FFIP Blog Review:

Author: Dennis D. Crouch, law professor and patent attorney, University of Missouri
Blog Name: The Patent Blog, Patently-O
Post Frequency: Daily
Content: All things patent oriented. Anticipation, CAFC, Claims, CLE, Contributory Infringement, Damages, Design Patent, Doctrine of Equivalents, Enablement, Inducement, Injunctions, Means Plus Function, Motivation to Combine, Obviousness, On Sale, Legislation, Patent Prosecution, PHOSITA, Priority Rights, Public Use, Software, Statutory Construction, USPTO, Vitiation

Sample post after the jump:
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The bridgeport-v-combs opinion from the the 6th Circuit, is a very interesting. I view this case as similar to Ebay v. MerchExchange. In Ebay the Supreme Court was harmonizing injunction cases so that the same standards apply to patent cases as to all other cases. In Brigdeport v. Combs the the same thing is being done with statutory damages. This is great news is it helps restore some balance to copyright actions.

Here is the detailed break down:

1. UNIVERSAL RECORDS is a defendant, Universal has been a plaintiff in many file sharing suits
2. The court viewed 5 factors to determine appropriateness of the extremely large statutory damages. These factors are to judge the “the reprehensibility” of the defendants actions :

Factor 1: the harm caused was physical as opposed to economic;
Factor 2: the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;
Factor 3: the target of the conduct had financial vulnerability;
Factor 4:the conduct involved repeated actions or was an isolated incident;
Factor 5:the harm was the result of intentional malice, trickery, or deceit, or mere accident.
These factors were taken from State Farm, 538 U.S. at 419

3. The factors should not weigh in favor of large statutory damages in noncommercial sharing case. This means that Universal has come up with a legal stratagem to defeat most of it own threats.

Let’s take a closer look at these factors more closely:

Factor 1: the harm caused was physical as opposed to economic;

Brian’s Comments: This factor will NEVER weigh against a non-commercial sharing. Sharing does not cause physical harm.

Factor 2: the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others;

Brian’s Comments: Sharing does not cause health of safety problems ever. That is two strikes.

Factor 3: the target of the conduct had financial vulnerability;

Brian’s Comments: this is another factor that weighs in favor the the defendants. In RIAA suits it is the huge multi million dollar cooperations going after the small individuals often with little to no legal council. That is three strikes against large statutory damages.

Factor 4: the conduct involved repeated actions or was an isolated incident;

Brian’s Comments: This is the only factor that could go strongly against the defendant, since large scale sharing is very easy. Although most of the case brought so far have no real evidence of actual sharing, to speak nothing of repeated offenses of similar conduct. The score is 3-1 in favor of the defendants.

Factor 5:the harm was the result of intentional malice, trickery, or deceit, or mere accident.

Brian’s Comments: The last factor is a wash, but could go either way dependent on the court although I think it should go in favor of the defendant. For many people sharing is a generational norm and should be legalized. I am of the Napster generation and did not view non commercial sharing as malice, trickery of deceit. Everyone in my gen shared. It was part of a culture that was empowered by tech, we support artist through patronage. No one I know shared from malice.

The outcome of using these factors should be 4 to 1 or 5 to 0 in favor of the non commercial sharing. When only one factor is present, statutory damages should only be enforced at a ratio of 1:1 or 2:1. These ratios may take some of the wind out of the fear tactics the RIAA is using to intimidate pro se litigants.

I strongly recommend reading this case. The main question this leaves unanswered is how do we apply statutory damages when there is no proven harm and no compensatory damages? Does this make all the ratios a 100000:1 and excessive or is there a legal doctrine to support statutory damages as a replacement for harm based compensation. If so are the courts doing anything more then engaging an unjust enrichments by taking money from one who neither profited nor caused harm.

PS if anyone has copies of the briefs to the 6th Circuit I would love to see them. Email me at [email protected]

Full text of this issue after the jump:
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Come by and play with the OLPC or steal some FSF and CC swag.

Opening Q&A:
Is Open Rights Group fighting for a UK First Amendment? ORG is amenable to this but it is beyond the current scope of ORG. If someone else proposes it ORG would support it

What is the next step in the copyfight? Affirmative rights for users that cross borders.

