Quotulatiousness

September 17, 2013

Revisiting “Sherlock Holmes and the case of public domain”

Filed under: Books, Law, Media, USA — Tags: , , , — Nicholas @ 08:01

If you’ve been following along at home, the estate of Sir Arthur Conan Doyle has been conducting a remarkable rearguard campaign to ensure that the last ten Sherlock Holmes short stories do not enter public domain. Earlier this year, we looked at The case of the over-extended copyright and Sherlock Holmes and the case of public domain. The estate is now involved in a lawsuit where TechDirt‘s Mike Masnick says they are pushing a theory of copyright that might work to infinitely extend copyright protection to certain works:

For a few years now we’ve discussed a few times some of the confusion as to why Sherlock Holmes isn’t considered in the public domain in the US, even though he probably should be. As we’ve explained, all of Sir Arthur Conan Doyle’s Sherlock Holmes books except for one are in the public domain. The Conan Doyle estate claims that having that single book under copyright means that the entire character is covered by copyright. Earlier this year, we pointed out that a noted Sherlock Holmes scholar (such things exist!) named Leslie Klinger had decided to file for declaratory judgment that Sherlock Holmes is in the public domain, following a legal nastygram from the Estate, arguing that it needed a license fee for Klinger’s latest book.

The Conan Doyle Estate has now filed its response to the motion for summary judgment, and it’s an astounding study of ignorance concerning copyright law and the public domain. While it admits that there are only ten short stories (from that one remaining book) that are under copyright, it still argues that those ten stories lock up pretty much everything else. First, it argues that the characters of Sherlock Holmes and Dr. Watson continued to grow as personalities in those last ten stories, and that the stories were non-linear (i.e., some took place earlier in their fictional lives), it more or less encompasses everything, even those public domain works.

    The facts are that Sir Arthur continued creating the characters in the copyrighted Ten Stories, adding significant aspects of each character’s background, creating new history about the dynamics of their own relationship, changing Holmes’s outlook on the world, and giving him new skills. And Sir Arthur did this in a non-linear way. Each of the Ten Stories is set at various points earlier in the two men’s lives—and even late stories create new aspects of the men’s youthful character. In other words, at any given point in their fictional lives, the characters depend on copyrighted character development.

Of course, if that’s true, it basically presents a way to make copyright on characters perpetual. You just need to have someone continue to release new works that have some minor change to the character, and they get to pretend you have a new starting point for the public domain ticker. That can’t be what the law intended.

Update, 3 January 2014: In a slight surprise, the court has ruled that the character is no longer protected under US copyright laws.

Update the second, 17 June 2014: The appeal has been heard, and the original decision has been confirmed and the characters of Sherlock Holmes and Doctor Watson are in the public domain in the United States.

It is legal to publish stories about Sherlock Holmes and Dr. Watson without the permission of their creator’s estate, because those characters are in the public domain. That’s a straightforward reading of current copyright law, and the Seventh Circuit confirmed it yesterday, upholding a lower court’s ruling that Holmes fan Leslie Klinger has the right to edit an anthology of Sherlock stories by contemporary writers.

It’s a welcome decision. The argument offered by Arthur Conan Doyle’s estate rested on the fact that 10 Sherlock stories were published after 1923 and therefore have not yet entered the public domain. Because those stories introduced new elements to Holmes’ and Watson’s fictional lives, the estate’s attorneys claimed that the characters were not fully created until after 1923 and therefore aren’t in the public domain after all. At a time when copyright terms are constantly being extended into the future, the estate was effectively attempting to enact a stealth extension into the past.

August 29, 2013

New Zealand bans (most) software patents

Filed under: Law, Technology — Tags: , , , — Nicholas @ 09:27

Hurrah for New Zealand:

A major new patent bill, passed in a 117-4 vote by New Zealand’s Parliament after five years of debate, has banned software patents.

The relevant clause of the patent bill actually states that a computer program is “not an invention.” Some have suggested that was a way to get around the wording of the TRIPS intellectual property treaty, which requires patents to be “available for any inventions, whether products or processes, in all fields of technology.”

