December 2, 2005
.xxx Top Level Domain Discussion Tabled Again
The controversial .xxx domain has been tabled as a discussion item at the government advisory committee meeting this week. Approval of the new domain had been listed as the first item on the agenda. This is the second time that consideration has been postponed.
ICANN is getting a lot of pressure not to establish this domain from the U.S. government, European governments, and various advocacy groups. The Department of Commerce has said that it received over six thousand comments on the issue, most of them against. The reason given for the withdrawel was so that parties could review the 350 page report on the issue. Critics were skeptical as the report has been available since last August.
The report is not immediately available at the ICANN site, but a letter from the GAC chairman expressing concern over the approval of the Top Level Domain does show up along with the draft contract between ICANN and ICM, the potential registrar who has been promoting the TLD.
More on the story is here from Tech News World.
Zone Labs Hit With Libel Suit Over Spyware Designation
Software maker 180solutions has filed a defamation suit against Zone Labs, manufacturer of ZoneAlarm and other popular security software for telling some of 180solutions' customers that the company's software is a high risk privacy threat. The company has taken a lot of criticism from anti-spyware companies who have generally accused it of surreptitiously installing software and burying disclosures in legalese.
The suit is based Zone Lab's assertion that 180solutions' software monitors keystrokes and mouse movements. 180solutions claims that that Zone Labs is wrong in concluding that it is taking advantage of customers in this way. From their point of view, “the application ‘monitors’ the user’s activities to the extent that it looks for the use of one of the keywords” that pushes an ad at the consumer.
Zone Labs plans to vigorously defend the suit stating “We believe consumers have the right to know what programs reside on their computers, to understand what those programs are doing, and ultimately have the choice to keep or remove them from their systems.”
The suit was filed in King County Superior Court in Washington State last month.
December 1, 2005
Congress Considers E-waste proposals
Congress is evaluating competing proposals that would set standards for recycling of electronic equipment. Currently, some states have their own program. See Washington State's program here. The high lead, mercury, and other heavy metal content of consumer electronics makes these items problematic for landfills. At the same time, industry would like to see consistency across state borders.
The two proposals that are gaining the most traction are an upfront tax that would pay for the later recycling, and a program where consumers would take discarded items back to the manufacturer. HP is supporting the latter as they believe it would keep costs low. Although HP statements did not go into detail, it's likely that they would prefer consumer prices to stay steady than be rocked by a price increase, even if it is in taxes.
For more on this, click here.
November 30, 2005
RIM Loses Another Round in Patent Litigation
U.S. District Judge James Spencer denied Research In Motion's request to delay proceedings while the U.S. Patent and Trademark Office reviews the patents which RIM was found to have infringed. This could potentially cause RIM to shut down operations in the United States.
In a second ruling, Judge Spencer declared that the settlement agreement reached earlier between RIM and NTP, the patent holder, was not valid. The agreement was reached in June but was never finalized. RIM claims they have a workaround that can prevent BlackBerry customers from being disconnected.
The court will now hold hearings on injunctive relief and damages, which at last estimate were around $210 million.
More on this is here.
ICANN Hit with Antitrust Suit Over .com Deal
The BBC is reporting a conflict between the World Association of Domain Name Developers and ICANN, resulting in a lawsuit between the two groups. ICANN recently settled a long running dispute with Verisign over how Verisign handled responses when a web surfer typed in an unassigned .com or .net address. Rather than getting a page not found message, surfers were redirected to Verisign. ICANN objected and the settlement resulted in Verisign agreeing to a formal review process for any new services. ICANN, in turn, extended the contract to maintain the .com and .net database from 2007 to 2012, and possibly longer.
The World Association of Domain Name Developers filed suit alleging that this creates a monopoly in the .com name market as the automatic renewals of the contract will not allow anyone else from entering the .com market. The lawsuit also alleges price fixing and that it allows Verisign to raise prices.
The BBC article on this is here.
November 29, 2005
Developments in the Format Wars for the Next Generation DVDs
In an interesting story from GameIndustry.biz, there is a report that the DVD Forum has given the go ahead for a study to determine if a China-only HD format was feasible. The Chinese government had announced earlier that it intended to develop its own format rather than pay licensing fees to use either HD DVD or Blu-Ray. What is most interesting in the story is the mention of a demonstration of the next-next-gen format, a holographic disc capable of holding 1.6 terabytes. Of the two competing blue laser formats, the best capacity is around 50 gigabytes.
Blue ray technology was developed to market high definition videeo content, which required muxh more disc space for the higher resolution. However, other reports indicate that the first releases on the new format may not require much more than 9 gigabytes, slightly larger than current DVDs. Sony indicated that they would continue to use the mpeg 2 codec rather than move to mpeg 4 or use a Microsoft format. Sony claims that advanced compression doesn't always mean improved picture quality. Sony is the developer of the Blu-ray disc while Toshiba and others developed the HD DVD disc. As both formats come to market, costs are starting emerge as an issue with the industry gearing up for mass manufacturing and marketing. Price comparisons with each other and the existing model rely on uncertainties. Blu-ray is different from existing DVDs and thus start up costs for replicators will be higher. This means potentially higher prices for consumers initially. HD DVD can be adapted from existing duplicating lines. Blu-ray, however, has the support of a wide coalition of content providers and equipment manufacturers.