Thoughts on the reading:
Mission Burritos, now I am hungry…
Crowd vibe – the feel of a good concert
32 is too old
Don’t trust anyone over 25

Post Q&A:
Civil Disobedience: Tech can enable both the small room comunites to development and large scale public flagrant activism acts to enable the people to colaberate and fight the system.
Disney: Love the sin even if you hate the sinner

Great reading. Cory did a great job using his voice and meter to transform the reading into a wonderful experience.

Thanks!

My editors have informed me that I should NEVER post at 3 am, during finals, after 2 weeks of questionable sleep no matter how important it is. I promise to let my editors help me .

PS: If you see a grammar or spelling error in any of my post please let me know. It does not hurt my feelings. I am dyslexic and I wish there was an easy way crowdsource blog editing. Your help is always appreciated. If the error is in the wiki section, just fix it yourself.

Thanks for your understanding!

Brian Rowe

3L at Seattle University Law as of 26 minutes ago.

The Hague Declaration is the Universal Declaration of Human Rights meets A2K and Open Standards for Governments.

The declaration calls upon governments to;

1. Procure only information technology that implements free and open standards;
2. Deliver e-government services based exclusively on free and open standards;
3. Use only free and open digital standards in their own activities.

Join the movement bysigning The Hague declaration.

Full Text of the Declaration:

The Hague Declaration
Adopted and proclaimed
by the founders of the Digital Standards Organization
in The Hague on 21 May 2008

Whereas almost 60 years ago the Universal Declaration of Human Rights1, established in international law these rights and freedoms:
1.Freedom from discrimination by government or law (Article 2, Article 7).
2.Freedom of movement within the borders of each state (Article 13.1).
3.The right to participate in government (Article 21.1).
4.The right of equal access to public services (Article 21.2).
Whereas these rights and freedoms are today accepted by every democratic government and backed by the constitutions2 of most states;
Considering that all countries are moving, at different rates and from different starting points, towards a society in which full and effective participation in government and society, and access to public services, education and opportunity, are increasingly dependent upon access to electronic communications;
Considering more specifically that:
Government information, services and resources are increasingly provided virtually rather than physically;
Freedom of speech and association are increasingly exercised on line rather than in person;
The Internet and the Web provide an unprecedented avenue to equality of education

and opportunity for all peoples throughout the world;
Considering that the benefits of the Internet may only be guaranteed, and our hard-won human rights may only be preserved as we transition to a digital society, ensuring affordable, equal access to the Internet, if the openness of the Internet is also preserved;
Considering the unique role that free and open digital standards can play in ensuring this result by fostering competition and innovation, lowering costs and increasing choice;
Considering that governments, through example and procurement, are uniquely able to ensure that all people achieve the benefits that free and open digital standards can provide;
Considering that these benefits are of particular importance to the economically, socially, and geographically disadvantaged peoples of the world;
Considering that there is increasing consensus3 on the attributes of a free and open digital standard;
We call on all governments to:
1.Procure only information technology that implements free and open standards;
2.Deliver e-government services based exclusively on free and open standards;
3.Use only free and open digital standards in their own activities.

I was curious about Childnet’s Young People Music and the Internet guide and decided to email [email protected] to get my own physical copy of the guide. I was very surprised to receive a return email from an RIAA employee! Not once in the guide is the RIAA mentioned, only a partner organization pro-Music.org

This guide for parents and teachers has been written by children’s charity Childnet International, with support from Pro-Music and Netfamily news.org.

The views in this guide are solely those of Childnet. Childnet is a non-profit organisation working to help make the internet a great and safe place for children. Registered as a charity in the UK (number 1080173).

Pro-Music is an international music sector education campaign about digital music. This guide is supported by Pro-Music member organisations representing musicians, performers, artists, major and independent record companies, publishers, managers and retailers across the music industry. To order copies of this leaflet e-mail: [email protected]

Here is the response I received from ProMusic via the RIAA:

No Problem. I will e-mail him.

We actually list it on our homepage:
http://www.riaa.com/toolsforparents.php

Best/

Coordinator, Communications

Recording Industry Association of America

(Personal contact information removed)

After further research it appears that the RIAA’s version of the leaflet has been up for about a year. (Thank you Internet Archive.) I would expect a little more disclosure and attribution from a charity. Childnet simply reworked older propaganda from the RIAA while removing any direct links to the less popular RIAA brand by misleading readers to believe that their support comes from ProMusic.

