The “Did You Know?” video presents amazing data about the disruptive power of digital life. Highly recommended.
Author Archives: Larry Downes
The intersection of privacy and piracy
There they go again. The French parliament has passed a law that would fine or even cut off Internet access for a year for users caught illegally downloading copyrighted material. The “three strikes” legislation, considered in other countries, now has to go through conference committee and faces constitutional challenges. President Sarkozy is in favor of the bill. Where an earlier version of the bill required ISPs to cut off access, the new version leaves that to a judge. Here’s the story from Ars Technica.
Tracking the use (and therefore abuse) of users, of course, raises significant privacy concerns. Free speech, due process, and other civil rights are also constrained under the revised draft. And home WiFi networks would be responsible for whatever activity takes place through their networks. The law would require such networks to be password-protected.
A win and a loss for Microsoft in patent dispute
Last week, the U.S. Court of Appeals for the Federal Circuit, which hears all appeals in patent cases, ruled on an on-going legal battle between Microsoft and Alcatel-Lucent, now seven years old. Brent Kendall of the Wall Street Journal reports on the decision here. The full text (not recommended) can be found here.
Whether the decision represents a win or a loss for Microsoft depends on whose explanation you are reading. On the one hand, the the F.C. refused to declare the patents invalid. On the other hand, they voided a calculation of damages that made Microsoft liable for $358 million, and ordered a new trial to determine the correct amount. New trials are always opportunities for new negotiations for settlement.
The patent at issue was for a 1986 invention by AT&T engineers for a method of suggesting values to be automatically inserted into text fields on a computer screen. AT&T argued that pop-up windows in Outlook and other applications that allow the user to pick a date, for example, and then fill the data into an underlying date field violated that patent, a holding the appellate court has affirmed.
But Alcatel-Lucent argued that the feature was so valuable that damages should be based on the value of the entire computer system (including hardware) paid by a consumer using the software Microsoft thought a more appropriate number would be $6.5 million. We’ll see what comes next.
This case is a good example of many problems with the current patent system, a few of which I summarize below:
- Obviousness – The two patents, read in their entirety, don’t suggest the kind of innovation that ought to be rewarded with 17 years of monopoly protection. The extension of the claim from touch screens to keyboard entry also seems a stretch.
- Trier-of-fact – That the determination of validity and infringement is made first by ordinary jurors and then affirmed by judges with no particular training in technology is likewise unnerving.
- Procedure – Mainstream media sources reported the initial verdict and damages award as a done deal, a huge blow to Microsoft, etc. In long-running litigation between well-funded litigants, you really have to wait until it’s really over (settlements are inevitable if drawn out) to say what’s happened.
- Software – The development of software, a relatively new form of invention, is just too fast to work with the slow pace of the patent system. The sources for “prior art” and obviousness (here the appeal rested largely on an article from trade magazine Datamation) are unfamiliar to patent examiners and judges, and easily misunderstood. Software already gets protection under trade secret and copyright law; it doesn’t need patent as well.
- Liability – There was, as is usual in such cases, no claim that Microsoft intentionally infringed on the patent or was even aware of its existence. Liability in patent is strict – meaning it has nothing to do with unethical behavior by the defendant.
Sign the Call to Defense of the Online Commonwealth
I’m pleased to be one of the initial signatories of the Center for Democracy and Technology’s Call to Defense and Celebration of the Online Commonwealth. The document, drafted by Cyberspace law pioneer David R. Johnson, nicely balances the remarkable success of online self-regulation with the need for innovative solutions to new problems posed by new kinds of interactions made possible by continued advances in technology. Please consider signing the document.
Praise for David Post's "In Search of Jefferson's Moose"
Just as I was finishing the manuscript for “The Laws of Disruption,” my old friend David Post published “In Search of Jefferson’s Moose ” a wonderful monograph on, as he says, the state of cyberspace.
Unlike many law professors who write books about Internet technology, Post is no dilettante. He has a deep understanding of the engineering underlying the basic network protocols, and weaves that knowledge into an extended historical metaphor of the founding principles of the American Republic, particularly of the philosophy of government embraced and expanded by Thomas Jefferson.
Post ‘s section on Internet governance wisely stays out of the weeds and sticks with the most important high-level decisionmaking–how new protocols are propagated, how domain addresses are maintained, whether digital life is “governable” by traditional legal institutions. I share his view that cyberspace is not simply a new technology that can be regulated as well or as poorly as previous technologies. Rather, it is a new frontier and, like earlier frontiers, is one that is and will develop its own approach to governance.
It’s a fast read, and well worth the time.
Update on Google Books Settlement – Strange Bedfellows
The deadline for filing objections to Google’s settlement with the Author’s Guild and the Association of American Publishers has now past. Miguel Helft summarizes some of the last-minute objections in an article in yesterday’s New York Times.
I explained some of these arguments in an earlier post. What is interesting to note about the last-minute filings (including one from longtime Silicon Valley antitrust lawyer Gary Reback) is that they suggest not so much a coalition of opponents as a wide range of people with an axe to bear against the settlement, most with very different agendas for doing so.
The concern that the settlement gives Google a de facto monopoly on digital copying for out-of-print books seems strained for two reasons. Right now, there are of course NO publishers making those books available in any medium. Second, there’s nothing in the settlement that precludes any other entity from making a similar arrangement. If it is a monopoly, in other words, it’s only because no one is trying to compete.
