Tuesday, October 31, 2006

Costa Rican online gambling still working

There are 200 gambling websites operating from Costa Rica employing a calculated 10,000 people. There was serious concern that the sites would be seriously affected by the Unlawful Internet Gambling Enforcement Act. I will not be ashamed to admit that I'm considerably worried about the law's impact on Costa Rican economy, but according to sites based on the United States, the law will not affect them.

I've been hoping for Costa Rica to join Antigua's WTO dispute against the United States on online gambling (DS285), but there has been no action yet.

Monday, October 30, 2006

Report urges copyright law reform

The Institute for Public Policy Research has published a report asking for a reform of UK copyright law to accommodate the digital age and the MP3 generation. The problem pointed out in the research is that the UK does not have any private copying provision in its legislation, and there is no broad right such as fair use in the United States. This means that millions of users infringe copyright every day when they rip their CDs and copy them into their iPods.

I count myself as one of those who knowingly infringe copyright law every day, with my iPod, so any calls for reform must be welcome. What good is legislation that is flaunted every single day by commuters everywhere?

Saturday, October 28, 2006

Court of Appeals rules on software patent appeal

The England and Wales Court of Appeal has decided on the case of Aerotel Ltd. v Telco Holdings Ltd & Ors [2006] EWCA Civ 137. This seems to be one of those decisions that splits opinions, or rather, unites them into a negative opinion regardless of the side of the software patent debate in which you stand. I've heard negative comments from both advocates of software patents and critics.

The case deals with two separate appeals and two different patents. First is the Aerotel Appeal with patent number 2,171,877; and Macrossan's Appeal, with patent application number GB0314464.9. The question at stake here is the application of Art. 52 of the European Patent Convention regarding patentable subject matter. The Aerotel patent is for a telephone pre-payment system where a user obtains a code, and their credit amount and code number would be stored in memory in a special exchange. Macrossan's patent is for an automated method of producing the documents necessary to incorporate a company.

The ruling, deliver by Lord Justice Jacob, allows the Aerotel patent, but invalidates Macrossan's application. I have only browsed the decision, but I find the fact that the Macrossan application was not allowed quite heartening, particularly because the case relies heavily on other recent cases to reach this decision, particularly Haliburton v Smith, CFPH's Application and Shoppalotto's.com's Application.

In my opinion, this enhances the latest trend to allow limited patentability of computer implemented inventions, but not allowing software patents that do not present any substantial advancement to the prior art.

Wednesday, October 25, 2006

New York, New York

I'm off to speak at the conference Impact of Technological Change on the Creation, Dissemination and Protection of Intellectual Property, organised by Albany Law School, and taking place at the Cornell Club, New York.

Tuesday, October 24, 2006

Copyright Activity Patch

I used to be a Boy Scout. There, I've said it. One of the things I loved about Scouting (besides the camping, gaming and learning about knots of course) was badge hunting. The merit badges I remember obtaining were Backpacking, Knots, Forestry, Swimming, Electricity, First Aid and Astronomy. Had I been a Scout in California, I could have obtained the newest activity patch: Respect Copyright. Yes boys and girls, you can now display your loyal and kind respect for copyright law with a patch that will tell your friends that you're a good consumer, and also that if you catch them using P2P you will turn them in to the appropriate authorities.

How can you obtain this badge? According to the Washington Post:

Scouts will be instructed in the basics of copyright law and learn how to identify five types of copyrighted works and three ways copyrighted materials may be stolen. Scouts also must choose one activity from a list that includes visiting a movie studio to see how many people can be harmed by film piracy. They also can create public service announcements urging others not to steal movies or music.
I have been struggling to come up with snarky remarks to the above, but alas, I have failed. Nothing beats the comedic value of the original.

Monday, October 23, 2006

Regulating YouTube?

It seems like after YouTube has been purchased by Google, it has managed to attract a large number of news stories, particularly with calls to regulate the site.

The first news item comes from a potential crack-down of YouTube in the UK, as it has been noticed by ministers that the site is used for cyber-bullying, posting violent attacks on the streets, and to humiliate teachers. While the use of the site's upload capabilities to promote violence are abhorrent, one has to ask whether it is possible to regulate the practice only within the UK. Perhaps YouTube can fulfill better policing and editorial functions, but that would leave them more vulnerable to liability.

There are other stories about copyright concerns. The BBC reports that YouTube has had to remove 30,000 infringing clips from Japanese media companies, and then that an independent company has been placing Premiership goals on the site. I believe that what has been taking place has been prompted by the increase in publicity, but also by the fact that YouTube will increasingly become a target for litigation.

