Happy Halloween !

This is our Halloween “Great Pumpkin” for this year. The carving was done so as to leave a very thin transparent outer skin which gives the pumpkin its intense reddish glow from the red candle inside. The photograph was taken just 30 minutes ago, at midnite in Germany.

Great Pumpkin

Happy Halloween to all.
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Copyrights, Blogs, News, Content Aggregation and RSS Feeds

RSS and Atom Feeds: Really Simple Syndication

RSS feeds are revolutionizing the way that information is being processed on the Internet. Even Google just started their own Google Reader for RSS feeds this month.

What is the legal status of RSS feeds under Internet Law and IP Law (“intellectual property” law), especially in view of the fact that many blogs and news media make their content available through their RSS feeds? We include ATOM feeds here under the general rubric of RSS feeds, i.e. as “Really Simple Syndication“. Indeed, the IEEE sees Atom as the “standard in syndication“, even though the term RSS is everywhere used.

Implied Licenses Granted by Placing Material Online?

Eric Goldman at the Technology & Marketing Law Blog discusses whether making RSS feeds publicly available thereby grants an implied license of use to RSS feed users, and if so, how such an implied license could be negated, if necessary. But see Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine by Tom W. Bell, 76 N. Carolina L. Rev. 557 (1998).

As Goldman writes:
“[I]f a blogger makes a feed of his/her blog available, what can others [legally] do with that content?”

Take a look at his analysis and see also Scobleizer for a panoply of opinions on this topic. The non-exclusive implied license granted by placing materials online is also discussed at When One Thing Leads to Another – Linking and Metatag Liability, by Barbara S. Murphy and Lynn S. Walker, Georgia State University College of Law, Law and the Internet, Professor Wiseman, Summer 2003 (see II.1 in that article).

The Legality of Data Harvesting (not to be confused with E-Discovery Harvesting)

One issue that faces RSS feeds is the practice of “data harvesting” for purposes of creating websites which then sell ads to make money. Martin Schwimmer at the Trademark Blog refers to a ClickZ article by Pamela Parker which refers to other instances of data harvesting such as the ad aggregator Oodle.com or the job aggregator Indeed.com.

There are data harvesting cases which have been decided and which clearly support the principle that data harvesting is legal under some circumstances. See the article Golf Scores v. Yacht Sales: Copyright Law and Data Extraction by Javad Heydary and By No Other (related USA Today, Nautical Solutions Marketing v. Boats.com). At the same time, there are also cases which clearly have found other kinds of data harvesting to be illegal, albeit not necessarily on copyright infringement grounds, e.g. Register.com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000), aff’ d, 356 F.3d 393 (2d Cir. 2004). See Phillips Nizer for an abstract of that case and the Boston University School of Law, Journal of Science and Technology Law, Legal Update by James J. Tracy for a contract view of browsewrap agreements.

Terms of Use for RSS Feeds

The terms of use for RSS feeds published by mainstream publishers such as the New York Times clearly claim a full copyright to content syndicated by RSS feeds. These terms of use strictly exclude commercial use such as commercial data harvesting.

The New York Times offers over 30 free RSS feeds, albeit under the following terms and conditions:

“We encourage the use of NYTimes.com RSS feeds for personal use in a news reader or as part of a non-commercial Web site or blog. We require proper format and attribution whenever New York Times content is posted on your Web site, and we reserve the right to require that you cease distributing NYTimes.com content. Please read the Terms and Conditions for complete instructions.

NYTimes.com also offers a free headline feed for displaying headlines on personal or professional Web sites, for non-commercial purposes. For more information and instructions, see Add New York Times Headlines to Your Site.”

Use of Headlines Written by Other Sources

With regard to the use of headlines, the Japanese Intellectual Property High Court recently decided that it was copyright infringement for a commercial online enterprise – without asking for permission – to use newspaper headlines on its website from Japan’s largest daily newspaper. We do not doubt that courts in other countries would make similar holdings.

Fair Use of RSS Feeds and Attribution

The free use which the New York Times offers is essentially an expanded “fair use”, i.e. use of news on a “non-commercial Web site or blog”. This is essentially similar to the “Creative Commons” license found at the bottom of the LawPundit blog pages, where use of LawPundit material – with proper attribution – is permitted for non-commercial purposes. The NY Times also requires proper attribution of their materials, although attribution has an unclear status in copyright law as far as “fair use” of copyrighted materials is concerned.

As written by Mark A. Lemley, Rights of Attribution and Integrity in Online Communications, 1995 J. ONLINE L. , art. 2, par. 20:

“Both of these cases [Waldman Publishing Corp. v. Landoll Inc. and Robinson v. Random House Inc)] suggest that a right of attribution does in fact exist in United States law, at least in circumstances where the failure to attribute has a commercial effect. If you copy material without identifying it as copied, that fact may hurt you in a copyright infringement suit. Even if you cannot be sued for copyright infringement, your failure to attribute copied material may be actionable under the Lanham Act if it confuses consumers as to the source of the copied material. Taken together, these cases suggest that the worst cases of nonattribution will be taken care of by the existing law.”

Attribution not required for Works in the Public Domain

The rule is different for works in the public domain, where attribution is not required. This was decided in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). See Stacey L. Garrett, No need to Search the Nile: The Supreme Court Clarifies the Use of Public Domain Works in Dastar v. Twentieth Century Fox, Journal of Law, Technology & Policy (Univ. of Illinois), Fall, 2003.

