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Marvel-ous I came across such a case only this week. It involves the world-famous ‘Marvel’ comics brand who own the copyright and/or Trade Marks for characters such as Spider-Man, Superman, The Incredible Hulk and The X-Men (all of which adds up a considerable chunk of 20th Century youth culture). All very well and good you might think. But the age of the internet threatens interests way beyond that of the music industry. It isn’t just music that can swapped around via home computer but also images and, in this case, animated images are the source of the trouble. While it is pretty much a closed book to me, I know a number of people who are heavily involved in the whole sub-culture of online war gaming. One of the places on the internet where they and others can indulge this hobby is called ‘City of Heroes’ where participants can create their own 2-dimensional comic book heroes to do battle with a host of equally 2-D creepies, nasties and villains. Apparently, this seemingly harmless diversion threatened the interests of Marvel who filed suit against the owners of ‘City of Heroes’ claiming infringement of copyright and Trade Mark. The case has settled amicably and it appears that both parties with live to fight another day. But what bothers me somewhat about the case is that nowhere is there any allegation that Marvel’s characters were actually copied, merely an allegation that the game’s facilities enabled participants to copy some or all of Marvel’s characters. Since the case has settled there is no need for me to dwell on it but, as a general principle, I am deeply uncomfortable with the idea of ‘potential’ infringement. The law should deal with actual or attempted infringement. Having said that, the other reason for commenting on this subject
is that enables me to wallow for a short while in the precious memories
of childhood. Going for a song This is why the licensing of music can be such a long-winded and complicated business – all these different parties interests have to be taken into account. It also explains why the internet ‘music wars’ are not yet over. Having fought (with some degree of success) against illegal music copying over the net, the music industry is now turning its sights on the far less conspicuous problem of websites offering unlicensed song scores and lyrics. At first instance, this may appear to be grotesquely petty and vindictive but, in fact, the industry does have a case. Copying lyrics or a song score without the owner’s permission is the same as copying a newspaper article or a section of book without the owner’s permission. But does this copying actually do the owners any harm? Well, according the Music Publisher’s Association the answer is yes and they are even making sinister demands for jail sentences in the quest to put a stop to all this. Naturally, this has rather alarmed the owners of sites such as ‘TabHall’ (which offers downloadable scores and lyrics to songs) and ‘PearLyrics’ (which provides a mean for searching the internet for lyrics to songs). In fact, the latter is on the verge of being driven out of business. I rather doubt that anyone will have to endure a custodial sentence
over this but battle has clearly been enjoined here and I expect
that the music industry will not back down until it has at least
drawn some blood. Balancing acts Indeed. Behind all the cheerful optimism and youthful energy of ‘Pop Idol’ (the TV audition show for young pop star wannabes) a very serious bit of business has been going on. IP business, actually. Like all successful formats, Pop Idol inspired others to try to emulate its success, the most famous being ‘The X Factor’. But at what point does inspiration or influence become outright copying? The answer is that there is no answer and, to the extent that it can be judged at all, it has to be judged on the facts on a case-by-case basis. However, judgements are sometimes required, as in this case, when the producers of Pop Idol sued the producers of The X Factor for copyright infringement. The case was finally settled last week with, it appears, everybody getting a bit of what they wanted but not everything they wanted. That is often the way when there is so much at stake. So I suspect that both the above noisy audition shows will be paraded on our TV screens for some time to come. Depending on one’s taste that is either a curse or a blessing. By coincidence, I was discussing this case with somebody for whom it is all a curse. “What an insult”, he said. “This isn’t about law or justice. This is just a lot of people squabbling over their spoils”. An interesting perspective I thought but I disagree that this is not about law or justice. Wherever you have any property rights at all, you are going to get massive squabbles between wealthy protagonists over just what belongs to whom and so on. The product may seem (and indeed may intentionally appear) frivolous
but the right to profit from it is deadly serious and should be. It's an Amazon world For many (even some people who are generally supportive of IP rights) the very notion of being able to monopolise a method of online shopping stands out a brazen absurdity. Well, the bad news for those people is that Amazon’s patent still stands and, indeed, Amazon has just successfully defended a claim from a company called ‘IXPL Holdings’ that the 1-click shopping patent infringed their own patent. But wait, for that is only the appetiser before the main course. As if Amazon didn’t already have some exceedingly valuable internet estate, they have now been granted three more patents covering (in no particular order) a system of obtaining consumer reviews, search query processing and something called ‘Computer services for assisting users in locating and evaluating items in an electronic catalogue based on actions performed by members of specific user communities’. It also seems as if these patents have been granted over considerable disquiet about the fact that the various techniques involved are already close to ubiquitous on commercial and social websites all over the net. But we have heard all this before, have we not? Whatever the moans and grumbles, the law has come down on the side of Amazon and, in doing so, has handed them a large chunk of the operative high-ground of the internet. Will this prove to be a good or a bad thing? As someone who believes
that everything should be owned (and, as a corollary, problems are
exacerbated by insufficient ownership) I lean towards it being a
good thing. So what if Amazon gorge themselves on immense profits?
