Apple’s Legal Victory Matters For Everyone…

August 25, 2012 by 1 Comment
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Apple’s apparent victory in their patent Infringement lawsuit against Samsung is really a victory for the entire mobile industry.  

Outside of Microsoft’s efforts around Windows 8, the rest of the marketplace as been settling into developing ‘iPhone like’ devices with marginally differentiating features or form factors.  There hasn’t been any significant innovation taking place here recently, and Apple hasn’t really come under any pressure to do more than marginal improvements these past few years to iOS, their mobile operating platform.

If this ruling is upheld through whatever remaining legal appeals Samsung has available, it will probably force a fundamental rethink of how platform developers decide to compete in the mobile space – especially Google with their Android Operating system. 

I’m hoping – maybe foolishly – that this might be a real inflection point, where radically different, truly unique, and even somewhat crazy ideas get considered, selected, and ultimately refined into new types of products, platforms, and environments.  The mobile market desperately needs real diversity in the approaches that vendors are taking today. That is one of the best ways to generate the kind of competition that drives everyone to innovate and deliver excellence.

Competition like that can end up fueling the long-term health of the industry.  This may just be the catalyst that makes that happen.

When all is said and done, Apple may be none too happy to find that there are far more innovative thinkers with incredible ideas in the market than they ever imagined.  But having that happen would be great for everyone.  

Even Apple and Samsung.

For more details, catch the NY Times article here.

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What Is The RIAA's Real End Game?…

January 14, 2008 by Leave a Comment
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The RIAA is on the attack again, but this time, with a slightly different spin…
blog-ripcd.jpg
You might have heard about the RIAA’s case against Jeffrey Howell. He was recently sued by the RIAA for downloading and sharing music files on his computer, an act that, even if widely practiced, is legally wrong. But this case seems to have caused an uproar because of the following snippet that was found in the brief against Mr. Howell:

Defendant admitted that he converted these sound recordings from their original format to the .mp3 format for his and his wife’s use. … Once Defendant converted Plaintiffs’ recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.

The uproar seemed to peak when the Washington Post published an article at the end of December claiming the Recording Industry was now going after not just file sharing but ‘unauthorized’ personal use of legally purchased media as well.

Without a doubt, that would be a scary development…

The statement in the brief is certainly ambiguous. It does express a new concept of ‘authorized copies’, and loosely claims that both the conversion of files to .mp3′s and their placement into a ‘shared folder’ contribute to making them ‘unauthorized copies’. While this wording may not appear to be exceptionally threatening now, if any of it makes its way into a future ruling in this matter, it could help create a base of precedent that the RIAA could leverage in the future to go after CD rippers.

But do they really want to?…

Yes and No. The recording industry has made no secret that they believe any use of media beyond direct playback is illegal. During testimony at a prior file sharing case, Jennifer Pariser, the head of litigation for Sony BMG, asserted:

When an individual makes a copy of a song for himself, I suppose we can say he stole a song.

This isn’t so much a legal strategy as a business strategy. What the industry wants to do is change the rules and convert all different types of heretofore legal activities into new streams of revenue. If they need to sue some people along the way to make that happen, so be it.

Are they really allowed to do that?…

All that said, many bloggers have pointed that this type of copying is a protected action under the Audio Home Recording Act of 1992.

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

While this may seem to cover ripping, a closer reading leads me to conclude that this probably isn’t the case. Specifically, there are two definitions within the statute that may be problematic.

According to the statute, the definition of “digital audio recording device” is:

“…any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use.”

(Emphasis mine.)

Similarly, the definition of “digital audio recording medium” is :

“…any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device.”

(Emphasis mine.)

Unfortunately for those looking for safe harbor in this act, neither of those statutory definitions would include the typical, general purpose computer or any disks or removable media. To make it apply, the courts would need to extend the definition of “device” to include software such as iTunes and other non-physical music players, and to extend the definition of ‘media’ to refer to folders and flash cards used to hold music.

As counterintuitive as it may sound, this is likely what the RIAA wants to see happen…

The reason for that is simple. Under the existing statute, if iTunes were to qualify as a recording device, it would be required support the Serial Copy Management System and be subject to mandatory royalty payments.

The serial copy management system allows a song to be copied to one device, but could then require that the hardware prohibit any copying beyond that if certain bits are set. The device the songs were copied to would become the ‘device’ subjected to the required royalty payment. This scheme is mandatory for all recording devices covered by this statute.