Processes will still be patentable if the computer program is merely a way of implementing a patentable process. But patent claims that cover computer programs “as such” will not be allowed.

It seems there will be some leeway for computer programs directly tied to improved hardware. The bill includes the example of a better washing machine. Even if the improvements are implemented with a computer program, “the actual contribution is a new and improved way of operating a washing machine that gets clothes cleaner and uses less electricity,” so a patent could be awarded.

August 20, 2013

Everything Is A Remix

Filed under: Business, Law, Liberty, Media, Technology — Tags: , , , — Nicholas @ 10:09

Remixing is a folk art but the techniques are the same ones used at any level of creation: copy, transform, and combine. You could even say that everything is a remix.

H/T to American Digest for the link.

July 20, 2013

“A man walks down the street in that hat, people know he’s not afraid of anything” – except copyright lawyers

Filed under: Law, Media — Tags: , , , , — Nicholas @ 08:41

At TechHive, Leah Yamshon talks about the fuzzy edge of law in the fan community:

Undying devotion to your favorite TV show can lead to much worse than a sedentary life parked on the couch. For Stephanie Lucas, it threw her right in the middle of an intellectual-property lawsuit: In March she was hit with a cease-and-desist order from 20th Century Fox Television.

Her actionable offense? She was selling a knitted hat inspired by a Fox TV show on Etsy.

Lucas is a member of the Firefly fan community, a group dedicated to Joss Whedon’s short-lived “space western” series that originally aired on Fox. “I’m absolutely in love with this show and its characters,” Lucas says. And thus her shop features one special item dedicated to her fellow Browncoats (a nickname for the Independence fighters in Firefly, and now for the fans themselves).

[…]

The Etsy market is full of unofficial, handmade hats.

The Etsy market is full of unofficial, handmade hats.

Fans who had been knitting these hats for years were now screwed, thanks to Fox’s claim that they broke the law after the official version debuted. But which law?

“Merchandising rights is a monster that has grown without any proper legal backing,” says Madhavi Sunder, a professor of law currently at University of California, Berkeley, with a specialty in intellectual property and culture. “Under traditional copyright law, the exclusive right to make these goods is not there,” she says. The U.S. Supreme Court has made no rulings in regard to merchandising rights, so intellectual-property violations have to be considered on a case-by-case basis.

Intellectual property is protected under both trademark and copyright, but the two concepts are different: Trademark protects names, terms, and symbols used to identify an original work or brand, and copyright protects the creative work itself. According to U.S. copyright law, the only groups with the right to distribute works based on an original creation are copyright holders. So, technically, only the original story creators are allowed to make pieces featuring images and concepts for which they hold the copyright.

June 7, 2013

Taking the battle to the patent trolls

Filed under: Business, Law — Tags: , , , — Nicholas @ 08:01

In The New Yorker, Tim Wu suggests some lines of counter-attack to use against patent trolls:

There are good laws in place that could fight trolls, but they sit largely unused. First are the consumer-protection laws, which bar “unfair or deceptive acts and practices.” Some patent trolls, to better coerce settlement, purposely misrepresent matters such as the strength of their patents, the extent of other settlements, and their actual willingness to litigate. Second, there are plenty of remedies available under the unfair-competition laws. Some trolls work by aggregating an enormous number of patents, and then present the threat that one of their thousands of patents might actually be valid. The creation of these portfolios for trolling may be “agreements in restraint of trade” under Section 1 of the Sherman Antitrust Act, or they may “substantially lessen competition” under the Clayton Antitrust Act. More generally, the methods of the trolls are hardly what you would call ordinary methods of competition; they should be considered, rather, what the Federal Trade Commission calls “unfair methods of competition” under Section 5 of the F.T.C. Act. The Commission has the power to define and punish methods of business that are inherently harmful with few or no redeeming benefits, and that’s what trolling is. Finally, it is possible that the criminal laws barring larceny and schemes to defraud may cover the conduct of some trolls.