Where is the Line between Commercial and Non-Commercial Use?

The line between a non-commercial or commercial website or blog is not clear. In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) , the US Supreme Court found:

“The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use. “[E]very commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” Sony Corp. of America v. Universal City Studios, Inc., 464 U.S., at 451 . In arguing that the purpose of news reporting is not purely commercial, The Nation misses the point entirely. The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price. See Roy Export Co. Establishment v. Columbia Broadcasting System, Inc., 503 F. Supp., at 1144; 3 Nimmer 13.05[A]1., at 13-71, n. 25.3.”

Many websites and blogs place advertising on their online pages to help pay for costs, e.g. of webspace, etc. and are not really “commercial” undertakings as such, nor are they generally viewed to be “commercial” in nature. Where will the courts draw the line?

What happens, for example, when an otherwise “non-commercial” website or blog is so successful that its commercial ads begin to reap actual profits for the website or for the blogger? Once that happens, such websites or blogs surely become “commercial” in nature, which makes it much more difficult, but not impossible, to invoke the “fair use” exception to the copyright laws.

But even if no profit is being made, could a site harvesting RSS feeds use RSS feed material to promulgate e.g. pornographic advertising on a website in the hope of gain? The answer here must surely be “no”, and evidence of purpose, rather than profit, ought to be sufficient.

Clear Terms of Use are Important

In any case, put into different words, RSS feeds “belong” as such to the originator of the RSS feed. Fair use can be made of these feeds, but not commercial use. The solution for the “grey cases” may be in part that RSS feed originators clearly declare the permissible uses of their materials on the website pages. The New York Times terms of use listed here provide a good model to start. Of course, no copyright holder can prohibit lawful fair use, even if such fair use were to be expressly denied by the copyright owner. There will be friction in this grey area.

What about RSS Feed Catalogues?

The most interesting legal question in this connection is whether the use of RSS feeds for legitimate “cataloging purposes” by a commercial enterprise, such as Technorati or Google BlogSearch, is fair use. We think it is in principle, because we find it to be a permissible “transformative use” as in the Arriba case. However, we do not know what the courts will decide in this regard.

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IP – Is "Intellectual Property" a Misnomer?

At Slate’s “Jurisprudence: The law, lawyers, and the court”, Tim Wu, Professor of Law at Columbia and a teacher of copyright law, has a nice October 17, 2005 article titled Leggo My Ego – GooglePrint and the other culture war, in which he makes the following comparison between the planned GooglePrint “book searches” and ordinary “maps”:

“Consider what it would mean, by analogy, if map-makers needed the permission of landowners to create maps. As a property owner, your point would be clear: How can you put my property on your map without my permission? Map-makers, we might say, are clearly exploiting property owners, for profit, when they publish an atlas. And as an individual property owner, you might want more control over how your property appears on a map, and whether it appears at all, as well as the right to demand payment.”

This idea by Wu mirrors the argumentation made by Larry Lessig at Lessig Blog:

“Property law since time immemorial had held that your land reached from the ground to the heavens. Then airplanes were invented — a technology oblivious to this ancient law. A couple of farmers sued to enforce their ancient rights — insisting airplanes can’t fly over land without their permission. And thus the Supreme Court had to decide whether this ancient law — much older than the law of copyright — should prevail over this new technology.

The Supreme Court’s answer was perfectly clear: Absolutely not. “Common sense revolts at the idea,” Justice Douglas wrote. And with that sentence, hundreds of years of property law was gone, and the world was a much wealthier place.”

The concept of “property by law” is as unnatural as it is thought to be natural. There was a day when nothing on the Earth was owned by anyone, prior to the emergence of Mankind. In the beginning, property was anything that could be defended as such. Indeed, most land property rights are rooted in the exercise of sheer force, the force by which a piece of property, at some distant point in history, was taken and occupied either from other men or from nature.

Let us take America as an example. Did Native Americans “own” all of the Americas just because they were there? And what about their own legends of having driven out other – former – groups from this property?

“As Europeans settled Michigan they crowded out the native Indian populations, destroying ancient burial sites and raiding them for treasures and artifacts. They were particularly fascinated by the burial mounds scattered throughout the state.

Even the native Indians claimed not to know who the mound builders were. Some recalled old legends that their ancestors had conquered and ousted an ancient evil civilization which had dug for copper and built mounds. “

So. Even in this traditional sphere of “real property claims”, there are no absolutes.

What about intellectual property?

If we look historically at copyrights, trademarks and patents, we find that in the good old days, there were no intellectual property rights at all. Rather, all of these rights are modern legal inventions which have dynamically expanded in the modern age.

Mark A. Lemley (William H. Neukom Professor of Law and Director of the Stanford Program in Law, Science and Technology) has an abridged article on Property, Intellectual Property, and Free Riding in the Fall, 2005 Issue of the Stanford Lawyer (Vol. 40, No. 1, pp. 34-39) which was originally published in the Texas Law Review, March, 2005.

Lemley writes that intellectual property law (IP Law) has nothing to do with common-law based property law as taught in the law books. Rather, IP Law is pure “statutory law”, created by legislation.

Lemley writes that “the basic economic justification for intellectual property law comes from what was only an occasional problem with tangible property – the risk that creators will not make enough money in a market economy to cover their costs“.

This original compensatory view, which was adopted to give holders of intellectual property rights a proper incentive to be creative, has recently mushroomed into a view “that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions“.