European Teens Like Downloading Free Music According to Jupiter Research
A new Jupiter Research report has some potential bad news for the music industry. It found that those in Europe who download music illegally outnumber paid subscribers by a ration of 3 to 1. It also found that a third of of those between the ages of 15 to 24 share music illegally. The concern is that this group may never develop legal buying habits, and this may erode the market for paid on-line music.
Jupiter analyst Mark Mulligan was quoted by the BBC as saying "The digital youth of today are being brought up on a near limitless diet of free and disposable music from file-sharing networks.
"When these consumers age and increase spending power they should become key music buying consumers. "Unless the music industry can transition these consumers whilst they are young away from free consumption to paid music formats, be they digital or CDs, they may never develop music purchasing behaviour and the recording industry could suffer long-term harm."
PC Pro cited a Harvard study the confirmed that music swapping led to a decline in CD purchases, but that the effect was uneven. The top 25% of artists saw sales declines while the bottom 75% saw increases.
November 28, 2005
Lycos Must Reveal Anonymous Dutch Web Site Owner
The Dutch Supreme Court ruled Friday that Lycos must reveal the identity of an anonymous web site owner who ridiculed a stamp trader. The case started years ago when Bernard Pressers was accused of fraud in stamp trading on eBay by the anonymous owner of a web page hosted by Lycos. Pressers sued the ISP to disclose the name and address of the owner. The trial court ordered the release of the information and Lycos complied. That information turned out to be wrong and Pressers demanded that Lycos track down the correct information. The trial court turned that request down, but an appellate court overruled that decision. The Dutch Supreme Court upheld the principle that an ISP may be sued under some circumstances to force the revelation of identity in some circumstances.
More details on this from the Register, here.
Supreme Court Takes eBay Patent Appeal
The Supreme Court has agreed to hear an appeal by eBay over a patent dispute with MercExchange. The patents at issue involve eBay's Buy it Now feature where consumers can buy an item for a fixed price. The District Court for the Eastern District of Virginia found that eBay violated two patents held by MercExchange and assessed damages of $29.5 million. However, the court declined to issue a permanent injunction against eBay. The Court of Appeals for the Federal Circuit held one of the patents invalid, reduced damages to $25 million, and ordered the lower court to issue the injunction. The Supreme Court will decide whether the appeals court erred in ordering the permanent injunction once infringement of a valid patent has been determined.
The Reuters story (via the Washington Post) on this is here.
November 27, 2005
New Law and Technology Papers from Bepress
Announcing new papers in Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology), part of the bepress Legal Repository found at
PUBLISHER: The Berkeley Electronic Press
Peter S. Menell - Professor of Law, UC Berkeley Boalt Hall School of Law and Director, BCLT
Robert P. Merges - Wilson Sonsini Professor of Law, UC Berkeley Boalt Hall School of Law and Director, BCLT
Pamela Samuelson - Professor of Information Management & Law, UC Berkeley SIMS & Boalt Hall School of Law and Director, BCLT
Howard A. Shelanski - Professor of Law, UC Berkeley Boalt Hall School of Law and Director, BCLT
TABLE OF CONTENTS:
Thomas Nachbar "Monopoly, Mercantilism, and Intellectual Property".
Kenneth Himma "Justifying Intellectual Property Protection: Why the Interests of Content-Creators Usually Wins over Everyone Else's".
Kenneth Himma "Information and Intellectual Property Protection: Evaluating the Claim That Information Should Be Free".
Kenneth Himma "Abundance, Rights, and Interests: Thinking about the Legitimacy of Intellectual Property".
Pam Samuelson "The Story of Baker v. Selden".
Read the abstracts in the continuation.
Thomas Nachbar, "Monopoly, Mercantilism, and Intellectual Property" (May 6, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 9.
Within intellectual property, Darcy v. Allen and the Statute of Monopolies are frequently, almost reflexively, invoked as establishing a baseline norm of economic freedom from which governments depart when they grant exclusive rights to deal in any trade or article of commerce. Against this free-market backdrop, all such grants are suspect, and only those that are justified by reference to their originality or utility are valid. Rejecting the dominant view of Darcy and the Statute of Monopolies, the paper provides a more detailed political and legislative history of both the compromise leading to Darcy and the adoption of the Statute of Monopolies than any to date, and consequently demonstrates that their true importance lies in their political, not economic, content. This reinterpretation suggests that both events are best viewed through the lens of political accountability, not economic doctrine. The paper concludes by considering the ramifications that this new understanding has for modern debates about intellectual property.
This paper is forthcoming in the Virginia Law Review.
Kenneth Himma, "Justifying Intellectual Property Protection: Why the Interests of Content-Creators Usually Wins over Everyone Else's" (November 15, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 13.
I attempt to show that the law should, as a matter of political morality, provide limited protection of intellectual property interests. To this end, I argue that the issue of whether the law ought to coercively restrict liberty depends on an assessment of all the relevant competing interests. Further, I argue that the interests of content-creators in controlling the disposition of the content they create outweighs the interests of other persons in using that content in most, but not all, cases. I conclude that, in these cases, morality protects the interests of content-creators, but not the interests of other persons and hence would justify limited legal protection of the former interests.