Friday, October 20, 2006

Patenting movies? The MPAA says no

I had reported last year about a patent application in the United States that tried to obtain protection for a movie plot. The application is by one Mr Andrew Knight, who believes the USPTO should be granting patents for unique and inventive movie ideas. His website contains a brief explanation of his reasoning:

"A Plot or Storyline Patent application seeks to patent the underlying novel and nonobvious storyline of a fictional story. Such protection is to be contrasted from the copyright protection of one of millions of possible expressions of an underlying storyline. The field of possible applications is broad, and may tentatively be split into an entertainment-advertisement dichotomy. The epitome of an entertainment application is an original, thought-provoking, often shockingly unique movie plot. Several potentially patentable features may have been found in the plots of, Memento, The Thirteenth Floor, Being John Malkovich, Butterfly Effect, The Game, Fight Club, The Matrix, Total Recall, The Truman Show, Minority Report, The Village, Groundhog Day, and Eternal Sunshine of the Spotless Mind, to name a few."
Readers who are familiar with my line of thinking about patents will probably imagine that at the moment of reading such a steaming pile of post-digestive bovine refuse my blood-pressure has reached dangerous levels and I am about to go into a rant of some sort. Rest assured, I must admit that I'm not particularly surprised by this line of reasoning, it is a logical progression from what is already happening with the patently absurd idea that you can patent anything under the sun.

Mr Knight has put together a legal argument, which he has been pushing in his own website and on several journals. You can read a critique of Mr Knight's ideas in an article in the Harvard Journal of Law & Technology. In my opinion, there are several problems with the patenting of movie plots. Firstly, copyright law is doing quite well, thank you very much. Secondly, the idea-expression dichotomy serves a purpose. You can come up with a novel idea, what really matters in the creative and entertainment industries is the expression of that idea, the uniqueness of the end-result. If somebody takes too much of your expression, then there is copyright infringement. We also have a form of societal protection of unique ideas. Why would anyone want to copy the plot of Memento or The Matrix? The result would not be the same, it would be a derivative of lesser quality, a rip-off. Copyright doesn't preclude you from producing your own variation of the story, but copy too much and you infringe. The third problem is one of resources. Can you imagine poor patent examiners comparatively looking at movie plots?

The MPAA has issued a comment to the USPTO on this very subject, where they state that they oppose patent protection for movies. They state:
"The MPAA notes with some alarm a trend toward claiming inventions related to the creative arts using claim steps that recite events that are conveyed through an artistic expression (e.g., the actions a character in a story may perform). It is neither appropriate nor practical to evaluate the novelty and non-obviousness of a claimed invention through an assessment of the “quality” or “merits” of an artistic expression. Such claims are properly addressed through the application of the substantive requirements for patent eligibility."
What would you know? I agree with the MPAA! The weather report for Hell reads: "Decidedly chilly, expect blizzards".

By the way, for those who think that this is of no importance in Europe, remember that the EPO has a bad record on keeping patentable subject matter in reign. The words "computer implemented invention" come to mind.

Thursday, October 19, 2006

Microsoft goes into open access territory

Microsoft has announced that it will be digitising books in what will be called Live Book Search. This service will include a partnership for publishers to provide books to Microsoft, and they will scan them for free to make portions of them available online through something called the Windows Live Book Publisher Program. Microsoft will also scan books that are out of copyright and make them available online.

Does this sound familiar? It should. Live Book Search sounds suspiciously similar to Google Book Search. For those not familiar with the project, Book Search allows publishers to submit books for scan, and also provides entire scans of out-of-print books from selected libraries.

Microsoft, the we-didn't-think-about-it-first-but-we'll-produce-our-own-version-anyway company.

Wednesday, October 18, 2006

Virtual worlds hit the mainstream

In an unprecedented move for a large media organisation, Reuters is reporting that it will be reporting directly from Second Life. One should expect new reports on market values, the price of customised badger avatars and the latest gig in the Second Life archipelago.

I find this piece of news as further evidence that online gaming is becoming more prevalent in the mainstream. South Park's episode "Make Love Not Warcraft" is now officially the most viewed machinima in the world (although whether South Park is to be considered "mainstream" is arguable).

Tuesday, October 17, 2006

Patenting food?

With the rise of the celebrity chef and the increasing amount of money spent on recipe books and all things food-related, I guess that it should not come as a surprise that intellectual property protection would not be far behind.

One would believe that the possibility to protect culinary creations is rather limited. Recipes (and books of the same) are protected by copyright law, and that should be the extent of the protection. Or should it? The purpose(and commercial value) behind a book of recipes is that buyers can replicate the recipes and cook them in their own homes. But what happens when the one using the recipes is a competitor? What if another chef is stealing your livelihood? Some chefs are fighting back by using more IP protection.

