All the World's a Sound Stage

If you like aleatory music, you'll love the new iPhone app RjDj:

The application includes a set of entrancing songs that go on forever, using the iPhone’s internal microphone to ‘listen’ to the noises and voices heard in your proximity to dynamically create music.

I earlier blogged about this type of unexpected fixation of sound in the context of overheard conversations; I wonder if this raises any new copyright issues. It's certainly more transformative than "Overheard in New York."

The RjDj app reminds me a bit of Thich Nhat Hanh's advice to approach both "garbage and flowers" with equanimity. It promises to turn even the most annoying loudmouth on the sidewalk into an instrument in an electronica symphony. I'm hoping it will be more popular than bubble wrap and less. . . er. . . edifying apps.

Sample song below the fold . . . .

I'm also wondering if we'll ever see something like a Blagojevich ringtone:

Protests organized by SMS helped unseat Joseph Estrada in the Philippines and bring President Gloria Arroyo to power. When Arroyo found herself embroiled in a corruption scandal involving tape recordings of phonecalls to voting commissioner Virgilio Garcillano, one of the tools activists used to spread information was a ringtone. The ringtone featured a snippet of dialog between Arroyo and Garcillano and rapidly became one of the world’s most downloaded ringtones and spawning over a dozen remixed versions. The personal nature of mobile phones makes them the perfect venue for protest, even if the protest is as innocuous as having your phone chirp “Hello Garcia?” in the President’s voice every time you get an SMS. What the mobile giveth, it can taketh away.

Posted by Frank_Pasquale at 08:35 PM | Comments (0) | TrackBack

Public Service for Creative Commons

Folks,

If you don't know Mike Carroll, fix that. He is currently a visiting professor at American University and an all-around great person. In addition to many accomplishments such as publishing insightful articles and running Carrollogos, Mike is on the board of Creative Commons. He has circulated an email on the Cyberprof listserv regarding Creative Commons and its needs. Mike has allowed me to publish it here.

If you know you want to give to Creative Commons do so here. If you need more information, please take a read and contact Mike with further questions.

BEGIN EMAIL:

Dear all,

In the past, Mark has been gracious enough to allow me to address a year-end pitch to the list, and I hope that is still okay. As one of the Board members of Creative Commons, I am duty bound to help find support for the organization, and members of this list have been very generous in the past. Thank you for that, and I hope you can continue that support. We close our annual campaign on December 31st.

In the past, members of this list have been generous supports, and I thank you for that. I have heard from some folks who want to know what is the work that requires further support. Essentially, there are 5 areas of activity that are likely to be of interest: Law, Culture, Education, Science, and Tech. If this is the kind of work you care to support, please visit Creative Commons' Support page.

Law. CC now is in different stages of progress with 50 jurisdictions around the world that have ported CC licenses or are in the process of doing so. The professional network engaged in this work is a remarkable group who are self-funded, but CC staff must coordinate the activities of this growing group. Working in coordination with this group, CC is in the process of splitting the public domain dedication tool into two pieces. One, which is about to be released, is CC0 – a public domain dedication/copyright waiver tool. http://wiki.creativecommons.org/CC0. In 2009, with support, we hope to launch a public domain assertion tool that will allow a person to make a machine-readable and human-readable assertion that a work is in the public domain and to provide metadata identifying the factual basis for the assertion (e.g. publication date) and the identity of the person or entity making the assertion.

Culture. CC licenses continue to become recognized by professional creators, like Nine Inch Nails, as well as a range of amateurs and the Web 2.0 businesses built around amateur creation. There’s been continued growth in the use of the licenses across the range of human creativity.

Education. ccLearn is working with the open education community to be more self-aware of copyright licensing choices being made with respect to Open CourseWare and other open educational resources.

Science. We have a research project called Neurocommons, which aims to demonstrate the power of open access combined with Semantic Web technologies to promote the progress of science. The Knowledge Base has now been released and is being hacked on by a variety of bioinformatic researchers. With continued advocacy, the Science Commons Material Transfer Agreement that supplements the UBMTA (university-to-university licensing) with a standard university-to-industry license also is gaining traction.

Technology. The CC tech staff work on three layers. The bottom layer involves keeping the web site operational and up-to-date. The middle layer involves working with new companies that want to incorporate the CC licensing engine into their interface or to otherwise offer a CC licensing option to their users. Our tech staff often have to work with them to ensure that they understand the machine-readable layer of the licenses and how that might be used. One of the best results of this kind of consultation is the Flickr search tool. http://www.flickr.com/creativecommons/. Picasa now also enables CC licensing. The top layer involves standards work and other high-level technology discussions involving the future of the entire web. This year, after more than a year of patient advocacy, CC tech staff were instrumental in getting the W3C to bless RDFa, a protocol that allows the regular web and the semantic web to interoperate. CC licenses were the use case for this standard. Similarly, the Science Commons scientists played an essential role in successfully advocating for a number of open bioinformatics standards recommended by the W3C. This is hard, essential work, that is hard to fund but will have a lasting effect that favors openness on the web.

I recognize that this is a tough year for everyone, of course -- CC is no exception -- so your donation would be particularly welcome. (As you can see, we have inaugurated a new project called the CC network; the details are on that page. Your donation entitles you to membership.) Basically you pick the amount you want to donate and click "Join" under that number -- or just put in a number of your own! All donations gratefully accepted. And depending on the amount, the donation brings all kinds of cool things, including an Open ID, your own CC network site, a jump drive full of Jonathan Coulton music, a signed Lessig book, a cool CC laptop sleeve and so on.

Thanks so much for this -- and please feel free to pass this e-mail on to others who might like to support CC.

Warm regards,
Mike

Posted by Deven_Desai at 04:53 PM | Comments (0) | TrackBack

BRIGHT IDEAS: Trade Secrets, Law and Practice

As the second book in the Bright Idea series we have Trade Secrets, Law and Practice (Oxford University Press). David Quinto and Stuart Singer are the authors. David is a founding partner and head of internet litigation at Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles, CA. Stuart Singer is a partner at Boies, Schiller & Flexner, LLP. I know David from my time at Quinn Emanuel and from our work together on The Law of Internet Disputes (Aspen).