Those profits will still be dependent on them continuing to supply
good value to their customers. That’s the thing about ownership.
It brings with it responsibility. Back to the drawing board, Sony See, they probably thought that making a Compact Disc with a built in anti-piracy mechanism was such a splendiferous idea that they would bask in its glory for years to come. Wrong. Now, bear with me here, gentle readers, for this story involves all manner of whiz-bang technical stuff that flies way above my humble head but it transpired that the anti-piracy mechanism in the CDs also (and inadvertently I presume) allowed hackers and other assorted nasties to access the hapless consumer’s computer. The resulting (and understandable) public furore has forced Sony to withdraw the product from circulation not to mention tuck in to a generous helping of Humble Pie. Well, they certainly won’t try that particular trick again. But will others? Are there other manufacturers tinkering around with less disastrous anti-copying mechanisms? I have no idea but, in a tangentially related story, it seems that ‘iTunes’ has become the number one online music service in Japan and is going great guns elsewhere. Is there a lesson here for the Sonys of this world? Might it be that consumers, wary of CDs with potentially damaging features, turn to licensed download services in such exponentially increasing numbers that the very idea of selling pre-recorded CDs becomes anachronistic? Could it be that the long term and secure answer to internet music piracy lies in the internet itself? And just how deliciously ironic would it be if that turns out to be the case? Yes, I know, this is all very ‘blue sky’ stuff and, as with all
seemingly blue skies, there are probably some dark clouds lurking
about somewhere over the horizon. Groskter is dead. Long Live Grokster.
Only Grokster hasn’t actually died at all. In fact, and rather like a caterpillar, it is merely entering the pupa stage before it emerges as a beautiful and wholly legitimate butterfly. In a classic case of poacher-turned-gamekeeper, Grokster has struck a deal with the music industry whereby its file-sharing site will be closed and new site will be opened with the help of said industry and which will offer consumers legitimate downloads along the ‘walled garden’ lines of other similar dealmakers such as PlayLouder and Mashboxx. What we are seeing here is pretty much the end of an era. This is not to say that illegal copying will no longer happen. A certain amount is all but unavoidable and I would imagine that the music industry players will simply make an allowance in their balance sheets for what is euphemistically referred to as ‘leakage’. However, it does appear that the big, headline, culture-shift players in the illegal P2P have descended quite rapidly into comfortable middle-age and maturity, preferring instead to do potentially lucrative deals rather than blaze yahoo, anarchic trails into cyberspace. And, to be fair to the music industry moguls, they have also seen the sense of coming to terms with the new distribution networks rather than trying to lobby them out of existence. Grokster’s new service will, apparently, be ready
to launch before the end of this year. Armistice has now been
declared after a long and noisy war. Now we can all reap the dividends
of peace. For a while anyway? Have we lost the plot?
And as if film-making were not already a quagmire full of copyright bear-traps, said film-makers may now have to contend with patents as well. Yes, you read that correctly. American Patent Agent, Andrew Knight has come up with the rather ingenious, but potentially disturbing, idea of ‘plot patents’, i.e. obtaining patent protection for the plot of a movie. At first sight this appears to be nothing short of absurd. After all, what is wrong with the protection afforded by the law of copyright? And how come that something which clearly qualifies as an artistic creation can possibly be construed as an invention with functionality? Undeterred, Mr. Knight has made application to the US Patent Office for a ‘plot patent’ for his movie idea ‘The Zombie Stare’. Knowing the rather liberal approach of the US Patent Office it would not surprise me in the least if he succeeded. Before you condemn the brazen chutzpah of the man, it is worth noting that eminent US legal opinion appears to back up his claim. According to a Professor of Law at Georgetown University, “The case law of the Court of Appeals for the Federal Circuit has established that virtually any subject matter is potentially patentable,” If this entrepreneurial trail-blazer succeeds in his quest then he will certainly not be the last such applicant. He will have carved out a bandwagon upon which many others can be expected to jump. And, yes, I can hear the anguished cries from the anti-IP lobby even as I type these words. So patent-protected movie plots. Who, apart from Mr. Knight,
would ever have thought of such a thing? The ideas market
