November 2006

Brazil, India and Italy recently joined the Open Document Format parade, according to today’s press release from the ODF Alliance. Brazil will recommend ODF as the government’s preferred
format, India decided to use ODF at its tax office, and
Italy will recognize ODF as national standard. Is this good or bad news for technology liberators (or neither – is it neutral)?

Hard to tell without reading the full details (Brazil’s document is in Portuguese). But if these governments are in effect choosing technology winners and losers, then this is a bad thing.

Now, I understand that the stated mission of the ODF Alliance is, essentially, to ensure that documents are accessible across platforms and applications, even as technologies change. However, I get squirmy when governments approve and select technologies in a way that that appears to be more than government asserting its power as a customer, and is instead catering to an ideology backed by IBM, Sun, and other large companies with interests in non-proprietary software).

How can we ensure that documents are readable and interoperable without governments engaging in file format beauty contests? There has to be a better way…and there is! I’d rather have governments express their goals – long-term access, interoperability, disability access, etc – and let the market determine the best format. After all, ODF will one day be usurped by a better format, but vested interests in the status quo could delay its adoption by governments.

Teleflex Transcript

by on November 28, 2006

A transcript of the KSR v. Teleflex oral argument is available here. It sure sounds like the justices are not happy with the status quo:

MR. GOLDSTEIN: Justice Scalia, I this it would be surprising for this experienced Court and all of the patent bar–remember, every single major patent bar association in the country has filed on our side -

CHIEF JUSTICE ROBERTS: Well, which way does that cut? That just indicates that this is profitable for the patent bar.

(Laughter.)

MR. GOLDSTEIN: Mr. Chief Justice, it turns out that actually is not accurate.

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Doug Lay points out this summary of today’s oral arguments in the KSR v. Teleflex case. ZDNet’s Anne Broache has another good summary. It sounds like the argument went well for the forces of sanity:

During hour-long oral arguments in a case that’s closely watched by the business community, Chief Justice John Roberts suggested that an existing federal court test for determining patent obviousness relied too little on common sense. Justice Antonin Scalia went so far as to call the test “gobbledygook” and “meaningless.”

“It’s worse than meaningless because it complicates the question rather than focusing on the statute,” Roberts went on to say of the test, which requires evidence of a past “teaching, suggestion or motivation” that would lead to a particular invention in order for it to be declared “obvious.”

My co-blogger Solveig Singleton (along with Jim Delong) filed an excellent amicus brief in the case for PFF.

Why didn’t the Baby Bells compete with one another when Congress ended their exclusive franchises in 1996? Each possessed the necessary expertise and vast resources. The FCC was most eager to help. Did the Baby Bells conspire to carve up their territories in order to maintain their respective monopolies? In Bell Atlantic Corp. v. Twombly, counsel for Twombly allege that they did, though they can’t cite any direct evidence. The Supreme Court heard oral arguments yesterday.

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Gunning for a Take Down

by on November 28, 2006

Ed Felten has a clever post on the strange intersection of Second Life and copyright law:

Alice designs a spiffy new hot air balloon that everyone covets. Bob uses CopyBot to make his own replica of the balloon, which he starts riding around the skies. Alice discovers this and sends a takedown notice to Second Life. Bob’s balloon is then “taken down”–it disappears from the world, as in the classic cartoon Duck Amuck, where the animator’s eraser plays havoc with Daffy Duck’s world.

But surely Bob isn’t the only one riding in a copied balloon. Others may have CopyBotted their own balloons or bought a balloon copy from Bob. It’s tedious for Alice to write and send a takedown notice every time she sees a copied balloon.

What Alice needs is a takedown gun. When she sees an infringing balloon, she just points the takedown gun at it and pulls the trigger. The takedown gun does the rest, gathering the necessary information and sending a takedown notice, dooming the targeted balloon to eventual destruction. It’s perfectly feasible to create a takedown gun, thanks to Second Life’s rich tools for object creation. It’s a gun that shoots law rather than bullets.

Felten goes on to explore the ramifications of the development of such a gun. He concludes that “when copying is easy, laws against copying are very hard to enforce.”

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OK Go: Story and Meta-Story

by on November 28, 2006

USA Today columnist Kevin Maney has a story up on Tim Lee musical fave OK Go. He also has more tidbits about the story on his blog.

Techdirt notes that the Supreme Court has turned down Microsoft’s appeal of their loss to Guatemalan inventor Carlos Armando Amado. And they were kind enough to link to my write-up of the Amado patent. As I said back in June:

So it seems that Mr. Amado’s “invention” consisted in taking a bunch of features from several other database products and combining them into a single user-friendly package. This is somewhat akin to a car company patenting the idea of a car that has anti-lock brakes, an onboard navigation system, and remote keyless entry. The patent could have glossy color pictures of the vehicle and describe in great detail how seamlessly the features work together, but it still wouldn’t be an invention worthy of patent protection. Combining several previously-known features into one product isn’t innovative, even if the new product allows you to do things the old one didn’t.

I suspect that this is a rare case where the only realistic chance of reform is for Congress to get involved. The Supreme Court has too much on its plate (and is likely too wedded to stare decisis) to untangle the mess the Federal Circuit has made of the patent system.

Simply Red

by on November 28, 2006 · 13 comments

Just for fun, a little piece on copyright as socialism.

So how many meta-levels can we think about this at?

-There’s the whole question of the origin of the word “socialist,” I vaguely recollect that, like “liberal,” it used to be used by free marketers.
-There’s the discordance of recognizing that in some country’s mainstream media the term “socialist” is a positive.
-There’s the question of whether anyone who accepts copyright must therefore be a socialist.
-And then the question of whether markets in general, since they seem pretty good at giving people access to things, are “socialist.”

I’ll stop here.

Square Wheel

by on November 27, 2006 · 4 comments

Another scathing Zune review, this one in the Chicao Sun-Times:

“Avoid,” is my general message. The Zune is a square wheel, a product that’s so absurd and so obviously immune to success that it evokes something akin to a sense of pity.

The setup process stands among the very worst experiences I’ve ever had with digital music players. The installer app failed, and an hour into the ordeal, I found myself asking my office goldfish, “Has it really come to this? Am I really about to manually create and install a .dll file?”

But there it was, right on the Zune’s tech support page. Is this really what parents want to be doing at 4 a.m. on Christmas morning?

That might not be Zune’s fault. After about a year of operation, it’s almost as if a Windows machine develops some sort of antibodies that prevent it from recognizing new hardware. But what’s Microsoft’s excuse for everything else?

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I can’t believe Tim Lee hasn’t posted about this already, but the Copyright Office has released its list of new exemptions to the DMCA. All around they’re pretty good considering how stingy the Copyright Office has been with exemptions in the past. Missing, of course, is an exemption that would allow folks to format-shift their DRMd DVDs or CDs onto other devices like PCs or iPods. Derek Slater has a round-up of reaction from around the web.

Notable among the exemptions is one for locked cell phones. Wireless carriers will subsidize your phone purchase, but the phone you get is locked so you can only use it on one network. This exemption will now allow consumers to take their locked phones to a competing network who I’m sure will be happy to unlock it for them. On the surface this is great for consumers, but I also wonder what impact it will have on carriers’ willingness to subsidize phones. On the margin, at least, their incentive has shrunk. If that’s the case (and allow me to be a geek for a moment) then it might help Apple’s assuredly forthcoming iPhone better compete since many believe that it will be sold unlocked and without attachment to any carrier.