Michael J. Radwin's blog

United States Patent 7,007,074

Targeted advertisements using time-dependent key search terms, United States Patent 7,007,074, issued today.

Whoo-hoo!

Recovering domain names from squatters

Next week's Perkins Coie Computer/Internet Law Roundtable is entitled "STALKING THE WILY DOMAIN SQUATTER: Lessons from Years of Recovering Domain Names."

David Steele will discuss how to recover infringing domain names and protect trademarks and trade names from cybersquatters using examples and techniques drawn from his extensive experience with domain name and trademark issues.

GIF Patent Expires Tomorrow

kuro5hin.org: "On Friday, 20th June 2003, the death knell sounds for US patent number 4,558,302. Having benefitted its owner, the Unisys Corporation for 20 years, the contents of the patent are entered into the Public Domain and may be used absolutely freely by anyone."

Note however that the patent only expires in the USA tomorrow. The popular GD Graphics Library will not include GIF creation capabilities until the patent expires world-wide on July 7th, 2004.

Self-Destructing DVDs: Divx redux

Disney to Begin Renting 'Self-Destructing' DVDs (Yahoo! News)

Hey, didn't we already do this about 5 years ago?

This time, the underlying technology is something called Flexplay.

US Copyright Office hearings on DMCA at UCLA

Some entertainment industry heavies will be testifying at UCLA on exemptions from the anti-circumvention provisions of the DMCA:

U.S. Copyright Office, Anticircumvention Rulemaking Hearings Schedule

The hearing is in the Moot Court room, 1310, on the first floor of the law school.

What Every Software Engineer Should Know About Patents

Ariel Rogson from Marger Johnson & McCollom spoke at last night's Los Angeles ACM meeting on software patents.

Here's a brief outline of the main topics he covered:

• What is a patent?
• Patents vs. Copyright
• 4 Requirements for a patent
• Is software patentable?
• Should I bother with a patent?
• "Patent Pending"
• Audience for the text of patent
• Components of patent application
• "Enablement" requirement
• Deadlines for patenting
• Prior Art
• Provisional Patents
• Financial Costs
• How to draft a patent specification
• Include source code in your application?
• Open Source vs. Patents
• Infringement
• Defenses against infringement
• Advice for managers

I already knew a whole bunch of this stuff since I've been through the process before and I've taken an Intellectual Property class at UCLA.

Something new I learned about was the "prior use" defense against infringement. Apparently it was created in 1999 but has yet to be tested in a court of law, in large part because there are some highly technical limitations associated with its use.

The way I understand it, the prior use defense may apply if you reduced to practice the invention at least one year before the filing date, AND you were using it commercially before the filing date. But apparently it's tricky to use.

Rogson said that the more common defenses against infringement were either invalidity or non-infringement.

With invalidity, you argue that the examiner failed to consider some prior art that would have prevented the patent from issuing. The difficulty with this defense ist that the defendent has the burden of proof to show that the patent is invalid since a patent is presumed valid if it has issued.

A non-infringement defense argues that the patent is not infringed upon because the defendant is simply doing something different from what the patent describes.

Court rules P2P networks are like VCRs

Looks like the courts are finally realizing that copyright owners shouldn't have control over everything. They cornerstone of today's decision is that P2P netoworks, like VCRs, have substantial noninfringing uses.

A federal court denied a request to shut down Internet song-swapping services Grokster and Morpheus on Friday, handing a stunning setback to the record labels and movie studios that have sought to curb unauthorized downloading of their works. U.S. District Court Judge Stephen Wilson said the two services should not be shut down because they cannot control what is traded over their systems. Like a videocassette recorder, the software in question could be used for legitimate purposes as well as illicit ones, he said. "It is undisputed that there are substantial noninfringing uses for (the) Defendants' software," wrote Wilson, who serves in Los Angeles. [Yahoo! News: Court Rejects Suit Against Web Song-Swappers]

Take that, RIAA! Next, we'll repeal the DMCA!

"Quest v. OneQuest" and "What Every Software Engineer Should Know About Patents"

A couple of interesting talks in the technology/IP space are coming up:

April 30 Computer/Internet Roundtable: Breton Bocchieri on Qwest Communications International Inc. v. OneQwest.