The article is far too long to discuss in any detail here (and anyone with any interest in the sector should read it) but the general gist of the piece is that while intellectual property law may seem unfair or illogical to many, it is nonetheless crucial to the balance sheets of many an enterprise. There are also some highly illuminating facts in the article. For example, did you know that IBM earns over $1 billion annually from its intellectual property portfolio? Or that the technology licensing revenue in the USA alone comes to $45 billion and, worldwide, over $100 billion? The writer also makes the important (if obvious point) that IP protection, licensing and enforcement is legal minefield. Certainly any professional working in the area will confirm that IP law is a jungle compared to which the Amazon basin is a neatly manicured garden. But, given its importance in Western economies, is that surprising? Any sector replete with huge rewards is bound to be peppered with the most dangerous and costly bear-traps. For me, the most significant line of the article is the quote from Alan Greenspan, the Chairman of America’s Federal Reserve who said: “The economic product of the United States has become predominantly conceptual”. My guess is that that is true for much of the rest of the developed world as well now that most of the traditional ‘smokestack’ industries have moved to Asia. But it is precisely because of this gradual revolution that IP has become such a high profile issue. There is surely a great study (and maybe even a book or two)
to be made out of a thoughtful analysis of the development of IP
law in the context of these grand, sweeping social, demographic
and economic shifts. I only wish I had the time to embark on such
a project. Books are the new rock 'n' roll
Was it really only a mere four weeks ago that I wrote about Google’s bold initiative to put extracts from literary works on-line? Yes, indeed it was. Well, the big publishers must have gotten wind of this and gone scuttling off to their lawyers without stopping for lunch because it was only last week that the Association of American Publishers announced that they are planning to sue Google for alleged copyright infringement. I must say that this has taken me a little by surprise and not just because of the speed of the legal action. Rather, I am struggling to understand why the Publishers Association has chosen to act with such haste and vigour? Maybe it is just a way to gain the tactical upper hand on what is sure to be a drawn-out battle to come. Also, professional bodies (being answerable to their members and all that) have a tendency to want to be seen as responsive and aggressive in defending their member’s interests. I also have to admit that I wasn’t expecting the book publishing industry to be quite as net-phobic as their counterparts in the music industry and maybe they won’t be. However, from this vantage point, this does have the ring of the ‘RIAA .vs. Napster’ saga. Google still maintain that they only ever planned to publish extracts from texts on-line and that these would act as marketing leads for the real thing. I tend toward the view that the idea has merit but, I suppose, the arguments may rest on just how much text the said ‘extracts’ amount to. I believe that this will settle in due course and that the
book publishing industry will come to terms with the digital age
in some way. But there is clearly going to be some blood spilt on
that road. Just browsing For some years Microsoft has been embroiled in a protracted IP litigation with a little-known company called ‘Eolas Technologies’. The dispute centres on a browser that is owned by the University of California and licensed to Eolas. In 1999, Eolas and the University of California sued Microsoft claiming that the latter’s globally famous Internet Explorer breached their patent right. In the first instance, they won and were awarded damages to the tune of 520 million US Dollars. Typically, though, Microsoft appealed and were given leave to go on distributing IE pending the appeal. The Empire then struck back, claiming that the Eolas/University of California patent should not have been granted in the first place because it claimed as property knowledge that was already in the public domain. Even luminaries such as Tim Berners-Lee got involved in the brouhaha. Now the issue appears to have been settled. The US Patent Office has re-examined the original patent and found it to be valid. Or is it settled? Microsoft has, again, refused to take this lying down and appears ready to battle on. In the meantime, some anti-IP organisations are crowing because they sense that, having been stung by IP laws, the computing behemoth will be forced to revisit its own policies on IP law. One campaigner says, “Microsoft isn't quite ready yet to support our cause directly, but that might change after several more Eolas cases…". I wouldn’t hold my breath. The problems of line drawing
In what appears to be a gallant attempt to champion the rights of the little guy, the NCC has called on the European Commission to adopt a less draconian stance when it comes to enforcing IP laws against individual consumers, i.e. people who may make an illegal copy of a CD to play in their car as contrasted with people who make loads of illegal copies of a CD for mass distribution. The proposition is not entirely without merit. Indeed, it bears some degree of emotional and even ethical appeal. Even the most fervent pro-IP activist would readily concede that there is a big difference between the lowly consumer who simply makes a back-up copy of a CD they love and a gang of professional counterfeiters ripping, burning and distributing illegal copies on an industrial scale. The fact that this difference would almost certainly be recognised in terms of sentencing is scant comfort to John or Jane Doe who ends up with a criminal conviction for doing something that they (and millions of others) believed to be wholly innocuous. I do think that the current IP regime will be pruned and
tailored over time so as to demark some degree of ‘personal use’
(although that does raise the question of defining the term ‘personal
use’ – a sloppy definition can create more chaos than it cures).
However, and in the meantime, the lowly individual can revel in
their own lowliness knowing that they are difficult to find and
the costs of pursuing them are generally quite disproportionate.