The case that spurred David to write Trade Secrets was in its early stages when I was at the firm. Now, more than ten years later, the book is out. It has drawn priase from Jim Pooley (the author of one of the most useful treatises on trade secret law), Lance Liebman (a former Columbia Law School dean who now heads the American Law Institute), and Martha Barnett (a former ABA president). So here is David explaining what drove him to explore the way trade secrets operate and the journey involved in writing the book. With that, here's David.

DAVID QUINTO:

Trade Secrets: Law and Practice has been a long time in the making. Almost ten years ago, I got involved in a knock-down, drag-out trade secrets dispute between my client, Avery Dennison, and 3M. Avery had innocently hired three of 3M's R&D people: one contacted Avery seeking a job in Los Angeles because his fiancée had moved there and his 3M job had just been terminated; a second wanted to re-locate to Los Angeles to be near family and landed at Avery after a head hunter sent his resume there; and the third decided to move to California after he was transferred by 3M to a facility more than an hour's drive from his home. The three employees had worked for 3M in upstate New York, Minnesota, and Canada. Significantly, none had worked on any product competitive with anything Avery manufactured. In Los Angeles, Avery did not see any particular problem. From 3M's viewpoint in St. Paul, however, matters appeared more ominous. 3M and Avery competed in many areas and not only had Avery hired three R&D employees in quick succession, but all three were intimately familiar with technologies that could potentially be useful in manufacturing Avery's products.

The litigation lasted several years. In the process, the parties conducted exhaustive discovery. Among our surprises were the discovery that 3M's crown jewel trade secret had been patented (and, hence, wasn't a trade secret at all) and that another claimed trade secret had been surreptitiously published by 3M as a hedge against the possibility that a competitor might independently discover it and attempt to patent it. At the end, there was no evidence of any use of any 3M information by Avery. However, by the time the parties entered into a confidential settlement following a three-day mediation, 3M had spent more than $30 million in attorneys' fees leaving no stone unturned. Avery's fees were substantially less, but were nonetheless substantial.

I was assisted in the litigation by my then-partner, Warrington Parker. On cold Minnesota nights, we thought about what the parties might have done differently to avoid incurring enormous legal fees fighting over nothing. We thought about how to prove a negative, that no information had been misappropriated. And we war-gamed the possible injunctive moves the parties could make given that the employees were all subject to non-compete agreements and given that California adamantly refuses to enforce such agreements. Could the employees be sued elsewhere? Could Avery be sued for inducing breach of contract? What would the Full Faith and Credit clause of the Constitution require with respect to enforcing in California a judgment entered elsewhere? What could be done to preempt a claim brought in another state?

After the suit was over, I continued think about problems unique to trade secrets litigation. For example, a number of states reject the doctrine of "inevitable disclosure" as a basis to award injunctive relief, but almost every state has a statute allowing a "threatened" misappropriation to be enjoined. What's the difference? Will a "threatened" misappropriation justify the issuance of a permanent injunction, or merely a preliminary injunction? Is different injunctive relief available if a misappropriation is "inevitable" as opposed to "threatened"? Do the states that enjoin "inevitable" disclosures always do so, or only when a non-compete agreement is involved? How can a defendant find an expert to opine that something is not a trade secret when no competitor will disclose its manufacturing process? Which states will require a trade secret plaintiff to identify its trade secrets with reasonable particularity before commencing discovery? Is a state law requirement that the plaintiff identify its trade secrets before commencing discovery enforceable in federal court? Do different states follow different rules in determining whether and when ancillary claims will be preempted by a trade secret misappropriation claim? When might such claims be preempted even if no trade secret misappropriation is alleged? What defenses are unique to trade secret litigations and how are they established?

I believed that a book exploring the ins-and-outs of trade secret litigation on a state-by-state basis, written from each the plaintiff's and the defendant's perspective, would be useful. I also thought it would be useful to consider what measures could have been undertaken to prevent the misunderstandings that led to the 3M v. Avery litigation, the steps that a trade secret owner could take to investigate and prepare for a possible claim, how to protect trade secrets at trial, and when it makes sense to seek criminal prosecution of a trade secret thief. Eventually I submitted a book proposal to Oxford University Press, which circulated it for peer review. One of the reviews, shared with me anonymously, appeared to have been written by a law school friend, Stuart Singer. Stuart served as president of the Harvard Law Review, was asked to clerk for the U.S. Supreme Court immediately upon graduation, and is now a partner of David Boies at the Boies, Schiller & Flexner firm. I put it to him: if you're so enthusiastic about the idea, why don't you help me write the book? I'm enormously grateful that he agreed to do so.

Posted by Deven_Desai at 02:27 PM | Comments (0) | TrackBack

When No Dog Poop is an Island

I've twice heard co-blogger Dan Solove talk about the Korean "dog poop girl," a woman hounded by internet shamers when she refused to clean up after her dog on a Seoul subway. The first time I heard the story I just found it funny, but at a conference earlier this year the tone of the audience was different. I felt bad about laughing at some internet satires of the woman that Dan had put on powerpoint slides. Part of it may have been the theme of the conference (legal responses to cyberharassment), but perhaps a larger cultural turning point is in the works.

Surveillance has now advanced to the point that a city in Israel is starting "dog poop DNA banks," enabling enforcers to (potentially) identify the source of any offending rubbish:

[V]eterinarian Tika Bar-On . . . says she hopes to make DNA banking mandatory for all dog owners. At that point, instead of a practice of positive reinforcement, she imagines a system involving sidewalk poop patrols and penalties for nonscoopers. For Bar-On, this is about more than waste elimination: “We can use this DNA database for important things like genetic research on dog diseases,” she says. “We could also use DNA to identify strays and return them to their parents.” But until then, she’s focusing on feces because, as she says, “when you go to the park with your kids and they meet dog poop, it’s not very pleasant.”