Unfortunately, other than in Vermont, these laws remain largely unenforced, for reasons that aren’t particularly good. Trolls, to switch metaphors, are like cancer cells: they mimic ordinary activity, namely the assertion of patent rights. A war on trolls could become a war on patent holders in general. Since the line between the two can be fuzzy, the argument is that war might deter some real invention. It might, for example, lump universities in with the extortion artists.

But that justifies caution, not inaction. All law enforcement involves this problem of sorting. There is a narrow line between the legitimate trader who knows the stock market well and the criminal inside trader, yet that doesn’t mean securities laws should be left unenforced.

June 4, 2013

High Noon for patent trolls

Filed under: Business, Law, USA — Tags: , , , , — Nicholas @ 09:17

At Techdirt, Mike Masnick has some very good news:

Back in February, we were a bit surprised during President Obama’s “Fireside Hangout” when he appeared to speak out against patent trolls. Historically, most politicians had always tiptoed around the issue, in part because the pharma industry seems to view any attack on patent trolls as an existential threat — and, frankly, because some small time patent holders can also make a lot of noise. However, it’s become exceptionally clear that there’s political will to take on patent trolls. We’ve noted five different patent law bills introduced in Congress, all targeting patent trolls in one form or another.

And now, it’s been reported that President Obama is going to come out strongly against patent trolling, directing the USPTO and others to fix certain issues, while also asking Congress to pass further laws to deal with patent trolling. The President will flat out note that patent trolls represent a “drain on the American economy.” The announcement will directly say that “patent trolls” (yes, they use the phrase) are a problem, while also talking about the problem of patent thickets like the infamous “smartphone wars.”

The plan is scheduled to be released later today, but we’ve got a preview of the specific plan, and let’s take a look at each of the suggestions quickly. I’m sure we’ll be discussing the concepts in much more detail for the near future. The plan is split into two different parts: legislative actions (i.e., asking Congress to do something) and executive actions (i.e., ordering administration agencies/departments to do things). Let’s start with the executive actions, since those are likely to have the more immediate impact.

This is excellent news, at least for anyone not currently working as a patent lawyer for one of the trolls…

June 1, 2013

QotD: Internet espionage

Filed under: China, Humour, Quotations, Technology — Tags: , , , — Nicholas @ 08:26

A new report says that the Chinese are hacking American computer networks at an alarming rate. This is hardly news. I’ve been including the phrase “早安，我抱歉有沒有在這封電子郵件中的商業秘密或加拿大色情。請停止殺害酷動物啄木鳥醫學。剛剛買了一些偉哥了” at the bottom of every e-mail for months (I put it just above where it says “Hello Mr. Holder!”). It means, according to Google translate: “Good Morning, I’m sorry there’s no trade secrets or Canadian porn in this e-mail. Please stop killing cool animals for pecker medicine. Just buy some Viagra already.”

What is new is the scope of the problem the report lays out. This is a thorny issue and I think the U.S. needs to be much, much more aggressive in combating it. Why it’s not a bigger issue for the WTO, for instance, is baffling to me. They are stealing our stuff, which strikes me as a bigger deal than taxing it at the border.

Explaining to the Chinese leadership that they shouldn’t be doing this because it’s wrong is like explaining to a dog licking its nethers that what he’s doing is bad manners: To the extent they understand at all, they couldn’t care less. They respect power. They understand when you put a price on bad behavior. So we need to put a price on Chinese hacking. It’s really that simple. The hard thing to figure out is how.

Jonah Goldberg, “Chiiiiiicoms in (Cyber) Spaaaaaaaaaaaace!”, The Goldberg File, 2013-05-31

May 19, 2013

IP lawyers whine about patents and 3D printing

Filed under: Books, Law, Media, Technology — Tags: , , , , — Nicholas @ 08:52

Cory Doctorow appears to have been plagiarized by real life:

Two minor characters from my novel Makers have apparently come to life and written an article for 3D Printing Industry. These two people are patent lawyers for Finnegan IP law firm, Washington, DC, which I don’t recall making up, but this is definitely a pair of Doctorow villains (though, thankfully, I had the good sense not to give them any lines in the book — they’re far too cliched in their anodyne evil for anyone to really believe in).