May 7 Los Angeles ACM meeting: Ariel Rogson on "What Every Software Engineer Should Know About Patents"

Targeted advertisements using time-dependent key search terms

Whoo-hoo! I'm an inventor (almost).

United States Patent Application 20030050863, "Targeted advertisements using time-dependent key search terms", was just published today.

As my cousin Rich points out, the patent hasn't actually been granted yet. The publication of the patent is important nonetheless, because it establishes prior art.

Why discussing patents over email is bad

This comes up now and again at work. An engineer reads a story from CNET News.com or Slashdot about how some technology company has a patent on something really obvious (like XOR) and is trying to enforce it. The engineer sends email to the internal development email list with a link to the story, and sometimes a snide comment about how totally silly and unenforceable the patent is.

The intent is harmless, but it's a real problem. In general, patents should not be discussed over email. I'm not a lawyer, but I do understand a little bit about this field. Let me try to explain why it's a bad idea.

The issue has to do with willful infringement. If a company is found to be infringing on a patent, even accidentally, they can be ordered to pay damages to the patent owner, sometimes millions of dollars. If it turns out that the infringing company knew about the existence of the patent, it's called "willful infringement." In those cases, the infringing entity can be required to pay treble damages to the patent owner.

If the patent was discussed over email then it's much harder to make the argument that the infringement was accidental. treble damages. Ouch.

When I get an email about a patent, it's too late to repair the damage. I might hit delete in my email program, but we all know that email, especially when sent to a list, never goes away completely. Of course it's archived in about a thousand different places (on other people's computers, outgoing mail servers, incoming mail servers, web archives, tape backups, etc.)

And the first thing the lawyers do when filing an infringement case against your company is subpoena all of the email from the past year and start grepping through it for references to the patent. Remember, treble damages. Ouch. So if the lawyers can't find anything electronic indicating that you knew about the patent but your company still happens to infringe on it, you'll only get slapped with single damages. Still a lot of ouch, but only 1/3rd as much ouch.

Some might argue, "But it's OK to talk about this particular patent, because we all know that it is totally unenforceable." Wrong. Unless you're a patent attorney, you don't know enough to make that call. You have to assume that all patents, no matter how ridiculous, might be enforced.

Some companies, such as my former employer, are really concerned about this. Not only do they discourage discussing patents at all over email, they run HTTP proxy servers and completely cut off access to the U.S. Patent and Trademark Office website from within the corporate intranet.

I'm not suggesting that my employer go that far, because it doesn't seem to solve the underlying problem (people often find out about patents from news sites, not from searching the patent database itself). But it's really not asking too much to tell employees to restrain themselves from discussing patents in an electronic, highly searchable medium.

Talk about it at lunchtime. As Rick says, have the conversation at the real water cooler, not the virtual one.

Security for Whom? - TCPA and Hollywood vs. Open Computing Platforms

The Electronic Frontier Foundation's Seth Schoen and Cory Doctorow are speaking at the monthly Los Angeles ACM meeting this week.

Free as in Freedom: Richard Stallman's Crusade for Free Software

I finished reading Free as in Freedom: Richard Stallman's Crusade for Free Software a couple of weeks ago (it's on my reading list for 2003). Sam Williams spins a compelling story about a man who is so passionate about a single idea that he ends up alienating most people he meets.

On the whole, the book is well-written and insightful. I found chapters 10 and 11 ("GNU/Linux" and "Open Source") the most interesting. These chapters are less autobiographical and more historical. They do a good job of explaining why the Open Source movement is important (the Free Software Foundation is a bunch of religious zealots that don't care to understand or work with the business world).

When I heard RMS interrupt and insult a speaker at the 2002 O'Reilly Open Source Convention because the speaker used the term "Free Software" to refer to "Open Source" software, I didn't really understand why he would be so rude. The other chapters in the book, as a whole, tell us why he's such a jerk. They don't condone his behavior, but they do offer an explanation of how he came to be the person he is today.

The whole St. Ignucius shtick makes me embarassed to be an Emacs user. I can't code without it, but I hate the pseudo-religion that RMS attaches to its use.

Lastly, a comment about e-books: Although I could've read the book for free online, I ended up getting a print edition. It's so much easier to read in print that I think it's worth spending the money on the actual book.