My guess is that most Americans would resist the central planning implicit in this solution. But if the alternative to statism is vigilantism, it may start looking more attractive. Like trademark in the commercial realm, DNA here may be the best way to identify source in an orderly way.

Posted by Frank_Pasquale at 02:10 PM | Comments (2) | TrackBack

Music, The Internet, Business Models, and Freedom

Everything old is new again. Lawsuits regarding music use, confusion over how to make money in the digital age, content and distribution revenue models, all of these issues seem never to go away. They are the chicken or the egg questions for creation and its relationship to making money from creation. Nonetheless, some nuances change as the details change. So let’s being with lawsuits to enforce alleged rights.

The RIAA says it will cease using lawsuits and courts to protect its copyright interests (unless an alleged file sharer is a major user as in 5,000 to 6,000 songs per month). Yeah. The RIAA decides that coordinating with ISPs to monitor individual usage and then have the ISP alert users about questionable usage and possibly cut off a user who fails to respond. (CNET has a copy of the form letter here). BOO! (One problem among many: Imagine a world where one is cut off and tries to get a new provider. That provider asks whether one was cut off, one is denied access and so on).

In other news, Warner Music has pulled out of licensing its music to You Tube. Warner Music seems not to be making money (or enough in its view) whereas Universal Music claims their YouTube deal has generated “tens of millions” of dollars for the company. Universal stands to make close to $100 million from streaming music and video this year and YouTube accounts for a large piece of that income. The problem seems to be that YouTube pays the companies for the content but YouTube is not seeing revenue from that content. So with almost 100 million users a month, YouTube is a great way to reach people. But wait a moment, the music channels are a huge part of YouTube’s content success (just not monetary success):

Universal's YouTube channel is overwhelmingly the largest on the video site. The record label is the all-time most viewed channel, with nearly 3 billion views. Second-place Sony BMG, the second largest recording company, trails by more than 2 billion views with 485 million total views. Of the top 10 channels on YouTube, 7 are music related. They include channels from Warner Bros. Records, Soulja Boy, and Disney's Hollywood Records.

So the old model of using music videos to market music has changed to using the videos as the product.

Speaking of changing models, Andy Samberg and/or his business team is quite shrewd. NBC has pulled content from YouTube and tried to force people to NBC.com or Hulu.com to see what it thinks are the best clips and shows. That means that usually a Saturday Night Live clip featuring Samberg would not and could not appear on YouTube (or at least for very long). But Samberg’s video clip, Jizz in My Pants, is on YouTube and had more than 9.5 million views already (video below). According to CNET Samberg and his production company own the rights to the clip and have a music deal with Universal Music Group. So Samberg chose YouTube as better way to reach people than NBC.com or Hulu.com. Good call. Here’s the best part: NBC is a Universal company. [Correction: Peter Kafka points out "NBC Universal and Universal Music Group are not related companies. UMG’s parent company Vivendi owns a minority stake in NBCU (which is owned by GE). But they’re not related in any other way." in the comments at Madisonian, but I thought that info should be here too. Thanks, Peter] Nonetheless, the two may want to share some notes see if they can learn from each other. Yes, the revenue sharing issues must be sorted but NBC (whose move to Leno five nights a week has twisted my stomach in ways I wish on no one and demonstrate desperation/an admission that they are unable to make profitable television anymore but that is a discussion for another time)… Oh yes NBC should realize that having everything on its sites and choosing those clips is not so intelligent. At least allow people to upload what they want. (last I looked that was not possible) Users will do the work and lend Web credibility to the choices. Worst case NBC has to say no because it needs to clean up some licensing issue. That is better than the clueless model they pursue now.

Here's the video:

[youtube][/youtube]

Posted by Deven_Desai at 11:12 PM | Comments (0) | TrackBack

Symbolic Control -- Movie Studio Logos Over Time

As many of you know I love films and pop culture. They intersect with trademark and copyright all the time. As far as the idea that the symbols are consistent and always or only communicates what the purveyor of the mark wishes, I have doubts. For example, 20th Century Fox has music, "20th Century Fanfare," that many know. Yet, for me, I hear that music and still think that a moment later John Williams' score to Star Wars should commence.

I am not saying that the logos don't indicate source. I am saying that these symbols evolve. Indeed, the Neatorama blog has a history of studio logos that illustrates the way some logos changed over time. Most seem like small changes and are interesting as samples of changing styles. But take a look at Warner Bros. That one has gone through some interesting shifts. So take a trip down memory lane and maybe relive the opening to a favorite film.

Posted by Deven_Desai at 04:49 PM | Comments (0) | TrackBack

Copyright in Movie and Painting Styles?

Kelly Osbourne's recent One Word is directly inspired by the great film Alphaville:

Ms. Osbourne happily acknowledges the resemblance:

"I'm going for something like very 'Alphaville,' " Osbourne told MTV News . . . when she was dreaming up the concept...."Very '60s, nothing that I thought I'd ever do, like very black-and-white. I'm excited for that. And I'm going to wear a wig!"

To flesh out her idea, Osbourne enlisted director Chris Applebaum to emulate "Alphaville," Jean-Luc Godard's classic 1965 avant-garde film. Their take . . . was filmed in black-and-white 35 mm, while Osbourne herself embodied the look of the film's star, Anna Karina, with sharp bangs and porcelain skin.

I've not been able to find out whether Osbourne got a license from the owners of the copyright in Alphaville. I don't know if she needed one, but hypercautious Hollywood IP lawyers may well have wanted one. Perhaps aware of that legal issue, the Red Hot Chili Peppers appear a little more reticent about discussing the inspiration for their video for Otherside. Though some say its "black-and-white/monochrome Gothic style [is very] similar to Robert Wiene's The Cabinet of Dr. Caligari," a Jonathan Dayton stated:

"We did look at Caligari, and we looked at a lot of German Expressionist film. But it was also very important to avoid 'Caligari.' It was both inspiration and something to work around, because it has such a strong, specific style, and there have been other videos that have completely ripped it off."