It is for these reasons that, given time, the current IP regime
as it applies to personal use may well become more honoured in the
breach than in the observance. The fonts of all wisdom
For some time font makers, Agfa Monotype has been pursuing a breach of copyright claim against a company called ‘Bitstream’. The claim concerns the latter’s companies software which translates fonts and makes them legible to users without having to download the actual font. The case has now concluded with the result that although their software may be used for illegal copyright theft, Bitstream are not liable and can go on selling their software. Contrast with this outcome, the rather less generous verdict handed down to Grokster earlier this year? Well, it seems that, in the case of Bitstream, the court felt that the legitimate uses of the software far outnumbered the illegal uses and, besides which, Bitstream did not in any way encourage their customers to use the software for illegal purposes. Clear? Well, about as clear as mud. While I am pleased that Bitstream is not about to be litigated out of existence, the cynic in me cannot help but speculate if the lenient approach taken by the court (and in both this and the Grokster case, the claimants were relying on the same provisions of the DMCA) has something to do with money. If there were as much at stake in the font business as there is in the music industry, would Bitstream be allowed to carry on? Who can say for sure? The world of fonts may be prosaic
and unglamorous but sometimes there are advantages to not being
in the limelight. 'Bookworm' get a whole new meaning
But the downside of this apparent security is that can be so much harder for writers to get their name around. Security can also mean obscurity. So, if I was a struggling writer, I think I would quite like the sound of this project. As if Google are not already ubiquitous, they have decided to take a giant leap into the literary world by scanning excerpts from millions of books and then turning all those excerpts into a searchable on-line resource. So are books about to become the new music? Will illegal file-sharers download and swap copies of Stephen King’s latest blockbuster? Well, not according to Google who have assured one and all that their on-line text will represent, at most, only 20% of any given work and, in any event, it will be protected by technology that will make it very difficult to copy. That said, though, ‘difficult’ does not mean impossible and we all know that security mechanisms are a red rag to a geek. So if the text is a mere excerpt and cannot be copied, then what is the point of all this effort? Google claim that it will act as a kind of marketing tool for authors. The public will be offered a taste of what they have to offer and, all being well, will then rush off to their nearest library or bookstore to obtain the whole book legitimately. Predictably, some publishers remain wary that the ‘break-once-run-anywhere’ (BORA) principle might do to them what it has already done to the music industry. The stakes are high but I believe that a lot of authors whose
works are currently gathering dust on library shelves might well
welcome this new window to the world. Razor sharp practices
The supreme villain-elect here is the printer company Lexmark which appears to have based its business model on the time-honoured strategy of “give the razors away for free, then sell them the blades”. What this means is that Lexmark does not make a living by selling printers. They make a living by selling the ink cartridges for the printers (and as the former owner of a Lexmark printer, I can tell you that the cost of keeping it in cartridges is not be sniffed at). One may be forgiven for thinking that this gives Lexmark a licence to print money (if you will forgive the pun). But Lexmark have a problem in that the empty cartridges can be refilled by other companies who will charge the consumer much less than that consumer would pay for a new cartridge. Result: happy consumer, miserable Lexmark. Initially, Lexmark tried to use the Digital Millennium Copyright Act to shut down the refill industry. They failed. So then they resorted to a clever trick of putting the term ‘for single use only’ on all cartridge boxes. The effect of this is to create a contract with the buyer as soon as the buyer opens the box and any attempt thereafter to get the cartridge refilled constitutes a contract violation and a patent infringement. The tactic was litigated but, earlier this month, the US Ninth Circuit ruled in favour of Lexmark. Cue much gnashing of teeth from some people who believe that
this will open the floodgates to all manner of manufacturers who
will ‘sew up’ the market with similar legal devices. Well, they
may try but, by doing so, they will present a perfect market opportunity
to any competitor who decides that there is money to be made by
actually selling razors and giving the blades away for free. They'll be back!
That shape-shifting robot also caused quite a different kind of hubbub that was far brief and, in fact, is still rippling away. At the end of last month, a US Appeals Court in Los Angeles gave leave to an Australian couple to file a lawsuit against the Terminator’s Director James Cameron for copyright infringement. The couple claim that they invented the shape-shifting character in 1987 for a film called “The Minotaur”. They hired a professional scriptwriter who (so it is alleged) then shared his screenplay with Mr. Cameron who (as it is further alleged) picked up on the shape-shifting character and used it to highly profitable effect. Unfortunately, it is not made clear as to whether or not it is alleged that Mr. Cameron copied any part or parts of “The Minotaur” screenplay or whether he simply was inspired (to use the polite term) by the shape-shifter. If the latter, then it seems to me that the claimants could be fighting an uphill battle. How much property can anyone claim in a character as opposed to an original literary work? I don’t expect to know the answer anytime soon. Terminator
2 was made in 1991 and Mr. Cameron’s protagonists are still batting
away trying to land an actual lawsuit on him. How long it will be
before that comes up for trial (assuming it goes that far at all)
is anyone’s guess. Whatever the outcome, there is an amusing kind
of synchronicity here: like the Terminator, this Australian couple
‘absolutely will not stop’. How do you like them, Apple?