But that of course is a horse of a different color, which, in our own view, involves countervailing economic costs to society which are – thus far – not compensated for by the copyright holder (whereas e.g. real property holders have to pay property taxes).

According to Lemley, there are five such significant economic costs which attach to the granting of “overbroad intellectual property rights”. These are:

1. Market distortion, creating static inefficiencies (deadweight losses)
2. Dynamic inefficiencies, created by interfering with the ability of other creators to work
3. Socially wasteful rent-seeking behavior
4. Administrative costs
5. Distortionary overinvestment in research and development

In other words, or so we interpret Lemley’s view, if an intellectual property right holder wanted to capture the full social value of their inventions or writings, then that same holder should also be prepared to pay for the costs to society of granting that holder that full social value, costs which someone has to pay. Regretably, many intellectual property right holders do not see this aspect of the issue.

Of course, no one can capture the full social value of the works that they produce any more than they can pay for the costs to society which the protection of their work engenders. As a result, intellectual property rights are not absolute and permit a “fair amount” of “free riding”, of which something like “fair use in copyrights” would be a good example.

As Lemley writes:

“Granting intellectual property rights imposes a complex set of economic costs, and it can be justified only to the extent those rights are necessary to provide incentives to create. The economics of intellectual property simply do not justify the elimination of free riding.”

Lemley concludes that:

“Intellectual property law is in need of reform. Many of the problems stem from the association that lawyers and judges often make between intellectual property and real property. In fact, there are very few similarities between the two fields of law….”

“If people think of intellectual property as a form of property because of its name, then the name should probably go…let’s start talking about “IP.”

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Regulation of Political Speech on the Internet – Blogs and Blogging

VoteLaw has a posting about a one-page order just issued by the U.S. Court of Appeals for the D.C. Circuit which has “declined to reconsider a decision requiring the FEC to write new rules to carry out a 2002 campaign finance law“. Reference is made to a Boston Globe AP article of October 24, 2005 titled “Appeals court declines to review decision on campaign finance rules“.

This is a development of utmost importance to blogging. What is the background?

The Bloglines Blog (see also WingedPig) has a posting about the fact that the FEC (Federal Election Commission) has been reviewing regulations concerning political speech on the Internet, including blogging.

The Committee on House Administration held a hearing on the topic on September 22, 2005.

The issues involved are found in this statement by Committee Chairman Robert W. Ney which we have excerpted:

“The Committee is meeting today to hear testimony on the subject of regulation of political speech and activity on the Internet….

The Bi-Partisan Campaign Reform Act (McCain-Feingold or BCRA) required the Federal Election Commission (FEC) to develop regulations to implement the Act. The Commission determined that Congress did not intend for BCRA to cover Internet communications and, therefore, adopted regulations that exempted them.

Congressman Shays and Meehan, believing the FEC regulations did not follow the intent of BCRA, sued the Commission. The Court [see material below] agreed with the Congressmen, and ordered the FEC to rewrite the rules.

As a result of this lawsuit and Court decision, the FEC was forced to rewrite the rules that cover communications on the Internet. That new rulemaking began in March 2005.

While this new rulemaking was going on, some Members of Congress were making clear that they did not intend for BCRA to cover the Internet, and that they did not want the FEC regulating these communications. In March, Congressman Conyers and 13 of his colleagues wrote to the FEC seeking an exemption for web logs or blogs….

Identical bills were also introduced in both bodies to preserve the exemption – in the Senate by Minority Leader Harry Reid and in the House by Jeb Hensarling (R-TX). Their bill language was adopted by this committee, and included in H.R. 1316, the Pence-Wynn bill, reported by the committee on June 8, 2005.

These bi-partisan congressional endorsements of the exemption show there still some issues on which both sides of the aisle can agree. We’ll later hear from two witnesses who operate blogs, one conservative and one liberal, who probably do not agree on anything except that they do not want the FEC to be regulating what they say or do on their websites.

The debate here then is not between Republicans and Democrats or liberals and conservatives. Instead, the debate here is between those who favor regulation and those who do not….”

The court decision in question was described at the hearing by Scott E. Thomas, Chairman, Federal Election Commission as follows [we quote footnote 1 at the linked source]:

“The U.S. District Court for the District of Columbia concluded that the Commission’s broad Internet exemption would “severely undermine [the Federal Election Campaign Act’s] purposes,” and would permit “rampant circumvention of the campaign finance laws and foster corruption or the appearance of corruption.” Shays v. FEC, 337 F. Supp. 2d 28, 70 (D.D.C. 2004), aff’d, 414 F.3d 76 (D.C. Cir. 2005), petition for rehearing en banc filed (Aug. 29, 2005). Though the district court held some 15 regulations invalid, it nonetheless indicated that pending resolution of the litigation and adoption of needed revisions by the FEC, the challenged regulations remain in effect. Shays v. FEC, 340 F. Supp. 2d 39, 54 (D.D.C. 2004).”

This is the court decision which the D.C. Appeals Court declined to reconsider.

Here are the issues:

Thomas points out in his testimony that the Internet should be regulated by the BCRA because the Internet is becoming a major player on the political scene.

Vice Chairman Michael E. Toner of the FEC testified that political speech on the internet should not be regulated and that the BCRA was never intended to apply to the internet.

Commissioner Ellen L. Weintraub of the FEC emphasized that “the focus of the FEC is campaign finance. We are not the speech police.” Hence, Weintraub indicates that the proposed rules will in fact regulate the internet, but that substantial exemptions will be made.