These patent lawyers are upset because the evil Makers (capital-M and all!) are working with the Electronic Frontier Foundation to examine bad 3D printing patents submitted to the US Patent and Trademark Office. The problem is that 3D printing is 30 years old, so nearly all the stuff that people want to patent and lock up and charge rent on for the next 20 years has already been invented, and the pesky Makers are insisting on pointing out this inconvenient fact to the USPTO.

This breaks the established order, which is much to be preferred: the UPSTO should grant all the bullshit patents that companies apply for. The big companies can pay firms like Finnegan to file patents on every trivial, stale, ancient idea and then cross-license them to each other, but use them to block disruptive new entrants to the marketplace. The old system also has the desirable feature of arming patent trolls with the same kind of bullshit patents so that they can sue giant companies and disruptive startups alike, and Finnegan can be there to soak up the tens of millions of dollars in legal fees generated by all this activity.

May 16, 2013

Tim Harford on the patent system’s failings

Filed under: Business, Law, Technology — Tags: , , , , — Nicholas @ 08:15

The question seems to be is it totally broken or only partially broken?

According to one well-publicised estimate, there are 250,000 patents relevant to a modern smartphone. Even if the number is one-tenth of that, it suggests an impossible thicket of intellectual property through which a company must hack to bring a cool new product to market.

A key issue is something called the hold-up problem. If a $1bn product depends on 1,000 patents, it is clearly impossible to pay the typical patent holder more than $1m. But any patent-holder could try to extort many times that amount by threatening to block the whole project.

Large firms have responded to this problem by buying or developing large collections of patents. This gives them the ability to launch countersuits, and that threat should make rivals reasonable. But although defensive patenting looks like a pragmatic solution, it has costs and limits. The wave of defensive applications swamps patent offices, which means more poor-quality patents and longer delays.

“Patent trolls” — a derisive name for companies that make money purely from their patents — have less to lose in a patent war but although some are legitimate, others are extortionists. And while established players may reach cosy understandings, a young company with a new idea may find it impossible to break into a market that is thick with defensive patents. If only the big boys can play the patent game, innovation will suffer.

April 30, 2013

Barnes & Noble files a great argument for reforming the patent system

Filed under: Business, Law, USA — Tags: , , , — Nicholas @ 15:22

At Techdirt, Mike Masnick has to restrain himself from just quoting the whole B&N submission to the Federal Trade Commission and the Department of Justice:

As Groklaw notes, the B&N filing is clear, concise and highly readable. It outlines the problem directly:

    The patent system is broken. Barnes & Noble alone has been sued by “non practicing entities” — a/k/a patent trolls — well over twenty-five times and received an additional twenty-plus patent claims in the last five years. The claimants do not have products and are not competitors. They assert claims for the sole purpose of extorting money. Companies like Barnes & Noble have to choose between paying extortionate ransoms and settling the claim, or fighting in a judicial system ill equipped to handle baseless patent claims at costs that frequently reach millions of dollars.

As they point out clearly, even when they have a very strong case — either when they don’t infringe and/or when the patent is bogus, a lawsuit is incredibly costly in terms of time, money and effort.

    In the current system, patent trolls overwhelm operating companies with baseless litigation that is extremely costly to defend. Patent cases generally cost at least $2M to take through trial, and frequently much more. Litigating, even to victory, also entails massive business disruption. Companies are forced to disclose their most sensitive and top-secret technical and financial information and must divert key personnel from critical business tasks to provide information and testimony. The process is exceptionally burdensome, especially on technical staff. Document discovery and depositions seem endless.

    Patent trolls know this and as a result, they sue companies in droves and make settlement demands designed to maximize their financial take while making it cheaper and less painful to settle than to devote the resources necessary to defeat their claims. The current system lets them do so even with claims that are unlikely to prevail on the merits. That is because, whether win lose or draw, the rules effectively insulate trolls from negative consequences except perhaps a lower return than expected from any given company in any given case. They can sue on tenuous claims and still come out ahead. And so the broken system with its attendant leverage allows trolls to extract billions in blackmail from U.S. companies and, in the final analysis, consumers.