I hope we can lobby the charity to change the leaflet and come clean over who their partners are. It was a little jarring to request a leaflet from a charity and receive an email response from an organization that is notorious in the US for intimidation tactics, privacy violations and harassment of college students.

Childnet International’s mission is to work in partnership with others around the world to help make the Internet a great and safe place for children. Childnet anounced on April 30th that they are launching a

global information campaign to explain the world of music downloading to teachers and parents worldwide.

This updated pocket-sized guide, supported by Pro-music, the international alliance of music sector groups, will be distributed through schools and colleges, libraries, record stores, teaching portals and websites in 21 countries.

The primary problems with this campaign are twofold:
1. The campaign appears to be little more then a scare campaign cooked up the RIAA. The guide to “Young People, Music and the Internet” ignores users rights like Fair Use and provides no real resources for parents that want to learn about the issues and options. As a parent I am insulted by the single sided perspective that uses fear over facts.

2. The campaign fails to educate young people or parents on real safe online practices. Services that include free legal content like Miro, jamendo.com and Magnatune are ignored while the resource for finding music are nothing more than a list of approved online music stores. This campaign is as close to a pure advertisement as one can get while still pretending to educate.

Here is an example of the scare tactics used to “educate” one on using music at home

“What are the risks of looking for music?”

One of the risks with P2P is that children may come across unwelcome content such as viruses, pornographic or violent images. Some files are purposely misnamed to trick people into downloading them. Because of the way P2P services work, filtering tools that can block offensive content like porn or violent images and video on websites are not effective in blocking the same content when made available through P2P. This leaves children at risk.

Some P2P software lets users “chat” with other file-sharers, most of them strangers, so the same concerns and rules about chatting on the internet should apply here too. See Childnet’s
www.chatdanger.com website.

Brian’s Comments: Pure scare tactics with little to no factual basis. Chatdanger.com is another scare tacit site that is short on facts and long on FEAR.

“Could our private files leak on to the internet?”

P2P software opens “doors” in your computer which may compromise privacy and security. It is possible to inadvertently share private and confidential details including financial information with other file-sharers.

Some P2P programmes come with extra software, called “spyware”. This may report which websites you visit to marketing companies, or even record your passwords and send them to fraudsters.

File-sharers’ computers may be vulnerable to viruses infecting other machines on the P2P networks and to people trying to control computers remotely. In many instances remotely controlled computers are used to send unsolicited emails or spam without the knowledge of the owner.

Brian’s Comments: More scare tactics with little to no factual basis. Most P2P software is just as safe as other programs I am more worried about a root kit from used Sony CD’s then a P2P client. If you want to teach people how to avoid spyware give them a list of well reviewed P2P clients.

“Can we copy music if it’s online?”

Copyright can seem confusing, but it applies to digital music just as much as it does the physical CD. Copyright rules protect the artist and creator and allow them to be rewarded for their work. Some people are happy for you to copy or use their work for free, but most artists and musicians rely on copyright law to guarantee an income.

Copying music you’ve bought to your computer or player is a common activity which can generally be done without legal consequences. However distributing a song to others without the permission of the rights holders is a very different story. Unauthorised copying and distribution of copyrighted music is breaking the law, and that includes file-swapping of any copyrighted music on the best-known P2P networks such as Limewire. The recording industry has taken action against many people who have done this, with some large fines resulting.

Parents and carers can be held responsible for what happens on the family computer even if they are not themselves engaged in illegal activity.

Brian’s Comments: Copyright laws are national in scope for some countries noncommercial sharing is legal. The RIAA’s litigation and legal claims over distribution and parent liability are conjecture at best. Does it really make children safe online to SCARE them with lawsuit threats? Why not spend the time teaching them how to use the internet responsibly. This is like teaching safe sex through a scare video of STD’s without teaching how to use a condom. Finally, what about Fair Use and Fair Dealing? Both the US and Israel have strong Fair use exceptions while much of the rest of the world has other exceptions. Why only teach one side of the issue? Childnet, give parents some credit for having a brain and next time provide them with facts and options not propaganda.