Bradley A. Smith, Professor of Law at Capital University Law School, and former Chairman of the FEC, testified that the “the on-line community has reason to be concerned” and that “there is a sizeable and powerful lobby both in and out of Congress that clearly wants to regulate the internet….A regulated internet will strengthen those who already have political power and influence; a deregulated internet will boost the influence of ordinary Americans who just want to play by the rules….” Smith particularly points to the inherent conflicts created between internet regulation and press freedom, the resolution of which is a controversial matter. For the position of blogs, see The Volokh Conspiracy.

Lawrence Noble, Executive Director and General Counsel of the Center for Responsive Politics, testified that: “There is little doubt that the Internet can be used in much the same way television, radio and the print media have been before; as an avenue for the spending of large amounts of undisclosed soft money to finance various forms of political ads aimed at electing or defeating Federal candidates. “

Michael J. Krempasky of RedState.org provided testimony from one side of the political spectrum of blogging and Duncan Black of Eschaton provided testimony from the other side. Both stated that blogs should be exempted from the BCRA.

Some links to the history of this topic are:
CNet News.com
beSpacific
Volokh Conspiracy
pbaHQ

CDT
In the Agora
Michelle Malkin
Democracy Project
InstaPundit
Ask Jeeves Blog
Captain’s Quarters
Bainbridge
Patterico
Newspaperindex

Given this court decision and barring Congressional action, there will now be much, much more about this matter on the blogosphere, you can be sure.

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Crossposted to Punditmania.
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Stanford Law Grads as Technology Company General Counsels

As a Stanford Law School alum, I just received the Fall, 2005 Issue of the Stanford Lawyer (Issue 73, Vol. 40, No. 1) which I always read from cover to cover. This issue is powerpacked with technology.

The feature article by Josh McHugh (photography by Peter Stember) is entitled “Technology’s Field Generals” and profiles the general counsels at “Microsoft, Google, Cisco, eBay, Yahoo!, Qualcomm, Autodesk, and Oracle – Stanford Law School alums, all….

Although Stanford is known for its political liberalism, these general counsels show the other side of the law school equation, i.e. the indisputable fact that top faculty and top students also produce top legal people for business and technology.

It is not a question of politics – but rather one of competence.

As Stanford Law School Dean Larry Kramer writes in his introductory “Leading the Way in Law and Technology“:

“[T]his issue of Stanford Lawyer touches on just a few of the myriad ways in which Stanford Law School has become the world’s premier place for teaching and scholarship about the legal dimensions of new technology and the astonishing, often perplexing, society it is creating…. Though ranked as one of the top universities in the world, this is not a place where people sit on their laurels or tradition. Amazing things are going to happen here in the next decade, especially in law and technology.”
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CALEA Wiretap Law to Increase College Tuition by $450? – FCC Rule Under Fire

Sam Dillon and Stephen Labaton write at the New York Times online on October 23, 2005 that “Colleges Protest Call to Upgrade Online Systems“.

The protest relates to the 1994 “Wiretap Law”, the 1994 Communications Assistance for Law Enforcement Act (CALEA), which has been very broadly interpreted in an FCC notice issued on August 5, 2005 and published October 13, 2005 in the Federal Register (html, pdf, summary).

As written by the FCC at its AskCALEA compliance assistance page:

“In October 1994, Congress took action to protect public safety and ensure national security by enacting the Communications Assistance for Law Enforcement Act of 1994 (CALEA), Pub. L. No. 103-414, 108 Stat. 4279. The law further defines the existing statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization.

The objective of CALEA implementation is to preserve law enforcement’s ability to conduct lawfully-authorized electronic surveillance while preserving public safety, the public’s right to privacy, and the telecommunications industry’s competitiveness.”

The August, 2005 notice of the FCC provides:

“Responding to a petition from the Department of Justice, the Federal Bureau of Investigation, and the Drug Enforcement Agency, the Commission determined that providers of certain broadband and interconnected voice over Internet Protocol (VoIP) services must be prepared to accommodate law enforcement wiretaps, the Federal Communications Commission ruled today.

The Commission found that these services can essentially replace conventional telecommunications services currently subject to wiretap rules, including circuit-switched voice service and dial-up Internet access. As replacements, the new services are covered by the Communications Assistance for Law Enforcement Act, or CALEA, which requires the Commission to preserve the ability of law enforcement agencies to conduct court-ordered wiretaps in the face of technological change.

The Order is limited to facilities-based broadband Internet access service providers and VoIP providers that offer services permitting users to receive calls from, and place calls to, the public switched telephone network. These VoIP providers are called interconnected VoIP providers.

The Commission found that the definition of “telecommunications carrier” in CALEA is broader than the definition of that term in the Communications Act and can encompass providers of services that are not classified as telecommunications services under the Communications Act. CALEA contains a provision that authorizes the Commission to deem an entity a telecommunications carrier if the Commission “finds that such service is a replacement for a substantial portion of the local telephone exchange.”

Because broadband Internet and interconnected VoIP providers need a reasonable amount of time to come into compliance with all relevant CALEA requirements, the Commission established a deadline of 18 months from the effective date of this Order, by which time newly covered entities and providers of newly covered services must be in full compliance. The Commission also adopted a Further Notice of Proposed Rulemaking that will seek more information about whether certain classes or categories of facilities-based broadband Internet access providers – notably small and rural providers and providers of broadband networks for educational and research institutions – should be exempt from CALEA.