The RIAA is very shrewed…

If they were to litigate this issue, and the courts determine that ripping CD’s to computers isn’t a protected activity, they could then use that ruling as leverage with Apple et. al. to negotiate a revenue stream for the right to rip CD’s. On the other hand, if the court determines that ripping CD’s is a protected activity, they can use that as the basis for a judgment that defines iTunes and iPod’s as recording devices subjected to copy controls and royalties.

Either way, they would end up winning…

I have no doubt that this is where this is all heading. Ultimately, the RIAA can’t sue every individual that wants to rip their CD’s. That isn’t a viable approach, and certainly doesn’t work over even the near term. The recording industry has been itching to get a piece of the iPod/portable device revenues, and they see this as a way to force that to happen. I think the only thing staying their hand is concern over consumer blowback negatively affecting their businesses.

And they are close to the point where they don’t even care about that…

Though they want to portray themselves as the guardians of virtue and defenders of the poor artists, I think it is really important to remember that the RIAA is simply a well funded industry advocacy group. Their only interest is supporting the record companies. They are, in a word, lobbyists. And like any other other well funded lobbyists, they are looking to influence the legal system (at your expense) in whatever way suits their client. Logic, morality, justice, civic good – none of those matter to them at all. They want to find a way to require you to not just buy a CD, but to also buy the digital download, or buy the ringtone, etc. They want that to happen not because it’s right or fair, but because their client will get to charge you three times instead of once for the same basic thing.

Litigation on this point is coming. It’s just a matter of time.

The file sharing lawsuits were just a warm up – the real fight is just getting started…

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Internet On Trial: Follow-up…

October 4, 2007 by 2 Comments
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The verdict is in…

After just 4 hours of deliberation, the jury has come back and found Jammie Thomas guilty of “willful infringement” and assessed a fine of $9,250 per song. (That comes out to $222,000 total for the 24 songs specified in the suit).

This verdict is really disappointing to me…

It isn’t the outcome itself that bothers me, but the time it took the jury to reach its verdict. It’s clear that the jury didn’t think very deeply about this case, or the more complex issues involved. I wouldn’t be surprised to find they spent the bulk of that 4 hours coming to an agreement on the penalty that would be assessed instead of discussing evidence and causality.

When it comes to cases like this that involve profound yet subtle details that can easily escape the understanding of an average person, the jury system is simply incapable of rendering meaningful verdicts. When the details of a case move beyond the casual understanding of a topic a juror brings with them into the jury room, verdicts end up being based more on emotion than fact.

Whether a rendering of “innocent” or “guilty”, if a verdict isn’t based on facts, bad precedents are created.

And bad precedents pollute the integrity of our system of justice…

It may make sense to impanel domain experts instead of traditional juries for trials like this. It would be far harder to manipulate/intimidate them with hired “expert witnesses” (that often talk a better story than they actually understand), or stirring emotional pleas that have little to do with facts. In cases that involve disciplines unfamiliar to the average person, we simply can’t be confident that a meaningful deliberation will take place. And its hard for someone to receive justice if the complexities presented in a case aren’t fully considered and the subtleties that define events are just glossed over.

I believe that’s what happened in this case…

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Forget File Sharing: The Internet Is On Trial…

October 4, 2007 by 1 Comment
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The RIAA’s infringement case against Jammie Thomas is now the hands of the jury…

jammiethomas.jpgMs. Thomas is accused of downloading and sharing 24 specific music files over Kazaa, a popular P2P file sharing service. This is the first of over 20,000 copyright lawsuits brought by the RIAA over the last four years to make it to trial. Most others have settled out of court or been dismissed for various reasons.

Testimony in this case – Capitol Records v. Jammie Thomas – wrapped up yesterday, and the judge turned the case over to the jury this morning for deliberation.

What makes this case so important is not the obvious “David vs. Goliath”, “Mother of two vs. Evil RIAA” angle that is being played out in a lot of what I read. The RIAA may be a slimy organization working for a clueless and equally slimy industry, but that isn’t the point. The important precedents being established by this case are the level of proof required to assess liability/guilt when the evidence is all digital, and the scope of applicability being granted to existing copyright laws.

Everything else is just a side show…

It is clear from the testimony that there is no direct evidence that Ms. Thomas herself was the person that participated in any of the alleged infringing activities. It has only been established that the activity happened through a specific hardware address tied to her internet account, and using a name that is consistent with other online names she has used in the past. Ms. Thomas also has online transactions showing she purchased CD’s during a contemporaneous period to the alleged infringement, demonstrating a willingness to pay for music she wants.