And, if that is indeed the case, then no-one will be more delighted than the bosses of Creative who have declared themselves to be waging war against Apple, presumably over the gargantuan market share that the latter enjoys in portable MP3 players. However, winning a legal battle and winning market share are two very different things. There is no shortage of companies (or individuals for that matter) who have been granted Patent rights that turn out to be valueless because nobody wanted to buy the IP protected commodity they were selling. I don’t know whether or not Apple are going to have to pay royalties to Creative Technology and I am sure that it will be a considerable source of chagrin to them if they do. But that doesn’t mean that Creative have come anywhere near to bringing their famous protagonist to its knees. The secret to Apple’s success lies not only in the quality of their products but also in what marketing men call ‘brand recognition’. Hands up all those people who have not heard the word ‘iPod’? Rather like ‘Hoover’, the word has become the generic term for portable MP3 players. Its place in the national lexicon is already secure and I wholly expect it to make its way into the Oxford English Dictionary in due course (and assuming it is isn’t quite there yet). Looking at the Creative website, I see that they have an
MP3 player of their own to sell and, while I am sure it is an excellent
product I do wonder if its buyers will have to put up with people
saying, “oh so you’ve got an iPod now”. That is what Creative are
up against. And then there was light
Back in April of this year, I wrote about the ongoing struggle between the industry and the internet and concluded with the view that everyone was waiting for something big to come along. Well, that something may well have just fetched up in the shape of a company that has ripped up the old-model rule book and penned a new one that may just have some serious legs. The company is called ‘Playlouder who have licensed in music from giants such as SonyBMG and, rather than offer yet another downloading service (how many are there now?) they offer the public a high speed broadband service at more or less the same price as most other providers of such services. The big difference being that Playlouder subscribers can download all that licensed music as a part of the service. Not only that, but once they have downloaded the music they are free to do with it as they please. They can copy it, share it, swap it, burn it, rip it, mix it, blare it, mute it, sing it, dance it, wear it as a hat and even sauté it with a drizzle of olive oil and some sun-dried tomatoes. The record companies still get paid out of Playlouder’s revenues. Voila, happiness all round. Yes, it’s all true. Piracy has finally gone legit. Soon the cutlasses will be beaten into MP3 players and yesterday’s outcasts and renegades will come in from the cold to a life of respectability and, in some quarters, boredom (“It was more fun when it was illegal”). I think that this is a very exciting and important development
that could shape the future of on-line music by radically transforming
the business model through which it works. Who knows, maybe some
of the record companies will decide to start up their own broadband
services? Will that be a case of gamekeeper-turned-poacher? Do-It-Yourself Enforcement
But this view is not always borne out by the reality. For example, it was only back in June that the Swedish Parliament passed draconian anti-piracy legislation aimed at putting a stop to illegal file-sharing over the internet. Cue visions of squads of Swedish coppers barging their way into the pokey loft apartments of nerdy file-sharers and clapping them in irons. Surely a scary enough vista to put a swift halt to all file-sharing in the land? Well, no, because it appears, in fact, that the new laws are having no effect whatsoever on the level of file-sharing and Swedish file-swappers have responded to the new legislation with a giant, collective shrug. Could this be because it is too soon for the Swedish authorities to get their act together? Or could it be because the file-swappers have (rightly or wrongly) decided that they never will? Does it simply require a couple of high-profile ‘examples’ to be made to frighten everyone into toeing the line? Who knows? But regardless of the most likely explanation, the problem with relying on the mechanisms of the state for enforcement is that the property-owner can find themselves twisting in the wind if the people who control those mechanisms decide that they would best be deployed elsewhere, e.g. who could blame the authorities for taking the view that keeping would-be terrorists from blowing up bits of the transport network to have a somewhat higher priority than EMI’s balance sheet? But there are steps that rights-holders can take themselves
and, not for the first time, Microsoft
is setting an example
which means that anyone downloading updates for the Windows XP operating
system will be required to check whether the software is genuine
or pirated. I suppose this is rather easier for software developers
than for, say, recording artists but it does illustrate the point
that there is nothing to stop rights-holders from thinking outside
of the state police box. Common enough? For those of you who are not familiar with the ‘Creative Commons’ project (and that is probably most people), it is voluntary system of material licensing which enables producers to put their work into the public domain without using traditional copyright protections. The most recent recruit to the ranks of its enemies is one John C. Dvorak who fairly lays into the concept with a steam-driven sledgehammer. According to Mr. Dvorak, Creative Commons licenses to nothing to address the question of rewarding artists for their work (which is true) and nothing which cannot already be achieved by means of established copyright law. He also goes on to accuse ‘Creative Commons’ of being little other than a pretentious totem and even argues that they could do damage by cutting a swathe through the ‘fair use’ doctrine. While some of what Mr. Dvorak says is unarguably true, I still think that he is being rather too harsh and perhaps unnecessarily bilious in his full-frontal attack. For a start, he claims that the ‘fair use’ doctrine allows as much leeway as any Creative Commons licence. However, I cannot agree. The boundaries of what constitutes ‘fair use’ are notoriously vague and elastic, especially in the UK and Europe. Certainly it would permit a whole article to be copied without royalty which is something that any appropriate Creative Commons licence would not allow. I wrote rather approvingly about the Creative Commons project