Taking this from the sublime to the banal (and from the appropriator to the originator), Thomas Kinkade has been translating his painting style into a guide for a movie to be based on his vision:

Whenever possible utilize sunset, sunrise, rainy days, mistiness -- any transitory effect of nature that bespeaks luminous coloration or a sense of softness.

Emphasize gentle camera moves, slow dissolves, and still camera shots. A sense of gradual pacing. Even quick cut-away shots can slightly dissolve.

[Make] references to my anniversary date, the number 52, the number 82, and the number 5282 (for fun, notice how many times this appears in my major published works). Hidden N's throughout -- preferably thirty N's, commemorating one N for each year since the events happened.

I don't think any individual guideline of Kinkade's is any more copyrightable than, say, the gender-switch theme of Beyonce's If I Were a Boy. But what about the combination of all 16 guidelines? The "52" references remind me of mapmakers' practice of putting in one fake location on maps to catch copyists--though the location of any given place on a map is not copyrightable, copying a copyrighted map in toto is not permitted.

Kelly Osbourne's description of the Alphaville inspiration for her video almost made the movie sound like "fashion" unprotected by copyright law. But the real reason for fashion's lack of copyrightability is not vagueness but functionality--clothes can be worn. Dayton's distancing of Otherside from Caligari suggested an anxiety of influence--less a legal worry than an avoidance of the derivative status of the videos that "ripped off" Caligari.

Given the grandiosity of his interview with 60 Minutes, Kinkade's ambitions may be a little grander. Reducing his style to words paves the way for a broader IP claim over a style and manner of painting and image-crafting--or at least a family of marks:

"Thomas Kinkade is a multi-dimensional lifestyle brand, similar to Martha Stewart or Ralph Lauren," says Kinkade. "You can put a Thomas Kinkade couch beneath your Thomas Kinkade painting. Next to the Thomas Kinkade couch goes the Thomas Kinkade end table. On top of that goes your collection of Thomas Kinkade books, Thomas Kinkade collectibles, Thomas Kinkade throw rugs. You can snuggle your Thomas Kinkade teddy bear."

"There is a genius in what we've done," says Kinkade. . . . [But] Kenneth Baker, critic for the San Francisco Chronicle, barely conceals his contempt: "He has a vocabulary, as most painters do. And it's a vocabulary of formulas, unfortunately. And he shuffles the deck every so often. Lighthouse, cottage, sea, ships, sky, so on, so on. Little bit of waves, so on, rocks. And you end up with this." . . .

When a canvas has felt the touch of Kinkade's brush, it may be worth $50,000. But since he can?t do it all, he has dozens of hired hands to help. Their touch of the brush is less expensive, but regardless, product must be moved. And at QVC, The Home Shopping Channel, Kinkade says his art has "sold upwards of $1 million an hour."

It's a tricky legal question as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection when another is inspired/corrupted by it. Or what remarkable idiosyncrasy should be trademarkable. But for the aesthete, the policy question may be easy: how best to slow down Kinkade's culture industry, and spur Osbourne's and the Chili Peppers' clever revivals?

PS: Here are the videos referenced:

Osbourne:

Red Hot Chili Peppers:

Alphaville:

Caligari:

x-posted from Madisonian.

Posted by Frank_Pasquale at 11:18 PM | Comments (10) | TrackBack

The Sanctity of the Trade Secret

Investigative journalists at ProPublica have partnered with Businessweek to investigate serious allegations against natural gas drillers. Some are engaged in drilling that may threaten drinking water supplies--and claiming that trade secrecy protections keep environmental regulators from finding out if people are being endangered:

Some regulators and many environmentalists worry that the fluids injected into many U.S. gas fields could be contaminating drinking water with benzene, methanol, and other toxic substances. The industry counters that its methods are safe. . . . [But] Halliburton [and other drillers] says . . . reluctance to release information about drilling chemicals reflects only a desire to protect valuable trade secrets. "If these formulas were to become available to other companies, it is possible that we could lose our competitive advantage with respect to those companies, not only in Colorado but throughout the world," says [a] Halliburton spokeswoman.

Halliburton's assertions here are in line with some major landmarks of "trade secret takings" jurisprudence, including Monsanto (about pesticides) and Philip Morris (about tobacco). However, this line of doctrine is sufficiently underdeveloped that it is by no means an open and shut case. The relationship between changes in IP law and the takings doctrine is a vexed area of law; as a legal realist, I'm surprised by how often IP is treated as real property without the usual types of hedges that limit property rights.

My hope is that the temporary reprieve from high gas prices may undercut the "drill at all costs" mentality that lends support to drillers here. I also hope that work advocating the "virtues of treating trade secrets as IP" focuses on how limits on IP (such as nonpatentability of chimeras) should be imported to trade secret law to protect public health. I'd guess even the most compelling and eloquent "property rights" proponents in the IP community would concede that.

Posted by Frank_Pasquale at 03:22 PM | Comments (3) | TrackBack

Unicorns, PHOSITAs, and Other Creatures

The “reasonable man” or “reasonable person” is that mythical creature (not unlike a unicorn) that exists in many different areas of law purportedly to allow us to view the situation at issue from a reasoned, logical, objective perspective. We have in patent law a special breed of this legendary beast – the “person having ordinary skill in the art” or PHOSITA. In teaching students about the PHOSITA, I had always assumed that the concept would be fairly simple to grasp, since the reasonable person was, or at least should be, familiar to them. This assumption was shattered, indirectly, by one student’s exam answer.