(I downloaded Cory Doctorow's Down and Out in the Magic Kingdom to my Palm Zire last week because I'm tickled by the Creative Commons licenses, but I'm having a hard time with the poor contast delivered by an LCD. There ain't nothing as easy to read as black ink on white paper.)

Karl Auerbach at Perkins Coie on Wednesday

Karl Auerbach, longtime ICANN critic, is speaking at the Perkins Coie Computer/Internet Law Roundtable on Wednesday, January 22.

Topic: "Technology Frying Pans, Policy Fires: Internet and the Law - Past, Present and Future."

Lunch: Chinese food.

Sonny Bono Copyright Term Extension Act upheld

The whole IP world is buzzing today about the Supreme Court decision regarding Eldred v. Ashcroft, upholding the Sonny Bono Copyright Term Extension Act as constitutional.

Larry Lessig is understandably bummed out. So am I.

It's a Wonderful Life

Every year around X-mas time I'm sure to mention the story about how It's a Wonderful Life became a holiday classic due to a snafu with copyright law. Earlier this week, NPR reported on this very story:

NPR's Rick Karr reports on how a 1946 box office flop became so ubiquitous on television this time of year. It's a Wonderful Life is a sentimental favorite... in part because of Jimmy Stewart, but also because no one ever bothered to file the papers to extend the copyright on the movie. [NPR Morning Edition]

NPR also aired a Motley Fool Radio Show about the movie.

DMCA and Instant Messaging Patent

A couple of interesting developments in the IP space today:

1. Russian Company Acquitted of Digital Piracy. In the first test of digital piracy law, a jury acquitted a Russian company accused of selling software that allowed users to circumvent security features in an electronic book. By Matt Richtel. [New York Times: Technology]
2. Patent creates IM wrinkle. America Online quietly secures a patent that could potentially shake up the competitive landscape for instant messaging software. [CNET News.com]

Creative Commons: a real alternative to GPL

Creative Types: A Lot in Common. The Internet is teeming with creative people who aren't famous or rich. A new set of licenses from Creative Commons will allow copyright holders to share their work according to conditions they specify -- and boost their profiles. By Kendra Mayfield. [Wired News]

RIAA doesn't get it, but O'Reilly does

Last night, I read Tim O'Reilly's superb article on "piracy" and the evolution of online distribution. Brilliant.

Especially apropos was O'Reilly's comparison of Internet access to television: most of use don't use "free" TV from the airwaves, but instead get cable or satellite. And many people with subscriptions to TV services pay extra for premium content (such as extra sports channels or HBO). Similarly, most of us don't use "free" Internet from Juno, but instead pay a monthly fee to an ISP like SBC or AOL.

But the analogy breaks down here. We should be able to get a "premium ISP" package from AOL that gives us online access to all of Time Warner's music. But it's not available. Not good enough. If we can't pay for online access to quality music, we're going to resort to the next best thing: free file-sharing networks.

Online music still not ready for prime-time

In CNET News.com today:

Liquid Audio to evaporate. The company's board of directors votes unanimously to dissolve the company and distribute its cash reserves to shareholders.

Pretty pathetic. Liquid was one of the very first innovators to attempt to make a legal online music system in the Napster age. The fact that they've gone out of business shows just how stupid the recording industry is. Without a cheap, widely available alternative to getting illegal music from Kazaa or Gnutella, people are going to continue to violate copyright and copy music.

I'm willing to pay between 10 and 25 cents a song. Charge my PayPal account to avoid the overhead of credit card transactions and subscription models. RIAA, are you listening?

Dmitry's DMCA case begins

An important test for the DMCA begins this week. Acording to Wired News,

Opening arguments begin Tuesday in the copyright infringement case against the Russian coding firm, a trial expected to test the limits of federal copyright law. Programmer Dmitri Sklyarov will be on hand to testify for both the prosecution and the defense.

I'm intersted in this case mostly because it's a battle between the DMCA and the principle of fair use, but also because it involves my former employer.

Information wants to be free?

I spend a lot of time thinking about IP. No, I'm not talking about Internet Protocol; I'm talking about the other IP. Intellectual Property. Some day before I get too old, I'm going to put my career as a software guy on hold and go to law school to study this stuff more seriously.