last
year and I have not yet had cause to revisit my opinion. For
sure, there are big gaps in the system and serious inadequacies
(such as the lack of royalty provision) but, overall, I do still
think that copyright can and, over time, will adapt to the internet
age and while I cannot say that Creative Commons is the answer we
have all been looking for, I do think that it is an interesting
and valuable stage in the evolutionary process that may yet leave
its mark on future (and more successful) developments. Making it stick
But, as always, the time comes to put childish things away and confront the prosaic realities of adulthood, such as those faced by Canadian toy manufacturer, Mega Bloks who make and distribute a product of similar size, type and design. Despite the fact that Lego’s patent on their plastic building bricks expired in 1978, they nonetheless sued Mega Bloks in Canada in 2003, claiming that the design of the little knobs on the top of the bricks (by which means they connect to each other) was Lego’s ‘trademark’. The Canadian court dismissed this argument and I have to say that I think that was the correct decision. However, the Lego Corporation have proved to be as durable as the toy they invented, because after successfully appealing the decision, they have now won in a court in the Netherlands which held that the two products were so alike as to be “indistinguishable” and that may result in “consumer confusion” (assuming that the average 3 year old really cares, mind you). So, for now at least, Mega Bloks have been barred from selling their bricks in Holland but I daresay this saga will run and run. Although I have not had the opportunity to read the Netherlands
court judgement in full, I have some serious reservations about
the ‘trademark’ argument in this case. It is precisely this kind
of decision which provides ammunition to the anti-IP brigade with
their claims that IP rights are harmful to trade. I think that is
quite wrong, but I certainly would not use this case as an illustration. Splitting hairs across a Continent
Let me repeat again here what I said to that gathering: the Directive does not grant patent status to software. As a matter of act, the Patent does not change the substantive law at all. Instead, it refers to ‘computer-implemented inventions’ which are inventions which operate by means of software interacting with hardware. In short, it means ‘functionality’. Software itself cannot be patented either in Europe or anywhere else. Furthermore, the purpose of the Directive was not to establish this patent law, as it is already established across several different jurisdictions. The purpose of the Directive was to harmonise the application procedure through the European Patent Office. The reason for this is that recognition and enforcement is dealt with at national level in Europe and in several different ways. This means that companies wanting to gain protection for their inventions across the Continent have to go to the trouble and expense of making a myriad of separate applications. This is particularly rough on Small and Medium Enterprises (SMEs). In other words, what British politicians are apt to call ‘tidying-up exercises’ really is just a tidying-up exercise. So why would anyone object? What is the big deal? Why all the fuss? And why has the European Parliament unanimously rejected the Directive? Well, for a start (in my view) it’s because a whole lot of people are unable to distinguish the difference between patenting functionality and patenting software and it is the latter to which they object on the basis (they claim) that it will allow the big corporations to claim monopolies over whole swathes of developed software and thus (again, in their view) stifle innovation. But then there are more sophisticated players, such as the ‘Open Source’ movement, which can tell the difference but believe that that the Directive will lead to software patents. For the time being at least, the Directive has been kicked
into touch. But it will be back and it should. The Inside story
But, occasionally, a thorough savaging by the jaws of the legal attack dogs can have unexpected benefits for the bitten. Take the case of an on-line photo processing company called ‘FotoInside’ who were merrily (one assumes) going about their business until the got leapt on by lawyers acting on behalf of Intel. Who knew that the word ‘Inside’ is the trade mark property of the world-famous Intel corporation? Well, the FotoInside people clearly didn’t and, rather than risk a sustained mauling in the courts, they decided that discretion was the better part of valour and opted to change their name to ‘FotoInsight’. But could they have made a fight of it? Intel have a track record of jealously defending their ‘Inside’ trade mark but even their most creative legal advisers are going to have a hard time enforcing it outside the world of computing. ‘PlumbingInside’, for example might work. One the other hand, FotoInside operate on-line so that would probably bring their business activity within the protected scope. But it has not all been bad news for the ‘Foto’ folks. The corporate giant has, probably quite inadvertently, given their smaller-time protagonists a potentially valuable marketing hook. According to a statement from the Foto Managing Director, “Our photo processing company has never had any intention or wish to be associated to an American duopolist”. Ouch! Peddling that line could work wonders for the ‘Foto’
company, especially in Europe where there is a large measure of
cultural hostility to big, American business giants. So, you see,