I am not sure if the student was absent the day I introduced the PHOSITA and thus he took me at my phonetic pronunciation, or if instead he was clever and was making a point I had earlier failed to grasp. (I personally believe the former, but I could be wrong.) Anyway, he answered all of his exam questions by looking at the issue from the perspective of the “Faux-Cita.” The fairy-tale beast raises its ugly head…

For me, any amusement during exam grading results in an unnatural amount of laughter. But once I recovered from this outburst, I started thinking about the unintended wisdom of the “faux-cita”. This reasonable person, or ordinary artisan, is a concept that I took for granted; but in reality, this legal fiction is a moving target for students. He changes based on the invention in question – the PHOSITA in rocket science is different from the PHOSITA in running shoes. But he also may change based on the test for which we are using him – How would a PHOSITA understand this claim term? Would a PHOSITA understand how to make & use the invention based on this disclosure? Would a PHOSITA have found this invention obvious?

The question for me is how to trap this fantastic being and make him real for my students. How do you explain a legal fiction without exposing that there is no Tooth Fairy? Once the word "fiction" comes out, students understand that this is something we have "made up" and therefore presume it is not meaningful. Even if they can get over that the most important person at the table is not real, they still do not know how he factors into the equation - especially since we don't know who he is (and in patent law, he is likely to be unlike any of us). So how do you bring your legal fiction into reality?

(Image Source: The Lady and the Unicorn, Wikicommons)

Posted by Kristen_Osenga at 12:50 PM | Comments (5) | TrackBack

Obama and Technology

As many of you know, President-elect Obama plans on having a Chief Technology Officer position in his administration. Many moons ago I tried to track down the tech policies of the various candidates. At that time only Ron Paul had one (yes it really was that early in the campaign). Luckily over the course of the campaign season, other pieced together the candidate's positions. And now we even have Obama's policy paper available.

The folks over at Freedom to Tinker have a nice analysis of the paper. And the paper that Tinkerers David Robinson, Harlan Yu, Bill Zeller, and Ed Felten wrote, Government Data and the Invisible Hand seems to match at least part of the Obama technology platform. Still the paper argues that the ideas and problems regarding putting government information online are old. The crucial matter is how it one puts the information on line.

The NPR interview talks about "best of breed of technology" and "working with private tech firms" to import "the best applications to run federal government" and making the government more transparent. It plays a clip from Obama's speech to Google where he states that a universally accessible format for information will be used. So, what does that all mean? I am not sure. In the happiest of worlds, the administration is taking its cue from the Paper. But given the language of "best applications" and private tech firms, one should not be surprised that tech firms will try to be the provider of choice to the government. That point returns us to the paper.

As it argues:

In order for public data to benefit from the same innovation and dynamism that characterize private parties' use of the Internet, the federal government must reimagine its role as an information provider. Rather than struggling, as it currently does, to design sites that meet each end-user need, it should focus on creating a simple, reliable and publicly accessible infrastructure that "exposes" the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data. The best way to ensure that the government allows private parties to compete on equal terms in the provision of government data is to require that federal websites themselves use the same open systems for accessing the underlying data as they make available to the public at large.

For all I know, Obama's people are talking to the folks who wrote the paper. If so, great. If not, they should.

As a side note I hope the Freedom to Tinker folks don't mind the Tinkerer moniker. It is a nod to an old Economist article. Nonetheless, if you all reject the name, give a shout and I will get rid of it.

Posted by Deven_Desai at 08:20 PM | Comments (0) | TrackBack

Dramatic Reading of Judicial Opinions

Maybe out of fear that my students won't find patent law as fantastic as I do, I make a point of telling them at the beginning of the semester that reading patent cases can be fun, exciting, and dramatic. I imagine they generally roll their eyes - although I try not to look. Their disbelief becomes palpable when I follow up by suggesting that they read the cases out loud. I know they won't, but eventually we get to some point in the semester, when I jump up on a table (figuratively) and throw out my hand in a very Hamlet-esque, "Alas poor Yorick" pose (literally) and provide a dramatic reading of the more amusing portions of the day's cases...

From the Phillips case:

What we have wrought, instead, is the substitution of a black box, as it so pejoratively has been said of the jury, with the black hole of this court. Out of this void we emit 'legal' pronouncements by way of 'interpretive necromancy'; these rulings resemble reality, if at all, only by chance.

Eloquent words can mask much mischief. The court's opinion today is akin to rearranging the deck chairs on the Titanic--the orchestra is playing as if nothing is amiss, but the ship is still heading for Davey Jones' locker.

And some more...
From Eli Lilly: "Rather than attempting to distill an elixir from this intoxicating witches brew of enactment history, this court should interpret "material change" consistent with the overriding purpose of the Act."

From Bilski: "Natural laws and phenomena can never qualify for patent protection because they cannot be invented at all. After all, God or Allah or Javeh or Vishnu or the Great Spirit provided these laws and phenomena as humanity's common heritage."

From Festo: "Like the proverbial balloon, a pinch on this backside of the law disrupts symmetry on the front side."

From the perspective of a professor, I find these tidbits great. The students seem to be amused and start reading the cases carefully, looking for my next outburst. At least in my mind, it helps make patent law fun. But, then again, I'm biased.

But as a legal scholar and a language junkie, I'm not sure the value. Are the judges responsible simply frustrated creative writers? Are these excerpts supposed to function as rhetorical devices, and if so, are they effective? Or do they instead distract from the point that the author is trying to make? Is it too cute? Too inflammatory? Too obscure? Are we better off because the judges exhibit some creativity and personality, or would a plain explication of the law be more appropriate? And as a broader question - what is a "good" judicial opinion, not from a legal perspective but rather from linguistics and literature standards?

Posted by Kristen_Osenga at 01:57 PM | Comments (1) | TrackBack

Intellectual Property Colloquium Podcast

Professor Doug Lichtman (UCLA Law School) has launched a new podcast called the "Intellectual Property Colloquium." The podcasts consist of discussions between Doug the guests, and they last about an hour. Lawyers who listen to them can obtain CLE credit.

The first podcast was with guest Fred Von Lohmann of the Electronic Frontier Foundation on copyright law. Upcoming shows include Stacy Byrnes (NBC Universal) and Professor Tim Wu (Columbia Law School) on DMCA notice-and-takedown, Ed Felten (Princeton University) and Dean Marks (Warner Brothers) on DRM, and me on privacy and social networks. My podcast will be recorded soon and will be posted sometime around the end of November.