Forthcoming in Emma Rooksby (ed.), Information Technology and Social Justice, Idea Group, 2006.
Kenneth Himma, "Information and Intellectual Property Protection: Evaluating the Claim That Information Should Be Free" (August 12, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 12.
The claim "information should be free" (hereinafter ISBF) has become a rallying cry for those who believe intellectual property rights are illegitimately protected by the state. In this essay, I will attempt to (1) determine what ISBF means (which will require determining what the concept-term "information" means as used in ISBF); (2) evaluate what kind of support there is for ISBF; (3) determine whether ISBF conforms to ordinary views about the propriety of certain restrictions on the free flow of information; and (4) determine whether ISBF provides good reason for thinking that legal protection of intellectual property rights is illegitimate. I will argue that the most charitable interpretation of ISBF lacks adequate support in mainstream moral views and thus cannot ground a wholesale challenge to the legitimacy of intellectual property rights.
Kenneth Himma, "Abundance, Rights, and Interests: Thinking about the Legitimacy of Intellectual Property" (August 12, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 11.
It is sometimes argued that legal protection of intellectual property is illegitimate because intellectual objects are not subject to conditions of scarcity and can simultaneously be consumed by everyone. I argue that this line of argument is problematic. By itself, the claim that intellectual objects are unlimited and can be consumed by everyone simultaneously does not imply that we have some sort of moral claim to intellectual objects that is inconsistent with the legal protection of intellectual property. While this claim is certainly a reason against thinking that protection of intellectual property is morally justified, it falls well short of conclusive because it does not contain any information about what respective interests the creator and third parties have in intellectual objects. I conclude that a proper analysis of the legitimacy of intellectual property rights must take into account the morally protected interests that content-creators have both in the expenditure of their limited resources (e.g., time, energy, and intellectual labor) and in the value that the expenditures of such efforts brings into the world.
Pam Samuelson, "The Story of Baker v. Selden" (June 15, 2005). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 10.
The Story of Baker v. Selden: Sharpening the Distinction between Authorship and Invention
To be published in Jane C. Ginsburg and Rochelle C. Dreyfuss, Intellectual Property Stories (forthcoming Foundation Press 2005)
This Story grows out of a study of the Supreme Court Record and other historical materials about the well-known 1880 copyright case of Baker v. Selden. Among the surprises the Story reveals are that Selden was not, as some have surmised, the author of a treatise on bookkeeping, nor was he the inventor of the now universally used T-account system of bookkeeping. Selden's books are better described as minor variants on one another, consisting of 20-some pages of bookkeeping forms with sample entries, a short preface, and an introduction. Most of the 650 words of text in the last book puff the merits of his system rather than explaining how to use it. Baker, not Selden, is mentioned in works on the history of bookkeeping, and Baker's books on bookkeeping (but not Selden's) are still available in various public and university libraries. Though burdened with thousands of dollars of debt, Selden's widow hired a prominent intellectual property lawyer to represent her in the lawsuit against Baker which charged him with pirating the Selden system. She believed she was owed damages (in today's dollars) of a quarter-million dollars a year from Baker and his customers. Baker probably lost at the trial court level because he hired an inexperienced young lawyer; Baker won before the Supreme Court in part because he was represented by a team of supple heavy-hitters.
The most important lesson of this Story concerns the legal principle the Court was trying to promulgate. Although Baker v. Selden is widely cited as the genesis of the "idea/expression" distinction in copyright law, the Story shows that this distinction predated Baker. Nor is Baker the genesis of the "merger" doctrine (which holds that if an idea can only be expressed in one or a small number of ways, copyright law will not protect the expression because it has "merged" with the idea). The main objective of the Supreme Court's decision was to sharpen the distinction between authorship and invention. The complaint spoke of Selden as the author and inventor of several books and of a bookkeeping system. His lawyer kept speaking about its novelty in the state of the art. Selden's widow claimed exclusive rights not only to stop Baker from publishing competing books, but also to collect damages from all of Baker's customers for their use of the infringing system. That Selden had sought, but apparently not obtained, a patent on his bookkeeping system seems to have affected the Court.
To clarify the proper roles of patent and copyright in protecting the fruits of intellectual labor, the Baker opinion introduced a new framework for analyzing copyright claims. It directed courts to consider whether the defendant had copied the author's description, explanation, illustration, or depiction of a useful art (such as a bookkeeping system) or ideas, or had only copied the useful art or ideas themselves. In the absence of a patent, the useful art depicted in a work, along with its ideas, could be used and copied by anyone, even in directly competing works. Any necessary incidents to implementing the art (e.g., blank forms illustrating use of the system) could likewise be used and copied by second comers without fear of copyright liability.
The Baker opinion's rich analysis of the roles of copyright and patent in protecting intellectual creations has, over the past 125 years, spawned at least eight significant copyright doctrines, including four codified in the Copyright Act of 1976, as well as a few enduring controversies.
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