One of the great things about the filing is that it reminds the FTC and the DOJ of the constitutional underpinnings of patent law — not that patents are required or guaranteed, but that their purpose is to promote the progress of the useful arts. If that is not happening, then the use of patents in such a manner should be seen as unconstitutional.

February 24, 2013

Sherlock Holmes and the case of public domain

Filed under: Books, Law, Media, USA — Tags: , , , , — Nicholas @ 10:36

Following up on an earlier post (“The case of the over-extended copyright“), The Economist explains why there is still legal wrangling going on over the copyright claims on Sherlock Holmes:

The situation is muddled by differing copyright regimes in America and elsewhere. No one disputes that the copyright has expired on Conan Doyle’s work anywhere where protection ceases 70 years after an author’s death (he died in 1930). Yet when America reformed its copyright rules in 1978 to introduce a “life plus” model in harmony with the rest of the world for works created starting in 1978, it retained its older term-limited system for property created between 1923 and 1977. Works produced within that range have had their expiration extended to a fixed 95-year term from first publication; anything produced earlier is in the public domain. This umbrella of protection covers ten Holmes stories published in America for the first time as part of The Case-Book of Sherlock Holmes in 1927. These stories are still under copyright until January 1st 2023.

[. . .]

The estate also asserts some trademark rights on the Holmes characters, but Mr Klinger confirms to your correspondent that this was not part of the license claim. Jennifer Jenkins, the director of Duke University’s Centre for the Study of the Public Domain, says trademark protection would be inapplicable, in any case. “Trademark law doesn’t fit what they’re claiming to own or what they’re trying to stop,” she says. Ms Jenkins also dismisses any copyright claim the estate might have to any pre-1923 elements of Holmes’s biography. “The problem is that Sherlock Holmes and Watson are quite clearly in the public domain.” The estate did not respond to a request for details about its intellectual property.

[. . .]

An expert in the duration of copyright terms in America, Peter Hirtle of Cornell University finds no basis for the Conan Doyle estate to claim general ownership over aspects of Holmes from stories that are in the public domain. “Let’s imagine that the fact that Holmes plays the violin was included for the first time in one of the copyrighted stories,” he says via e-mail, “then it can’t be included in any new story that draws on the public domain versions.” But if the “Company” stories rely entirely on public-domain elements, then the estate has no ground to stand on, he adds.

February 7, 2013

Canadian companies lobby the government for the right to install rootkits on your electronic devices

Filed under: Cancon, Law, Media, Technology — Tags: , , , , — Nicholas @ 00:01

Michael Geist reports on a recent lobbying attempt that should be thrown out with contempt if we lived in a just world:

The deadline for comments on Industry Canada’s draft anti-spam regulations passed earlier this week with a group of 13 industry associations — including the Canadian Chamber of Commerce, the Canadian Marketing Association, the Canadian Wireless Telecommunications Association and the Entertainment Software Association of Canada — submitting a lengthy document that, if adopted, would gut much of the law. The groups adopt radical interpretations of the law to argue for massive new loopholes or for the indefinite delay of several provisions. I will focus on some of the submissions shortly, but this post focuses on the return of an issue that was seemingly killed years ago: demands to permit surreptitious surveillance by the copyright owners and other groups for private enforcement purposes.

During the anti-spam law debates in 2009, copyright lobby groups promoted amendments that would have allowed for expansive surveillance of user computers. Coming on the heels of the Sony rootkit scandal, the government ultimately rejected those proposals (the Liberals had plans to propose such amendments but backed down), leaving in place an important provision that requires express consent prior to the installation of computer software.

[. . .]

The Canadian Chamber of Commerce and other business groups want to ensure that the anti-spam law does not block their ability to secretly install spyware on personal computers for a wide range of purposes. In doing so, these groups are proposing to turn the law upside down by shifting from protecting consumers to protecting businesses. The comment period on the draft regulations may have closed, but it is not too late to tell Industry Minister Christian Paradis or your local Member of Parliament to reject demands that would gut the anti-spam bill and legalize spyware for private enforcement purposes.

November 17, 2012

A new low in patents?