The Commission’s action is the first critical step to apply CALEA obligations to new technologies and services that are increasingly used as a substitute for conventional services. The Order strikes an appropriate balance between fostering competitive broadband and advanced services deployment and technological innovation on one hand, and meeting the needs of the law enforcement community on the other.”

As written at the New York Times:

“The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers. Because the government would have to win court orders before undertaking surveillance, the universities are not raising civil liberties issues….”

Lawyers for the American Council on Education … are preparing to appeal the order … Terry W. Hartle, a senior vice president of the council, said Friday….

The universities do not question the government’s right to use wiretaps to monitor terrorism or criminal suspects on college campuses, Mr. Hartle said, only the order’s rapid timetable for compliance and extraordinary cost….

Even the lowest estimates of compliance costs would, on average, increase annual tuition at most American universities by some $450….

Hat tip to Morningstar.com

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Stanford on iTunes – The Future is Here

Stanford on iTunes !?

Via if:book, the Free Range Librarian, and the Georgia State University Library, we were linked to an October 21, 2005 story by Doug Lederman at Inside Higher Ed News entitled “The sounds of Stanford, via the iPod” concerning the October 20, 2005 Stanford University announcement that it was cooperating with Apple to make audio content of various kinds available to students and alumni across the Stanford on iTunes website:

“The project has two prongs. Through the Stanford on iTunes Web site, the university will make lectures, music, sports and other content available not only to its alumni but to the public, free of charge. Stanford unveiled the site Thursday as it opened its reunion weekend, Stocker said, and alumni crowded around a campus booth downloaded music and lectures onto their iPods. “It’s already creating a lot of buzz,” he said.

The other part of the Stanford-Apple collaboration – and the one with perhaps greater implications for others in higher education – is a controlled-access Web site through which students will be able to download course materials. The restricted-access iTunes site will enable Stanford students to load course lectures and other audio content (and, eventually, video content, now that Apple is introducing a new version of iTunes that includes movies and other images) onto their iPods and listen to them whenever they wish.”

We definitely see applications here to the law school curriculum.
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Commercial Use of Newspaper Headlines Without Permission is Copyright Infringement in Japan

An October 7, 2005 Tokyo article by Shihoko Goto, UPI Senior Business Correspondent, titled “Online copyright ruling favors newspaper” in the World Peace Herald reports that the Intellectual Property High Court (see also history of the court) has ruled in favor of Yomuiri Shimbun in a copyright infringement case involving commercial use of it headlies.

Yomiuri Shimbun, not only Japan’s but also the world’s largest daily newspaper, had sued Digital Alliance, a small internet provider using Yomiuri’s and other newspaper headlines as “one-line news stories to its information Web site called Line Topics … without permission or paying a fee.”
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US Patent Office Upholds Absurd Patent Again – Prior Art in Comic Books?

[Note: updated on October 9, 2005]

OUT-LAW News, reports that “Patent Office upholds Eolas browser patent”. We do not mention the name of the company involved in that patent again. We ignore it. It does not deserve mention.

Read the 73-page! patent examiner’s statement here.

The saga of one of the biggest all-time scams in law and patent law is continuing. We had thought that the absurd “embedding” patent granted by the US Patent Office under the ridiculous patent law prevailing in the United States had been put on ice forever and now we read that the US Patent Office has unexpectedly upheld that patent in it its reexamination.

Thankfully, this ill-fated patent is not valid here in Europe and never will be:

[added Oct. 9] “The European Parliament … put the final nail in the coffin of the European Union’s controversial IT patenting proposal, voting overwhelmingly to reject the proposed directive.

The Parliament voted 648 to 14 with 18 abstentions to reject the directive, which would have become EU law if approved in its current form. The European Commission, which originated the proposal, said it respected the Parliament’s decision and said it would stand by its earlier promise not to put forward another proposal on the issue.

The directive was intended to harmonize EU member states’ laws on the patentability of IT-related inventions, but the real focus of interest was software. As originally drafted, the law would have put a relatively permissive system into place, which critics said would legitimize software and business-practice patents, bringing the EU into line with patent practices in the United States and Japan. Currently, patents on pure software and business processes are not enforceable in the EU, making it impossible for large companies to bring their patent arsenals into play in the region.

The system is seen as creating competitive advantages for the EU’s open-source economy, and for EU-based IT companies, which don’t have to worry about the overhead associated with patents on software. Open-source projects are considered especially vulnerable to software patents, and open-source leaders such as Linus Torvalds have spoken out against the current directive.”[end of addition]

What did the patent examiner find in his reexamination statement? It is a hopelessly rambling 73-page opinion which has great trouble getting to the point. The alleged “invention” to be patented is not clearly identified anywhere in those 73 pages. One must ask whether the patent examiner was completely overwhelmed by the material, as can be imputed from the constant unnecessary repetition found in that statement. One is given the impression that this patent turned on dozens of issues, whereas in fact, it only turns on one issue: prior art.

As we read from the 73-page tome, the Patent Office now in fact found that browser embedding was, as Microsoft and people such as Tim Berners-Lee had claimed, prior art. But the patent examiner has now split the hair in a new way, finding that this prior art was “static” browser embedding because [previously] “the user manually click[ed] on the ‘static snapshot” image to launch an external application” whereas the Eolas patent allegedly “invented” a new animal now called “dynamic” embedding which “[i]n contrast…do[es] not require user intervention to launch the executable application….”