Is that sufficient to determine guilt in this type of case?…

Holding a specific individual accountable for activity on a system without having any solid connection tying them directly to that activity is troubling to me. We live in an online world where everyone is connected. And it isn’t always safe. Anyone that has used Microsoft Windows (the OS on the system in question in this case) knows how susceptible it can be to being infected by ad-ware, spy-ware, and other types of control software that operate without direct knowledge or approval of the computer’s owner. Many people may actually be in less control of their computers than they realize.

And it goes beyond ‘malware’…

At a physical level, home computers are not locked away and are often accessed by multiple people – some who are not even part of the family. And their collective actions on the computer are indistinguishable from one another. Open wireless hubs can also allow ‘outside activity’ to take place, further blurring the connection between individuals and actions.

What may theoretically seem like a simple link between computer and owner isn’t so simple in practice…

If a guilty verdict in this case ends up setting the bar too low, we could find ourselves limiting many of the online freedoms we currently take for granted, and poison the adoption of more innovative technologies that depend on cooperative peering to operate (e.g. – Bittorrent). It may also limit the way we choose to use some of these technologies – and that isn’t a positive thing for a developing digital society.

And it goes without saying that the lawyers will have a field day with frivolous lawsuits.

But there’s even more at stake here…

If a guilty verdict is rendered, it’s important to understand what specifically constituted the acts of infringement. The RIAA wants to crush any Fair Use Rights an individual currently enjoys, and precedents established in this case could help them do that.

Sony BMG’s head of litigation, Jennifer Pariser, testified during the trial that it is Sony’s position that if an individual takes a CD they own and rips it to a computer they own, they are breaking copyright law and are, in fact, stealing. Richard Gabriel, council for the music industry, managed to convince the judge in this case, Michael J. Davis, to include in the jury instructions that the act of making a file available for download in itself constituted infringement, even if no one actually downloads the file.

This relentless push by big media organizations to extend the reach of copyright beyond its intended scope and limits should be a real cause for concern. Any victory based on this extended reach of copyright makes it easier for the rights we currently enjoy to be eroded. I have no doubt that the ultimate goal of this type of copyright litigation is to roll back the open nature of the internet. The rights of folks like Google and Microsoft to index the web and deliver organized and targeted results could ultimately come under fire from a growing expansion of copyright holder’s rights. We’ve already seen the start of that by some news organizations in Europe.

This case is about much more than some downloaded music files. That’s just the tip of the iceberg.

It is ultimately about control of what we can do on the internet…

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Microsoft Goes After Open Source…

May 15, 2007 by Leave a Comment
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Microsoft believes it intellectual property has been violated…

According to a recent article in eWeek, Microsoft is threatening to pursue litigation for alleged patent violations by open source providers, in a bid to force users to acquire their open source components from Novell – the only Linux vendor to have reached commercial terms with Microsoft over royalities. As Microsoft sees it:

…the Linux kernel violates 42 of its patents, the Linux graphical user interfaces run afoul of another 65, the Open Office suite of programs infringes 45 more, e-mail programs violate 15, while other assorted free and open-source programs allegedly transgress 68.

The problem Microsoft will have here is that they have never pursued IP infringement against a “corporation” like the Open Source community before. No doubt they are used to simply intimidating small firms into submission, and doing some type of IP swap with larger firms to settle any claims.

That won’t work with the Open Source community…

As a community, Open Source won’t be cowered into submission, and there is no IP owned outside of the General Public License (GPL) that could be swapped. This is a group that will defy and fight. And they will fight the same way they develop code – as a distributed yet coordinated community of volunteers.

And that should scare the hell out of Microsoft…

These folks will go on the attack and challenge the validity of every single critical patent that they are charged with infringing. And they will have thousands of people engaged in the process. They will dig up prior art from obscure yet valid sources. They will challenge specific claims as being overly broad or vague. They will challenge specific grants on the basis of how ‘novel’ or ‘unobvious’ they are – legal concepts necessary for obtaining patent protection.

As a global community, they will bring a depth of understanding and a throughness of technical scrutiny never before leveled at a patent portfolio. And they’ll have a passionate, pro-bono legal team to represent their efforts in court.

And at the end of the day, they’ll code around whatever they can’t invalidate…

By taking this course of action, Microsoft may end up sowing some market confusion for a few years – but they risk a lot for this small gain. It is well within the realm of probability that the courts could find a significant part of their patent portfolio invalid, or that they could end up narrowing the scope of many of their claims.