Filed under: Bureaucracy, Law, Technology, USA — Tags: , , , — Nicholas @ 10:35

Apple has patented the “page turn”:

If you want to know just how broken the patent system is, just look at patent D670,713, filed by Apple and approved this week by the United States Patent Office.

This design patent, titled, “Display screen or portion thereof with animated graphical user interface,” gives Apple the exclusive rights to the page turn in an e-reader application.

Yes, that’s right. Apple now owns the page turn. You know, as when you turn a page with your hand. An “interface” that has been around for hundreds of years in physical form. I swear I’ve seen similar animation in Disney or Warner Brothers cartoons.

(This is where readers are probably checking the URL of this article to make sure it’s The New York Times and not The Onion.)

November 4, 2012

Rethinking software patents

Filed under: Business, Law, Technology — Tags: , , , , , — Nicholas @ 00:01

Software patents are becoming a clear and present danger to innovation:

The basic problem being that there are so many patents, covering so many things, that the system is in danger of eating itself like Ourobouros.

    When Dan Ravicher of the Public Patent Foundation studied one large program (Linux, which is the kernel of the GNU/Linux operating system) in 2004, he found 283 U.S. patents that appeared to cover computing ideas implemented in the source code of that program. That same year, it was estimated that Linux was .25 percent of the whole GNU/Linux system. Multiplying 300 by 400 we get the order-of-magnitude estimate that the system as a whole was threatened by around 100,000 patents.

    If half of those patents were eliminated as “bad quality” — i.e., mistakes of the patent system — it would not really change things. Whether 100,000 patents or 50,000, it’s the same disaster. This is why it’s a mistake to limit our criticism of software patents to just “patent trolls” or ”bad quality” patents. In this sense Apple, which isn’t a “troll” by the usual definition, is the most dangerous patent aggressor today. I don’t know whether Apple’s patents are “good quality,” but the better the patent’s “quality,” the more dangerous its threat.

It’s near impossible to develop new software when there are so many such patents out there. Further, even if you tried to get clearance (or signed up to licenses and so on) to use them it would be near impossible.And we do need to recall what the purpose of a patent system is. No, it isn’t to provide and income to those who create inventions. That’s only the proximate aim: the ultimate aim is to maximise the amount of invention and innovation.

The economics of patents accepts that there is a tradeoff here. Yes, we’d like people who come up with useful new things to make money. Because that incentivises people to work on coming up with interesting new things to all our benefit. However, we also want people to be able to create derivative innovations and inventions. If our protection of the original inventors is too strong then we limit this. What we want is a system that hits the sweet spot, of encouraging the maximum amount of both, original and derivative. The problem of course being that to encourage one we weaken the incentives to do the other, either way around.

October 8, 2012

Legal weapons of mass destruction

Filed under: Business, Law, Technology — Tags: , , , , — Nicholas @ 11:19

Software patents: two words that probably should not go together at all.

Mr. Phillips and Vlingo are among the thousands of executives and companies caught in a software patent system that federal judges, economists, policy makers and technology executives say is so flawed that it often stymies innovation.

Alongside the impressive technological advances of the last two decades, they argue, a pall has descended: the marketplace for new ideas has been corrupted by software patents used as destructive weapons.

[. . .]

Patents are vitally important to protecting intellectual property. Plenty of creativity occurs within the technology industry, and without patents, executives say they could never justify spending fortunes on new products. And academics say that some aspects of the patent system, like protections for pharmaceuticals, often function smoothly.

However, many people argue that the nation’s patent rules, intended for a mechanical world, are inadequate in today’s digital marketplace. Unlike patents for new drug formulas, patents on software often effectively grant ownership of concepts, rather than tangible creations. Today, the patent office routinely approves patents that describe vague algorithms or business methods, like a software system for calculating online prices, without patent examiners demanding specifics about how those calculations occur or how the software operates.

As a result, some patents are so broad that they allow patent holders to claim sweeping ownership of seemingly unrelated products built by others. Often, companies are sued for violating patents they never knew existed or never dreamed might apply to their creations, at a cost shouldered by consumers in the form of higher prices and fewer choices.

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