In other words, Eolas has submitted a method (such methods should not be patentable in the first place) to the Patent Office – a method NEVER implemented by EOLAS itself in a product – which simply suggests that an executable application be run in the browser without clicking the mouse, i.e. by running the application as if the mouse had been clicked. And for this – for a child – foreseeable “invention”, millions or perhaps billions of dollars is to flow to this company and its investors. It is straight out of the comic books. Hmmm.

Typical for the absurdities found in the patent examiner’s statement is the observation that the “executable script” in the previous prior art Viola browser – even if it executed that script without a mouse click – was not prior art because: “[i]n such case, the browser and the ‘executable application’ merge into one program, and therefore cannot meet the requirement for a discrete ‘browser application’ and a discrete ‘executable application’ as claimed by instant ‘906 patent….”

So there you are folks, straight from the horse’s mouth. A script is not an executable application -it is, ah, er, “an executable part of the browser!”

But we find no less than 50,000 hits for the entry “executable script” in Google. Indeed many viruses are executable script. According to the patent examiner’s thoroughly confused statement, your standard executable virus is no longer an “outside” influence, but becomes part and parcel of your browser, which has “merged” with it. It’s a good thing that the anti-virus companies do not share this view because scripts as executable applications of code can in fact be removed.

The patent in question here dates to 1998 and the first internet virus surfaced in 1988 (the Morris Worm), 10 years before, with the first virus scanner appearing 1995. And the prior art for executable applications that run on computers without user intervention goes far back before that time:

“The term “virus” was first used in an academic publication by Fred Cohen in his 1984 paper Experiments with Computer Viruses, where he credits Len Adleman with coining it. However, a mid-1970s science fiction novel by David Gerrold, When H.A.R.L.I.E. was One, includes a description of a fictional computer program called “VIRUS” that worked just like a virus (and was countered by a program called “ANTIBODY”); and John Brunner’s 1975 novel The Shockwave Rider describes programs known as “tapeworms” which spread through a network for deleting data. The term “computer virus” with current usage also appears in the comic book “Uncanny X-Men” No. 158, published in 1982. And even earlier, in 1973, the phrase “computer virus” was used in the movie Westworld to describe a malicious program that emerged in the computer system of the theme park. Therefore, we may conclude that although Cohen’s use of “virus” may, perhaps, have been the first “academic” use, the term has been used earlier.”

So is the embedding of “dynamic” programs not requring a mouse click new? No.
If this case were not so “comic” it would be tragic.

Such are the so-called inventions that are being patented today by the US Patent Office – methods already anticipated 25 years before in comic books – and it is no wonder that the European Parliament recently rejected the patenting of this kind of absolute nonsense.

Update, October 9, 2005 – Other Blogs and Websites writing on this Topic

Unofficial Microsoft Blog

IPCentral

Two perspicacious comments at Copyfight are worth quoting:

One commenteer writes:

“In footnote 3 in the court of appeals it notes “An example of a DLL is spell check; a DLL is a component that can run only within another application.”

The district court upheld that an executable application refers to “any computer program code that is not the operating system or a utility, that is launched to enable an end user to interact directly with the data.”

The examiner now says that the claim (in 21 words here) “explicitly require the interactive processing to be enabled by an ‘executable application’ that is a separate application from the browser application”.

MSFT [Microsoft] could ask the judge to consider the narrowed interpretation. Those 21 words could mean the difference of US$500M or $0.00″.

Another comment at Copyright writes, quite correctly:

“Because of cases like this, a lot of tech inovation will leave the US in the next 10-50 years. US patent system was good for its time, but now it is becoming a bit archaic.”

We like the title of this comment posting at eWeek: “[company name omitted] no product, 1 person, 3 lawyers, 100 investors

Why work when you can potentially make millions by looking for things that others have thought of, that are already being used in principle, but that no one else has taken the time to write up for the hapless US Patent Office. It is the ultimate money scam.

Here as a great comment posting to the somewhat naive posting at eWeek by David Coursey which quite clearly describes what goes in the patenting of software and business methods and practices:

“Boy, you’ve really misunderstood the issue with software patents. You wrote: “The basic argument is the same that the open-source advocates always trot out: Patents lock up good ideas that should be freely available for use by anyone.” That so completely mischaracterizes the basic argument, that I don’t even know where to begin. The problem is that large companies take obvious ideas and prior art from out of the public domain and then patent them for themselves, thereby removing them from the public domain. They are able to do this because 1) only larger companies have sufficient resources to fund the legal fees involved with the patent process, and 2) our lax patent office lets them, by not performing proper checks for obviousness and prior art before granting patents. So the basic argument against patents actually is: “Patents allow large companies to steal obvious and non-original ideas that are currently freely available for use by anyone, and prevent anyone else (or at least anyone else who doesn’t have enough money to pay royalties) from ever using them again in the future”. So in their current form, where they are granted willy-nilly, they basically are an OBSTACLE to innovation, since any non-trivial piece of software that an innovator tries to write will inevitably wind up “infringing” on dozens, if not hundreds or thousands, of patented “innovations”, most of which are actually just generally accepted public domain techniques, like z-ordering in graphics, 1-click purchasing on websites, windowing systems, etc. The anti-patent argument is not about some hippie desire for “information to be free, man”. It’s about whether or not we will actually have a thriving, competitive, and innovative software industry in the future, or whether we’ll have a stifling oligarchy that IMPEDES competition and innovation. Personally I’m for innovation, competition, and the free market. Last I heard, those were somewhat important to a healthy capitalist market system.”