legal tussles aren’t always totally bad news. But, don’t get me
wrong, I am not suggesting for a moment that anyone deliberately
tries to provoke a situation like this in order to generate some
free ‘David .v. Goliath’ publicity. It can always backfire and there
are easier ways to make a name for yourself. A Big Bang (of sorts)
In a truly landmark ruling the US Supreme Court has held that companies that distribute file-sharing software are liable for any copyright piracy that is conducted by means of that software. Not only does this represent a reversal of previous rulings from the US Appeals Court but it also constitutes an abandonment of the very important principle established in the famous 1984 ’Betamax’ case, i.e. the manufacturers of objects which are used for illegal acts are not liable for those illegal acts provided that the objects which they manufacture can also be used for legitimate purposes. Had it not been for that decision, Americans would not have had VCR’s in their homes and, given that way these laws tend to spread globally, neither would the rest of us. A full text of the ruling can be found here (PDF file). So what does this mean for file-sharing companies, such as Grokster and Morpheus? Well, it does not mean that they have to close up shop and go home but it does mean that, from now, they are going to have to police their own customers to ensure that said customers are not using the file-sharing tools for the purposes of copyright violation: a grim prospect the cost of which may drive them out of business anyway. Unsurprisingly, the music and movie industries are delighted. And why shouldn’t they be? Their lives have just been made a great deal easier as someone else is going to have to do their enforcing for them. I am far from delighted. The idea of blaming the people who
things for the uses to which those things are put is a very bad
one for all sorts of good reasons. More worrying still is that the
principle, having now been firmly established, will be applied to
other areas of commerce and life. Not good. Daggers drawn Apparently Chinese law does not extend protection to ‘virtual property’ but what, precisely, does the term ‘virtual’ mean in this context? Does it simply mean an agglomeration of pixels in some definable shape or pattern? If so, could such a thing qualify as a ‘registered design’? Or, if these two gamers had been American, could the killer have claimed copyright in the image? The world of computer gaming is not beyond the scope of the law as the games themselves certainly qualify for copyright protection (witness the copyright notice at the bottom of the page on the home of the computer game linked to above). But what about individual images? On the face of it, I see no reason why they should not qualify for protection, although I am personally acquainted with many avid gamers who would likely resent the long arm on the law (or the ‘sticky fingers’ as they see it) folding itself around what they consider to be their free-wheeling, anarchic, ‘frontier’ world. So, is ‘virtual property’ merely intellectual property by
another name? And, if it isn’t, perhaps it should be? Or will be?
I daresay we will be revisiting this issue before too long. The
global popularity of computer gaming means that it is highly likely
to become a contentious legal issue at some point in the future.
For some people that may be bad news but I say that it is better
to be suing than stabbing. Don't drink and derive
Three British men have been sentenced to custodial terms ranging from eighteen months to two-and-a-half years for their involvement in a software piracy ring known as ‘drinkordie.com’. These characters specialised in obtaining copyright-protected software from companies such as Microsoft, cracking open the copyright-protection codes and then re-packaging and distributing the hacked, unprotected and stolen software all over the internet. Most famously, it appears, they managed to distribute stolen and unprotected copies of Windows 95 several weeks before its official launch. In my view their sentences are not at all surprising, given the degree of damage that these people inflicted on the software industry. More mysterious is their motivations. From the report linked to above, there appears to be no mention of any money made by the gang. Indeed, it may well be that they did not profit by so much as a penny. After all, how could they charge for stolen software that they were distributing over the internet minus any copyright-protection mechanism? So perhaps they did all this just for the thrill or the challenge? This related article from The Register hints that these conspirators may have seen themselves as ‘Robin Hood’ figures. If so, then I find that very ignoble. I wonder how any of these ‘altruists’ would feel if I or someone else plundered their bank accounts in order to distribute the money to people who I felt were more deserving? Of course, I can only guess at the true motivations of the gang but if they thought that they were striking some blow against ‘big business’ or making some protest about copyright laws, then I am very glad that their project has ended as it has. Anyone who wants to make such points can do so quite clearly and legitimately without stealing. By the way, I note that the drinkordie.com
domain name is up for sale. So perhaps there is someone out there
who can think of more respectable uses for it. The Force may be with you (if you're
not careful) Now I find myself covering this issue again because yet another site has been raided by the Feds. This time the luckless target was a site called Elitetorrents.org and appears to have been using the same ‘bitTorrent’ technology that got the ‘Loki’ people shut down. Allegedly, Elitetorrents.org was permitting or otherwise facilitating the trade in pirate copies of ‘Star Wars III: Revenge of the Sith’ before said blockbuster had actually gone on general release. If that allegation is true, then methinks the Studios should be conducting some manner of internal audit because the pirate copies must be originating somewhere close to home. Meanwhile, over here in the UK, the British owners of this website have been summoned to appear in a Court in New Jersey to answer allegations made by lawyers for the MPAA that their website merely links to bitTorrent hosted illegal content. The two Brits concerned are defending this action on the basis that the technology has perfectly legitimate uses and, besides, linking to it is not an offence under UK law. Clearly, the MPAA and its lawyers have decided to be both