Posted by Daniel Solove at 11:03 AM | Comments (1) | TrackBack

Bilski and the Drivers of Patent Law

The Federal Circuit's en banc opinion in Bilski is shaking up patent law with respect to business method patents. Some commentators suggest that Bilski does away with business method patents. Others suggest that clever claim drafting will circumvent most of the restrictions imposed by the opinion. In many fields not directly addressed in the opinion, including biotechnology, there is considerable uncertainty about what the opinion means.

I think the "who the [expletive deleted] knows" crowd is right. The majority's "machine-or-transformation" test seems ill-suited to an age of digital and biological machines. Is a biological "DNA nanocomputer" a machine? If so, why is a human mind that comprehends a business method not also a "machine?"

In any event, an interesting dynamic underlying the various concurrences and dissents is how different members of the Federal Circuit view the primary drivers of patent law. Some of the judges seem to emphasize legislative history; others, Supreme Court precedent; and others, technological change. This chart summarizes how I think this dynamic plays out in the various opinions:

Posted by David_Opderbeck at 04:18 PM | Comments (0) | TrackBack

Landmark Patent Damage Awards?

Thanks for this opportunity to blog here at Concurring Opinions. On the eve of the Presidential election, I'd like to start with something that's surely high on everyone's priority list: patent reform. Well ok, it might not rank up there with the economy and the war, but some of us find it interesting.

Much of the debate about patent reform focuses on two related concerns: (a) the size of awards, particularly for "component" patents; and (b) non-practicing entities or "patent trolls." This post discusses recent "landmark" awards that are often cited as examples of a system that is spinning out of control.

A recent PriceWaterHouseCoopers study widely cited by reform advocates suggests an alarming trend towards $100 million-plus verdicts in recent years. A closer look at the PwC study, however, suggests that things might not be so dire as reform advocates suggest. In fact, most of these "landmark" cases were extraordinarily complex, long running disputes by fierce market competitors involving multiple patents and other claims.

For example, the $133 million patent verdict in favor of Rambus, Inc. against rival memory and chip maker Hynix, Inc. was part of a corporate war that involves 59 claims from 14 Rambus patents as well as antitrust and other claims. Similarly, the Alcon v. Advanced Medical Optics $121 million verdict was awarded in one of four patent infringement cases brought by Advanced Medical against Alcon, leading competitors in the medical device and pharmaceutical products industry. The dispute eventually was settled in a package deal for a lump-sum payment by Alcon of $121 million.

In some of the cases, the post-trial and appellate processes changed the result. The largest and most discussed award, a $1.5 million jury verdict against Microsoft in favor of Alcatel-Lucent on a patent relating to MP3 audio technology, was overturned by the trial court on post-trial motions. And in Verizon v. Vonage, the federal circuit vacated the judgment of infringement with respect to one of the three patents in suit based on an erroneous claim construction, and vacated the damage award entirely, because the jury did not allocate the award among the three different patents. The Federal Circuit also vacated the finding of infringement, and therefore the $115 million damage award, in Finisar v. Directv. Thus, three out of the six $100 million-plus damage awards from 2005 to 2007 involving the computer and telecommunications industries were overturned.

My verdict: the rhetoric about runaway patent verdicts is overblown.

Posted by David_Opderbeck at 12:44 PM | Comments (0) | TrackBack

Yes, sir - very atomic!

First, let me say thank you to the folks at Concurring Opinions for giving me this opportunity to guest blog. I'm looking forward to sharing some ideas I have on law, language, patents, and science. But first, I want to talk about a really awful movie.

This weekend, I got to thinking about an old musical/cult film I had seen in college - "The 5,000 Fingers of Dr. T." The 1953 movie is most noted for being the only feature film written by Dr. Seuss (Theodor Geisel), who also wrote the music lyrics. Quick summary of the plot - Bart is a little boy who is being forced to take piano lessons from Dr. Terwilliker. Bart hates the lessons and complains to everyone - including the friendly neighborhood plumber. Bart falls asleep and enters a fantasy world (very Wizard of Oz) where his piano teacher has become a madman. The piano teacher has imprisoned all non-piano-playing musicians and has built a piano so large it must be played by 500 little boys that the piano teacher has enslaved (including Bart). Bart tries to escape and seeks the help of the plumber, who happens to be installing sinks in the piano teacher's institute. Working together, they build a device from the junk they have in their pockets (very MacGyver) that sucks all the noise from the giant piano. The little boys escape and the world is a better place.

So why was I thinking about this movie?

After Bart and the plumber build their fantastic device to suck noise from the giant piano, they encounter the piano teacher. The piano teacher looks fearfully at the device and asks, "Is it atomic?" Bart answers, "Yes, sir - VERY atomic!"

Sometimes it seems that courts view new inventions in precisely the same way - they are scary. And new inventions are scary for the same reasons that "atomic devices" are scary: we've never seen anything like them before; we don't understand them; we've heard people say bad things about them; and we've been told that these new inventions can ruin our life. And so, as I was reading through the Bilski case this weekend, where the en banc Federal Circuit considered patent eligibility for business method patents, I couldn't help but think of Bart and Dr. T.

While there may be many very good reasons to deny the patent in that particular case, I think the court is reacting in the way it did because business methods are scary. Although business method patents were deemed eligible for patenting ten years ago in the State Street case, the true flood of issued business method patents has just now become a reality; the court hasn't, before now, had the chance to truly see them. And the court doesn't understand them. The test resulting from Bilski requires a process to either be tied to a particular machine or to transform an article into a different state or thing. But when discussing this transformation in the arena of business methods, the court shows that it doesn't understand the inputs and outputs of the process. It acknowledges that the raw materials of business method processes are often electronic signals and electronically manipulated data; however, based on the Nuijten case, which denied patent eligibility to electronic signals, the court clearly lacks any understanding of these things. Further, the Bilski opinion goes on to call additional inputs and outputs of these methods "abstract concepts." Probably most importantly, the court has heard bad things about business method patents, including how these inventions can ruin industries (and the whole world). A look at the number of amici briefs arguing in support of the Patent Office's rejection of these types of inventions, or even arguing further for a complete bar to the patent eligibility of business method and software patents, demonstrates how widely held is the belief that these inventions are bad.