BRAVO.
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ConSource – The Constitutional Sources Project

Via the ZDNet Government Technology Blog (Phil Windley) we read:

“The recent focus on the Supreme Court and nominees may not seem like it has much to do with IT, but yesterday a friend pointed me to an interesting project that aims to create and maintain a ‘complete, reliable, easy-to-use and fully searchable online database of original source materials for the United States Constitution.’ The project, called ConSource is just getting started, but the goals are laudable.”

ConSource is The Constitutional Sources Project which is intended as an
“online repository of source materials for the United States Constitution”.

Make sure you play the Demo and have your speakers turned on.

Wonderfully done.

See There’s no quit in Berry for a unique “football view” of this project.
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European Union (EU) Digital Libraries Initiative – i2010: DIGITAL LIBRARIES

We have posted considerably on library digitization (Europeans write digitisation) in connection with Author’s Guild v. Google. There is no question that library digitization is inevitable. But how will it be achieved?

Via Out-Law.com News October 4, 2005 we read that the EU (European Union) is to follow Google’s lead on library digitization. They refer to the September 30, 2005 Communication from the Commission of the European Union, issued under the title COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS, COM(2005) 465 final, i2010: DIGITAL LIBRARIES, {SEC(2005) 1194}, {SEC(2005) 1195}. See also i2010. To see the role of the Commission in the EU, see EULegal.org)

We have excerpted the September 30 Commission Communication to raise points important also to library digitization projects in the United States and elsewhere:

“In a letter of 28 April 2005 to the Presidency of Council and to the Commission, six Heads of State and Government advocated the creation of a virtual European library, aiming to make Europe’s cultural and scientific record accessible for all. The Commission has welcomed this plan and will contribute to it through the i2010 flagship initiative on digital libraries….

The quantity and diversity of material in Europe’s libraries and archives is impressive. The total number of books and bound periodicals (volumes) in European libraries (EU 25) was 2,533,893,879 in 2001….

The main reason for digitising this material is to make it available to users in an online environment. In some cases, however, digitisation is not primarily used to make content more accessible, but to guarantee its survival. This concerns in the first place audiovisual material, where analogue formats deteriorate with time, and precious material is lost….

At present, only a small part of European collections has been digitised. Digitisation activities exist in all the Member States, but efforts are fragmented and progress has been relatively slow. This was underlined by the announcement of the Google initiative to digitise 15 million books from four major libraries in the US and one in Europe. If realised as planned, the Google initiative by far exceeds the efforts at national level in any of the Member States. Also in other parts of the world digitisation efforts are being stepped up. In India and China there are, for example, ambitious digitisation agendas in place covering material in different languages.

A number of challenges impact the pace and efficiency of digitisation in Europe.

Financial challenges: Digitisation is labour-intensive and costly. It takes a considerable upfront investment, which in most cases goes beyond the means of the institutions holding the information….

Organisational challenges: A ‘digitise once, distribute widely’ strategy can benefit all the organisations involved. Duplication of effort – digitising the same works or collections several times – must be avoided. This can only be achieved by a sustained co-ordination effort at national and European level. The latter can also enhance European added-value, where the final result is more than the sum of the parts.

New ways of working are necessary to make digitisation happen. Partnerships with or sponsoring by the private sector could contribute, but this type of partnership is not yet well developed….

Technical challenges: A key technical challenge is the need to improve digitisation techniques in order to make digitisation – for audiovisual material as well as books – more cost-efficient and affordable. For digitising written texts improved automatic book and document feeding equipment is necessary, as well as higher performance optical and intelligent character recognition for languages other than English.

English-language optical character recognition (OCR) systems have been tested and run on most print fonts over the past 10 to 15 years, and have been enhanced by automatic or semi-automatic spelling correction algorithms. Similar systems for other languages are less advanced, which leads to higher costs and lower quality results.

Legal challenges: Digitisation presupposes making a copy, which can be problematic in view of intellectual property rights (IPR). Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society foresees an exception for specific acts of reproduction by publicly accessible libraries, educational establishments, museums or archives. The exception is however not mandatory and has led to different implementations in the Member States. The limited use that can be legally made of the resulting digital copies is a further disincentive for digitisation.

The traditional model of library services based on lending of the physical items they own is not easily translatable to the digital environment. Under current EU-law and international agreements, material resulting from digitisation can only be made available online if it is in the public domain or with the explicit consent of the rightholders. Therefore a European digital library will in principle be focused on public domain material.

For literature, this means that only works from the early 1900s or before are available without copyright restrictions, depending on the year of death of the author. But even if works are out of copyright, the situation is not always straightforward. There may be rights attached to the different editions of a work that is itself no longer protected by copyrights, for example rights to introductions, covers and typography.

An online library offering works beyond public domain material is not possible without a substantial change in the copyright legislation, or agreements, on a case by case basis, with the rightholders.

In this context, the clarification and transparency of the copyright status of works is very relevant. In some cases, the costs of establishing the IPR-status of a work will be higher than its digitisation and bringing it online. This is particularly true for so called ‘orphan works’ – films or books for which it is impossible or very difficult to determine who are the rightholders. These elements are highlighted in the staff working paper and the online consultation accompanying this document.