aggressive and pro-active in their approach to illegal movie downloading
(alleged or otherwise). Maybe they have learned from the lessons
of the moguls of the music industry who were almost sunk by illegal
downloading before they summoned the will and resources to start
doing anything about it. It appears as if the movie moguls are determined
to ‘nip this in the bud’ but, in their enthusiasm to enforce their
rights, other questions arise about how far they can go, other people’s
property rights and civil liberties and even questions of cross-border
enforceability. The Painful Vista Legal Club
If your answer is something along the lines of “a whole big mess” then I beg not to differ at all, for that is precisely what this ongoing court case here in London sounds like. The problem all stems from the success of a music album (and subsequent movie) called ‘Buena Vista Social Club’ and which featured the work of several Cuban musicians. The rights to the music are owned by a company called Peer International and they are being sued by a Cuban publishing company called ‘Editora Musical de Cuba’ who claim that they are trying to get a better deal for the Cuban musicians whose work is featured on the album and who were allegedly paid a ‘a few pesos and a drink of rum’ in return for their rights (but the originators of the music have all long since died and are, therefore, not around to give evidence). Peer, in turn, claim that they were paying all due royalties up until the US government embargo on Cuba prevented them from remitting these monies to Cuba. They also argue that they have owned the rights to the music since the 1930’s and that the original contracts were fair and above-board. But, more interestingly, Peer also claim that EMC are merely a front for the Cuban regime, which, far from seeking to enrich the lives of the descendants of these penniless artists, is merely seeking to grab the royalties for the benefit of the Cuban state. I have no idea whether or not this Peer International claim
is true, but if it does turn out to be true then even a communist
government is prepared to recognise the legitimacy of IP rights,
albeit that they may be seeking to monopolise the fruits of those
rights. Blessed are the cheese-makers
But now their living (or this part of it leastways) has been put under threat of extinction because of European Court Ruling to the effect that only feta cheese that is actually made in Greece can be called ‘feta’. If the ruling is upheld it means that Shepherd’s can still make the cheese but they will have to distribute it under another name. The basis for the Court’s ruling are the ‘Protected Designation of Origin’ regulations (PDO) which, on the face of it at least, are designed to protect the unique character of regional foods. The PDO apply (and have been applied) to a huge range of European food and drink products. For example, it is because of the PDO that champagne can only be called ‘champagne’ if it comes from the ‘Champagne’ region of France. Champagne made anywhere else has to be called ‘fizzy wine’ or something. I have severe reservations about the PDO. If a Greek cheese manufacturer had successfully claimed the ‘feta’ trade mark then that would be one thing. However, the idea of automatically assigning de jure trade mark protection to whole nations is quite another. Besides, what if feta cheese had not come from Greece but instead had originated in, say, Yugoslavia? Would we have witnessed the spectacle of the Croats, the Serbs, the Slovenians, the Macedonians and a UN Peacekeeping Force all squabbling furiously over the ‘rights’ to claim the ‘feta’ name? For me, the PDO smacks of old-fashioned protectionism dressed up
in the respectable clothing of IP rights. I see no justification
for giving the Greek nation (or any other nation) exclusive rights
to use a word. Like all property rights, IP rights are best left
in private hands. It's a jungle out there
The blacklist in question here has just been issued by the US Government and it consists of a list of US trading partners whose IP enforcement regime is considered by the US authorities as being not up to scratch. Actually it makes for a quite interesting (and surprising) read. Top of the list, public enemy No.1 and the baddest boy on the block is the Ukraine which, according to the authors of the report, has negligible IP enforcement. The next category (called the ‘Priority Watch List’) consists of decidedly shaky jurisdictions and includes Argentina, Brazil, China, Egypt, India, Indonesia, Israel, Kuwait, Lebanon, Pakistan, the Philippines, Russia, Turkey, and Venezuela. The next category is simply called the ‘Watch List’ and includes the likes of Azerbaijan, Belarus, Bulgaria, Canada, Colombia, Costa Rica, Croatia, Dominican Republic, Ecuador, European Union, Guatemala, Jamaica, Kazakhstan, Latvia, Lithuania, Mexico, Peru, Romania, Saudi Arabia, Tajikistan, Thailand, Turkmenistan, Uzbekistan, and Vietnam. No, that is not a misprint and, yes, that does actually say European Union. Now, the EU can be accused of lots of things (mostly with justification) but slacking on IP enforcement is hardly a failing that springs readily to mind. How on earth did the EU (or Canada for that matter) find itself lumped in with a load of countries where I would be surprised to find a functioning electricity grid let alone an efficient IP regime? Anyway, as far as China is concerned things could be looking
up. In a tangentially related story, it appears that boy scouts
in Hong
Kong are going to be rewarded with merit badges for attending
seminars on the importance of IP laws. I cannot decide whether that
is faintly eccentric or mildly amusing. Both perhaps. French twist The case involves a French gentleman who bought a copy of the Hollywood movie |