To be fair, the Bilski opinion does not kill business method patents. Whether it does in practice or whether patent attorneys are clever enough to draft around this latest obstacles is yet to be seen. But I think we need to look more carefully at the underlying fear of the new and whether patents are being denied because inventions are scary.

Posted by Kristen_Osenga at 06:22 AM | Comments (2) | TrackBack

Quick Links on the Google Book Search Deal

Having suggested some conditions for the coming digital library of Alexandria, I should have commented on this Google deal earlier. But I've been way too busy to read the details in the proposed settlement. No one can doubt its importance--as Mike Madison has said, we may be "seeing the early stages of the beginning of the end of copyright law as we know it." Google's side of the story can be found here, and I look forward to reading their and the Authors' Guild account of it. For now, I'm worried by Harvard's decision to criticize the deal and back out of Book Search:

“As we understand it, the settlement contains too many potential limitations on access to and use of the books by members of the higher-education community and by patrons of public libraries,” Harvard’s university-library director, Robert C. Darnton, wrote in a letter to the library staff. He noted that “the settlement provides no assurance that the prices charged for access will be reasonable, especially since the subscription services will have no real competitors [and] the scope of access to the digitized books is in various ways both limited and uncertain.” . . . . “For now,” the statement concluded, “the Harvard University Library will continue to explore other ways to open up its collections more broadly for the common good.”

I had thought that legislation would be an ideal way to assure that Google's aspirations here best served the public interest--and that there would be a long time to think about how to do that well (for example, the Copyright Act of 1976 evolved over at least 16 years). But it now appears that this settlement may govern the dominant means of digital access to and distribution of books for a very long time--and that those who care about these issues will have to organize quickly if they want any input.

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Now That Is Open Source

According to AP, some professors are about to post medical records and "the DNA sequence of about one-fifth of their genes on the Web." The goal is stimulate the ability to have less expensive and easier ways to have personal genome sequencing. The project is called appropriately enough, Personal Genome Project. Professor George Church of Harvard is the founder and principal investigator. The project wants to have 100,000 participants and has passed Harvard's ethical review board.

A choice quote from the article

I believe that there's a great advantage to each of us knowing our sequences, but it is also to me inconceivable that absolute genetic privacy will be maintained," said Stanley Lapidus, chairman and CEO of Helicos BioSciences Corp.

may be accurate. The whole thing may be a precursor to a Gattaca world (possibly the best underrated film of 1997) but the article suggests that the Genetic Information Nondiscrimination Act will help protect us from the possible downsides of such information being more public. Insofar as it really prevents descrimination by employers and insurers based on genetic information, it may. Indeed, one might argue that this information requires national health care because no private company would honestly be able to provide health care and not discriminate once this information is available.

Beyond private companies, however, I wonder whether we as individuals will be able to make decisions without considering potential health issues or predispositions. Not that such concerns should stop the research. Rather it seems that a sort of genetic dowry could be part of the mating process. It arguably happens already but it could happen with more precision. The film has a great moment when Ethan Hawke's character refuses to test Uma Thurman's hair and see her genetic code. Of course that may be because he knew he was flawed and did not pass muster, or because the message of the film was that we are more than our genetic code.

Image source: WikiCommons

Posted by Deven_Desai at 01:12 AM | Comments (1) | TrackBack

Siebren Versteeg's Infinite Touchscreens

I had a good afternoon of gallery-hopping today, checking out some of Casey Ruble's fantastic series "Except in Struggle" and Simon Nicholas's eerie crowds. For IP and computer experts, Siebren Versteeg's work raises a number of fascinating questions.

One of the pieces at Versteeg's current show is New York Windows, a pair of large touch screens that are much like the screen of an iPod (it's the image at right). You're encouraged to touch them and drag the images displayed on them to the center, and then off or back on the screen. The docent for the tour said the images are generated randomly by a computer program that scrapes pictures off the web, then alters their composite display with various graffiti-like "sprayed on" pixels. One of the people in line to try it called it "art for the ADD generation"--and indeed, if any set of images bored you, you could simply drag them off and find new ones. According to the docent, the displays show merely one bit of a digital "canvas" that is thousands of yards long and wide.

Versteeg's work reminded me of the TV shows "Talk Soup" and "Best Week Ever," two programs that aggregate the "best-worst" moments of television and celebrity culture each week. I think of these shows as "centripetal aggregators" in an era of entertainment-option overload. Few people may settle upon the same shows given the "daily me" offered via narrowcasting and specialized niches. But the centripetal aggregators can filter out the overflow of banality and dreck now on TV and offer us glimpses of guaranteed entertainment.

Versteeg is more a centrifugal aggregator, giving us each control over the screen as we come upon it. Each visitor to the gallery may come away remembering different images--for me, a cartoon emblazoned with "all rights reserved" and a very fluffy kitten imprinted. As Heraclitus might say: "For the waking there is one world, and it is common; but sleepers turn aside each one into a world of his own." Infinite images, infinite playlists--in life online, everything is miscellaneous.

Cross-posted: Madisonian.net.

Posted by Frank_Pasquale at 08:59 PM | Comments (2) | TrackBack

Pro and Con on the PRO-IP Act

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Doctorow’s Discontent with Content

Readers of this blog know that I am a fan of Cory Doctorow’s work. In addition to his fiction, Cory writes nonfiction. His main topics are technology, creativity, copyright, and the future of the future. I know this because I read his work and his latest book, ©ontent, gathers his thoughts on these topics and says so right on the cover. Ah it is so easy. Maybe too easy. Deceptively easy. And that is also Cory’s gift.