Questions of online accessibility are not limited to intellectual property rights. Putting material online does not mean it can be found easily by the user, still less that it can be searched and used. Appropriate services allowing the user to discover and work with the content are necessary. This implies structured and quality description of the content, both the collections and the items in them, and support for its use (e.g. annotation)….”

This Commission Communication is a must-read for anyone legally involved in the digitization of library holdings. See also the Online Consultation and the European Digital Libraries FAQ.
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Edelman / Technorati Blogger Survey 2005 – Results Released

The results of the Edelman / Technorati Blogger Study 2005 are in.

Interesting is that the main reason given by the responders for their logging activity was “Visibility as an authority in my field”. In second place was “Create a record of my thoughts”. Definitely worth a look.
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Law Blogging will be part of the Law School Curriculum

This topic was first raised via Orin Kerr at The Volokh Conspiracy
and Matt Bodie at Prawfs Blog.

In non-sensationalistic postings not drawing much comment (whereas Miers is deafening the Ears at the moment), the discussion there is about the “Future of Law Blogging”, which – in our opinion – will have a far greater impact on American jurisprudence than the question of who sits on the SCOTUS bench.

In the opinion of the LawPundit, blogging is here to stay, and it will continue to take on greater importance.

As someone who taught legal writing at a law school for a number of years, it is my opinion that law blogging will in fact become a part of legal instruction. Indeed, if I had the itch to teach legal writing again today, then I would have each student submit his or her legal writings in blogs online rather than by “snail papers”.

The educational institution would of course have to set up special internet mechanisms for this to work, although, in theory, one could do it easily for free through Blogger or a similar free service (the prof would just have to be given access to the student’s specially created law blog).

For example, as the first assignment in my legal writing classes, students always had to write an original essay on the topic of What is Law? Many students had previously never really phrased such a question for themselves, even though this was to be their chosen profession. For that kind of an assignment, a blog would be ideal. A student’s acumen for law, by the way, could often be judged immediately from that first initial paper.

But much more importantly, student blogging on legal topics as part of the law curriculum would exercise the same beneficial influence on writing and thinking that any kind of regular writing has on people in the legal field. Regular LEGAL blogging forces people to organize their ideas, to research the topics they are writing about, to back up their statements with authorities and to write cogently so that their readers can understand them.

Another advantage of blogging is simply that it is fun. Imagine how popular a course on Legal Blogging would be. And I wager that such a course will be taught in the law schools soon. The fact is that the legal bloggers are having more impact through their blogs than through the “snail paper” law journals. Hence, it can not be long before law curriculums adjust to the new reality.

You read it here, at LawPundit, first.
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A European Perspective on Author’s Guild v. Google Print

BlogScript, an Edinburgh blog on “innovation, technology and the law” has a legal take on the lawsuit by Author’s Guild against Google from a European perspective.
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What is the Most Important Characteristic of a Judge or Justice ? – Impartiality

If I were ever to be in the situation where I would be judged, the most important thing to me would be the impartiality of the judge. That is the logical basis for the idea of “equal protection under the laws”.

A Judge or Justice should be neutral toward the parties – and yet – the political bodies always want a judge to be partial to a given way of thinking, thus not understanding the nature of the judge’s job at all. President Bush and Democrats and Republicans want to be confident that the selected Justice would decide cases the way THEY would want for the next 20 years. But Harriet Miers or any other Judge or Justice should decide cases the way that the LAW would want, indeed that the law requires, for – or against – the parties who are seeking a fair hearing in the courts. An impartial hearing.

Eugene Volokh at the Volokh Conspiracy asks the question “So What Is Really Important in a Justice, and How Do We Measure a Nominee Against Those Requirements?” … and Volokh lists 13 atrtributes for his test – but impartiality is not among them, and is of course cloaked under the heading of “ethics”, a broad term which can mean many things to many people. No, ethics is not the right word. Many a morally righteous judge has historically sent innocent “wrongly thinking” men to hang, and been virtuously – ethically – proud of it.

IMPARTIALITY is the essence of judging. NO FAVORITES.

Senator Orrin Hatch just recently wrote as follows in “John Roberts Isn’t Running for Congress: The Court is different“.

“First, what judges do limits what judicial nominees may discuss. The oath of judicial office and the Canons of Judicial Ethics require impartiality and prohibit making commitments regarding issues that may come before a court. Senators want to know many things about judicial nominees, but that desire to know is not the only consideration on the table. The separate imperative of judicial impartiality and independence means that nominees may not be able to answer two popular kinds of questions.

Many questions seek commitments or clues about how a nominee would rule on particular issues. Senators, and the law professors they consult, know many ways of artfully crafting such questions, but we all know those questions are designed to elicit political opinions from jurists who are ethically bound to be impartial. In 1993, Judge Ruth Bader Ginsburg, President Clinton’s Supreme Court nominee, explained why nominees cannot answer such questions, no matter how they are framed. She said: “A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

That is absolutely correct. We do not want a Justice whose main claim to fame is loyalty to the Democratic or Republican Party. We do not want a Justice whose main claim to fame is loyalty to President Bush. We want a Justice whose main claim to fame is loyalty to the LAW.

And that is where the problem with the Harriet Miers’ nomination begins. What is her loyalty to the LAW? How is that loyalty to be judged from her professional politically-inclined record, and from her recent record of behavior while in charge of preparing materials about Supreme Court nominees for the President. Do we get a sense of impartiality from these things?
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