This time it’s apparently a recent draft of the Trans-Pacific Partnership agreement. The Register‘s Richard Chirgwin assures us that it’s not as bad as we thought — it’s much worse:
The TPP is a document supposed to harmonise intellectual property protections in participating nations — America, Canada, Australia, New Zealand, Japan, Malaysia, Vietnam, Brunei, Singapore, Chile and Peru. Instead, it looks like a an Australia-US-Japan club force-marching the treaty into America’s favoured position on nearly everything, from criminalisation of copyright infringements through to a blank cheque for pharmaceutical companies.
The document, here, is huge, but some of the key items include:
- Criminalisation of copyright infringement by all signatories;
- Stronger DRM and “technological protection measure” regimes;
- ISPs to be made liable for copyright infringement on their networks;
- A “take it down first, argue later” DMCA-like process for notifying copyright infringements;
- Patentable plants and animals;
- The evergreening of patents — this has become particularly notorious in the pharmaceutical business, where the repackaging of an out-of-patent medication is used to keep common compounds out of the public domain.
America and Japan are opposing consumer protections proposed by the other nations (Australia excepted). These provisions, in Article QQ.A.9, would be designed to prevent the abuse of copyright processes, use of intellectual property rights as a restraint of trade or as the basis of anticompetitive practises.
America manages to put itself beyond the pale as the sole sponsor of Article QQ.E.1, pretty much a “Monsanto clause” by pushing for patent coverage of plants and animals, including “biological processes for the production of plants and animals.” New Zealand, Canada, Singapore, Chile and Mexico want to specifically exclude these, along with “diagnostic, therapeutic and surgical methods for the treatment of humans or animals”.
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.
Micheal Geist rounds up some good news for Canada Day:
As Canadians grapple with news of widespread secret surveillance, trade agreements that could upend intellectual property policy, and the frustrations of a failed wireless policy, there are plenty of digital policy concerns. Yet on Canada Day, my weekly technology law column argues that it is worth celebrating the many positive developments that dot the Canadian digital policy landscape. Eight of the best include:
1. The Supreme Court of Canada’s strong affirmation of user rights and technological neutrality in copyright. [. . .]
2. The Canadian Radio-television and Telecommunications Commission’s policy on network neutrality. [. . .]
3. The defeat of the government’s lawful access legislation. [. . .]
4. Canada’s promotion of user generated content. [. . .]
5. The CRTC’s pro-consumer agenda. [. . .]
6. The Privacy Commissioner of Canada’s aggressive investigations of top Internet companies. [. . .]
7. Canada’s notice-and-notice system for Internet providers. [. . .]
8. Canada’s balanced patent law standards. [. . .]
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.
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…
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.
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.
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.
Verizon wants your TV to carefully observe you so it can deliver ads tailored for whatever activity you might be doing:
The U.S. Patent Office has delivered a “non-final” rejection of a Verizon patent application for a controversial technology that would have served targeted ads to TV viewers based on what they might be doing or saying in front of their sets.
[. . .]
The patent in question has been the subject of intense media scrutiny since FierceCable uncovered it last week. Verizon’s somewhat laboriously titled the patent application “Methods and Systems for Presenting an Advertisement Associated with an Ambient Action of a Use.”
The application says the technology would be capable of triggering different advertisements depending on whether a viewer or viewers might be eating, playing, cuddling, laughing, singing, fighting or gesturing in front of their sets. Specifically, the patent covers technology that can serve ads “…targeted to the user based on what the user is doing, who the user is, the user’s surroundings, and/or any other suitable information associated with the user.”
Privacy? You don’t need that, because we need to sell you shit.
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.)
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.
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.