I was talking about blogs with my friend Gabriel last night on the phone, and the subject of images came up. I mentioned to him that I was trying to put graphics next to each blog entry that I write because it's entertaining and it makes the page easier to read (too much text and people won't bother to read my blog). I often go to http://images.google.com/ and search for something then grab whatever graphic happens to look the best. So I mentioned to Gabriel that I'm worried about the copyright implications of re-publishing someone else's clipart/photo/graphic without their permission.

"Whatever, dude. Information wants to be free," he said. "Plus, it's fair use."

Actually, the reason I'm worried about it is that I'm pretty sure it's not covered under the fair use doctrine. Writing a blog is pretty clearly a form of publication, and fair use certainly doesn't cover republication. It might allow you to rent a movie from Blockbuster and show it to a dozen of your friends at home, but it doesn't allow you to display that movie in a public place (like a restaurant or bar) without paying royalties to the movie studio. Since blogs are a public medium (it's not just my family friends that read this, but also a bunch of people I don't even know), to be 100% legal I probably should avoid using random images I grab off the web (or I should specifically seek out unencumbered graphics, such as the dreidel I found when searching for "free chanukah clipart").

Don't get me wrong. I do think that copyright law can be taken too far. The Digital Millennium Copyright Act perhaps gets the most attention of the copyright-laws-gone-awry. And I haven't even begun to understand the implications of the Uniform Computer Information Transactions Act.

The Sonny Bono Copyright Term Extension Act is also really misguided; Mickey Mouse belongs in the public domain as much as American Gothic and Uncle Sam do.

But I have a strong respect for copyright law because artists deserve a right to make a living. If you're selling a product (like bars of soap or ink jet printers) then you've got a steady revenue stream because your product eventually wears out and people need to buy more. When you're providing a service (like helping people with their income taxes) you get paid for that, too.

But Intellectual Property is different. It's not a tangible product that you can buy, but it's something that we still find valuable (otherwise we wouldn't pay 9 bucks to see a first-run movie). In the digital age, we need to be especially diligent with IP. Digital copies of creative works are essentially free to copy (thanks to 19 cent blank CD-Rs and fast Internet connections). When you write a book, compose some music, direct a movie, or even write code, your work can be copied an infinite number of times without you getting paid for it. We all have families to support. Copyright law was originally intended to ensure that creative individuals would get compensated for their work.

Gabriel pointed out that the Open Source Software movement is trying to turn copyright upside-down. But if you look at the key people in the OSS movement, they benefit tremendously from copyright law. Many of them write code for free, but they make their living by authoring books and magazine articles, and getting paid to speak at conferences. Some of them run consulting and support companies. The very lucky ones are employed by a generous and open-minded corporation that pays their engineering salary but donates their time to the Open Source world.

I agree that information wants to be free. We all want a free lunch.

Wal-Mart's sub-$200 PCs

I've read with great interest about the dirt-cheap PCs that Wal-Mart has been selling.

It turns out that these not-so-wimpy internet appliances (128Mb of RAM, 10Gb of disk, and built-in 10/100 Ethernet) are running an new operating system called LindowsOS which is really just Linux + KDE 3.0 and some really easy to use management tools.

I've never been a fan of Linux on the desktop. Going against the Microsoft grain is such an uphill battle, and if you're going to go that route it seems like Mac OS X is the right approach anyways. But I'm now rooting for Lindows because it appears that there's a little bit of a trademark battle going on over the use of the Lindows name.

If the true test of trademark infringement is confusion in the marketplace, I think it's going to be difficult to make the argument that people would think that Lindows was a Microsoft product.

Free Hebrew Dictionary?

Does anyone know if there are any Hebrew-English dictionaries available that aren't encumbered by copyright restrictions? Ideally I'd like to find something in electronic form, but I'll take a print dictionary if that's all that's available.

Patent

My first couple of years at Yahoo! I worked on statistical models used for targeted advertising and content recommendation. Last year, we actually got around to submitting one of those systems to the U.S. Patent Office. It hasn't been granted yet, but hey, "Patent Pending" is cool enough. I'm hopeful that they will grant it, though. After seeing United States Patent 6,368,227 I think I might actually have a shot.