And there could even be a more immediate impact to Microsoft’s business from all of this. In the same way they are looking to scare off potential clients of non-Novell versions of Linux, the Open Source community could effectively call in to question the validity – and hence the value – of any IP assets Microsoft wished to license.

This could backfire for Microsoft in a major way. If they think the worst case for them will simply be having to live with the status quo, they better think again. And they should have no illusions about the limited upside they could possibly realize – free Linux and the Open Source movement will still be there at the end of it all.

They need to understand, there’s simply nothing “status quo” about Open Source…

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The Grand Illusion…

May 4, 2007 by Leave a Comment
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Digg certainly dug itself into a hole this past week…

The guys from Digg ended up looking as clueless as the lawyers issuing take down notices. There is no ‘erase everywhere’ on the internet – take downs are pointless. Once information is on the net, any thought that it can be controlled is just an illusion.

But there is also a bigger issue here…

The thinking that we can somehow use legislation, regulation or intimidation to surpress the flow of information should be a concern to everyone. Let’s not lose sight of the fact that this isn’t about copyright violations – no one was digging links to cracked HD-DVD’s. This is ultimately an issue about knowledge – who can have it and who can’t. And that raises issues that even go beyond free speech.

We shouldn’t be quick to cede control of knowledge to anyone…

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Digital Dystopia at McGill…

March 26, 2007 by Leave a Comment
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This looks like it was a great conference…

Michael Geist (a law professor at the University of Ottawa) had a post on his blog talking about the Digital Dystopia conference he participated in at McGill University. It was an excellent legal/regulatory focused discussion of intellectual property, copy protection, the DMCA, and the roles of government vs. the marketplace in this controversial space.

Here is a video of the full conference:

There are some really great gems of insight seeded throughout the conference, but at almost 3 1/2 hours long, it will require some serious dedication of both time and interest to watch it all the way through. If you like, just pick a few points in the video and watch for a few minutes.

If you’re interested in the content and DRM space, I’m sure you’ll something here you’ll like…

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Allchin Wants Both A Mac And An iPod?…

January 23, 2007 by Leave a Comment
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These lawsuits must be killing Microsoft…

I’m not talking about the financial payouts.  I’m talking about the quotes that are coming out from emails made public as part of the discovery process.  In particular, emails from Jim Allchin.

Jim Allchin is the senior Microsoft executive responsible for operating systems, internet platforms, and streaming media.  He is also a straight up, honest guy that call’s things as he sees them.  Because of this, his emails concerning strategic matters have a brutal frankness to them that make them very quotable. 

A quote from one of his emails made it into Steve Jobs most recent MacWorld keynote:

Jim Allchin - I'd Buy A Mac

Now it appears the press will be jumping on some additional emails of Mr. Allchin’s.  In these emails (dated 2003) he suggests to senior executives that Microsoft shift away from its current media player partners and work out a deal with Apple to start working with the iPod. 

So I expect we”ll start seeing coverage of how he didn’t just want a Mac, he wanted an iPod too…

The sentiment Jim Allchin conveyed in all of these emails was spot on.  Microsoft needed a call to action on several fronts, and seeing that call come from someone at the top should be reassuring.  Unfortunately, the press can easily pull out little snippets of these messages and paint almost a parody of what was actually trying to be conveyed in them. 

It is also unfortunate that our legal system is making it impossible for people running companies to use email – or any form of electronic communication – to express raw, honest thoughts, feelings, or concerns. The risk that private, internal messages can be made public through even the most trivial of lawsuits is very real.

And a very real problem…

You almost need to be read your Miranda Rights before you start typing – “Anything you say can be used against you in a court of law.” Sadly, they should add “in the court of public opinion” to that as well.

Just ask Jim Allchin…

 

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New Rights For Patent Licensees…

January 11, 2007 by Leave a Comment
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I read an interesting article over at E-Commerce Times talking about a new ruling by the US Supreme Court overtuning a lower court ruling that had prohibited a patent licensee from suing their licensor for patent invalidation.  It’s worth a look.

http://www.ecommercetimes.com/story/55085.html

With so many overly broad patents being issued (and many being bought by well funded ‘patent trolls’), this ruling should be welcome by many in the tech industry.  The fact that that wasn’t permitted in the past is just a small example of how broken our entire intellectual property framework has become.

This is a subject I need to revisit…

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