©ontent sings. From the opening where Cory tells Microsoft’s Research Group why DRM is foolish to his thoughts on protecting artists to his views on the information economy to his idea that giving away his work is the best thing he can do, Cory offers detailed yet accessible arguments about the way technology, creativity, copyright will affect the future of the future. The essays span several years of writing. Cory makes bold claims about DRM and the market. He presents a rallying call for the United States to keep pace with the changes in information economy lest the rest of the world surpass us. Reading the essays provides insight about his ideas and how they evolved. Remember Cory writes for Boing, Boing, writes science fiction, lectures, and more. His livelihood is at stake here.

Now I can’t say I agree with everything Cory says, but I think what he says merits consideration. Sure, he is in a rarefied world. Maybe he can give away work and still make money. Maybe he is just an evangelist and should be distrusted on those grounds. Then again, read the book. Cory identifies real changes in how our creative system operates and the way in which adherence to the old one could harm us. The last essays grapple with the problems of security and control. They present the possibilities that await us. And that is the point. Cory is speaking of possibility. As he says “We choose the future we want to live in.” ©ontent helps us understand what that future could be and how to have a say in it.

Posted by Deven_Desai at 01:40 PM | Comments (0) | TrackBack

Perfect Albums

Album, the word may evoke a creaky, leather-vinyl, cardboard tome with faded Polaroids, instamatics, and school portraits. It may remind one of a black gold-based vinyl disc spinning at 33 1/3 revolutions per minute. It does not always remind one of a smaller, shiny disc full of digits unleashed by a laser. But all are albums; they are collections which is what the word means. So even a playlist is an album. For me music is a vital part of the word album. As many know the music industry continues to die a slow death. The single has returned with a vengeance. Pushing eight or more songs in conjunction with the one or two songs a consumer wanted is harder to do. Some might argue that most of those songs were crap anyway, and they are often correct. Still, there are albums, concept albums, that defied this model. Those albums were works of art. The musicians took you somewhere as they told a story. The Beatles and Pink Floyd leap to mind as strong examples of this approach across several albums. In jazz Miles Davis did quite well. More recently, The Smashing Pumpkins’ Mellon Collie and the Infinite Sadness is quite good.

So here is my question: who else has created a true concept album? Put differently who else has created a perfect album which means you rarely, if ever, skip a song when listening to the album? I am sure there are recent examples and I have missed them. In addition, I am sure that there are older ones I have missed.

Here are some of mine; please share yours:

Abbey Road, The Beatles
Wish You Were Here, Pink Floyd
Kind of Blue, Miles Davis
Hounds of Love, Kate Bush
So, Peter Gabriel
Aja, Steel Dan
Nighthawks at the Diner, Tom Waits
Hotel California, The Eagles
Sea Change, Beck (another close call that I may revise)
The Flat Earth, Thomas Dolby (odd one, requires several listens to see how the less known songs make sense)

Posted by Deven_Desai at 12:45 PM | Comments (34) | TrackBack

Why This Profession Is Great a.k.a. Thank You Tulane and WIP IP

I just returned from the Works In Progress Intellectual Property Conference at Tulane. It was excellent. The IP crowd never fails to satisfy across a range of metrics from panel comments to individual feedback to dinner conversation about scifi, fantasy, film, and more. Glynn Lunney, Elizabeth Townsend-Gard, and Tulane were our gracious hosts and I’d like to say thank you, thank you, thank you. As Mike Madison once put it, these types of conferences get you jazzed up (he said that at Peter Yu’s winterfest). Add being in New Orleans and the description is even more apt. Just being around folks who love their work and want to help each other with constructive comments feeds the academic soul. So to all the junior folks out there, find a way to present your work. Internal presentations, works-in-progress conferences, street corners (O.K. maybe not), wherever you can present your ideas; do so. The talk forces you to distill the paper into a coherent whole. Just practicing the talk reveals flaws or problems in logic or places needing support. It is challenging and can be tough, but sharing your ideas usually leads to more good than bad results especially if you feed the system by reading your colleague’s work and share your thoughts with them. The joy of the give-take-give, give-take-give, give-take-give is contagious.

It may be that finding such a great venue is difficult. Now, I am not saying that no other area has such conferences (my guess is they do and I do not know about them, in which case share the names please). Still I know a few folks who have said they admire the way WIP IP and similar conferences operate but have not found analogs in their field. Solution: Just do it. Find a few peers and start a small workshop. Maybe it will start a wave of open workshops and conferences where junior and senior faculty mix it up. One warning: If you build it, it will grow. I would place a fairly large bet on that. Just look at the history of WIP IP. Glynn Lunney and Michael Meurer created the conference in 2003. The idea was to emulate a "protocol that was common in the field of economics, but relatively unknown in the field of law at the time. Specifically, rather than invite speakers and request presentations related to a specific topic within the field of intellectual property, the WIP IP Colloquium allows any scholar working in the field of intellectual property to present their current research projects in order to obtain feedback on their work." As I understand it, attendance has grown significantly since the conference's inception. Similar IP conferences such as IPSC, which Depaul, Cardozo, Berkeley, and Stanford host, and Peter Yu’s IP Roundtable are excellent examples of the way these conferences begin and evolve. Take a look. You may find a model to copy or come up with a new variation for your field. For that matter, you may come up with a model for others to follow. Either way it will be worth the effort.

So, again, many thanks to those who took the time to build these conferences and offer opportunities for us. It is an honor to be part of this group.

Posted by Deven_Desai at 11:17 AM | Comments (4) | TrackBack

False Advertisements of Myself

I just heard about a Jezebel post on Redbook's photoshopped transformation of Faith Hill--from an ordinarily attractive person to a cookie-cutter replica of a surgically bedizened Hollywood star. Jezebel called the retouching one more example of the "'cover lie' of a medium that has made its mark by invalidating women's strengths, hopes and dreams with an endless parade of stories on how to be thinner, sexier, [and] trendier. . . ." We're facing an epidemic of faked photos, setting ever higher standards of appearance for those unlucky enough to be seduced by the media's