte others. In letters dated April 2,2003, and May 5, 2003... IBM expressly asked SCO to advise IBM as to what SCO contends IBM has done in violation of any of its agreements, and what SCO contends IBM should do to cure such violations. SCO refused. In fact, SCO's counsel stated, in an interview with Maureen O'Gara of LinuxGram, that it "doesn't want IBM to know what they [SCO's substantive claims] are".

37. SCO has obfuscated its claims and has hidden its supposed evidence because the evidence does not demonstrate the breaches and violations that SCO has alleged. Moreover, key developers and influential leaders in the open-source comunity, including leaders of Linux kernel development, have stated publicly that they are prepared immediately to remove any allegedly offending material from the Linux kernel. Rather than permit remediation or mitigation of its alleged injuries (which are non-existent), SCO has declined to reveal the particulars of the alleged violations in order to artificially and improperly inflate the price of its stock.

Coming from a company as respected as IBM, that's a serious allegation. If true, it would (or should) mean jail time for key SCO executives. Have they been profiting from the current imbroglio? I don't know, but you can judge for yourself.

August 10, 2003

Why SCO Can't Be Right

Via Larry Lessig, though it's a week and a half old, this essay (83K PDF) by Eben Moglen remains the simplest and clearest summary I've seen of the problems with SCO's Linux lawsuits. Recommended.

July 26, 2003

More on Push-to-Talk

More on the push-to-talk controversy:

Nextel Communications Inc. isn't backing down in the face of yet another challenge to its push-to-talk services from Verizon Wireless.

Verizon's latest complaint filed in federal court objects to Nextel's trademark of the words 'push to talk' and 'PTT.'

Nextel shot back that it is fully secure in the trademarks of those words. 'We are as confident in Nextel's trademark rights for Push To Talk and PTT as we are in our technological leadership. The U.S. Patent and Trademark office's approval of these marks indicate we're not alone in this belief. We're certain the courts will agree, too,' it said in a statement.

Citing a USPTO approval to defend your position is like saying you're good looking because your mother says so. Sure, it may be true, but since almost anyone can say it, it doesn't matter.