Infoworld has the great story of a restaurant in Chicago where a food writer received the following note in edible cotton-candy paper:

Confidential Property of and H. Cantu. Patent Pending. No further use or disclosure is permitted without prior approval of H. Cantu.
So many things to analyse in such a small (and may I say, transient) licence. Since when did cotton-candy become the medium of choice for food-related licensing? Could we have a new wave of eat-wrap contracts? I would truly like to see the patent application, but alas, USPTO searches have failed me so far. Mr Cantu could have applied for a design patent, many examples of artistic designs are protected in that way (see Greg's Patenting-Art database for some). Could some food be protected as a business method? Sillier patents have been issued, so that would not be beyond the realm of feasibility.

However, there could be something analogous to the copyright/patent dichotomy in software protection. Recipes are the same as code, they protect the literal elements, and both are adequately protected under copyright. But food (and software) are more than code, they have a functional element where literal copyright protection could not apply. Would patenting do? At least not in Europe, although I can envisage a similar argument to the technical contribution test in software. I will not even try a guess what is the state of the art in the United States, I gave up a long time ago trying to understand it. Perhaps protecting some food as a design could be a better option.

Or maybe chefs could try an even stranger concept. Cook well, write recipes and get people into the restaurant. Silly me, that's been tried by the likes of Jamie Oliver. Must try harder.

Monday, October 16, 2006

Malware installation email

We should all now be aware of messages with requests to input your bank details. But what about messages asking you to install updates? I have received the following from support@microsoft.com (links removed to protect the innocent):

Internet Explorer 7 downloads
Get downloads for Internet Explorer 7, including recommended updates as they become available. To download Internet Explorer 7 Release Candidate 1 in the language of your choice, please visit the Internet Explorer 7 worldwide page.
Internet Explorer 7 Release Candidate 1 is pre-release software. Please view the support page for troubleshooting and feedback options.
When you click on the links, it takes you to this page (click to enlarge)

The page looks like the real thing, but it's located in a .info domain. I did not try to download the application, but it's very likely that it will try to install a trojan or keylogger.

Saturday, October 14, 2006

Fox goes the weasel

IceWeasel is a GNU browser (new, GNU, geddit?) based on Firefox distributed with Debian and Ubuntu Linux. Why does Ubuntu need a new browser, you may ask? As with so many things that have to do with the Free Software Foundation, it all comes down to their definition of free and to ethics. Apparently, Firefox has been included in Debian distributions as a fork not maintained by the Firefox Foundation. Firefox is fine with this, but they are not willing to have that fork identified with the Firefox trade mark. Fair enough, but this means that Firefox has had to enforce their trade mark against Debian. Because Ubuntu is a commercial distribution of Debian, it seems like this have prompted the popular Linux distro to switch to IceWeasel.

Unsurprisingly, this has prompted yet another free software v. open source blog flame war, with both sides making statements about the issue. I tend to be mostly on the open source camp, so I guess that I favour Firefox on this. I agree with some comments that accuse Debian's stance as hypocritical. Debian and Ubuntu both have trade marks, and they must know that you must defend your trade mark if you want to keep it (at least that's my understanding of American trade mark law).

Save the fox!

Friday, October 13, 2006

New internet defamation case

A woman in Florida has won $11.3 million USD (¢6 billion Costa Rican colones) in an online defamation case. Sue Scheff has a company called Parents Universal Resource Experts, which provides assistance to troubled teenagers. Scheff filed a defamation lawsuit in her State against a Louisiana woman who posted a message in an Internet message board for parents of troubled teens. Bock accused Scheff and her company of being "con artists", "crooks" and "frauds" who "exploited families" and placed them in "risky" and "possibly abusive" programs.

It seems like Bock presented no defence, so the punitive damages may be illusory. Should you care what you write on message boards? I doubt it, this seems to be an exceptional case. However, be careful next time you start a flame war, or decide to go trolling on a board.

Thursday, October 12, 2006

The Broken Net

Dire warnings about the future of the Internet from Nitin Desai, chair of the Internet Governance Forum (IGF). According to Mr Desai, the web could be splintered in the not-so-far future into national firewalls, high-speed fiefdoms and limited consumer choice.

We have become used to the world-wide network where everyone supposedly has access to all resources, but if some national regulators and private enterprises have it their way, then the open web will not survive the next five years. Regulators in countries like Pakistan and China already have in place firewalls that filter all manner of content (including your truly's). Then there are the efforts by some telecommunication companies to have a two-tiered web via higher subscription charges. And to make things worse, news sources have started applying country-specific filtering to some news items that may initiate litigation.

John Perry Barlow's Independent Republic of Cyberspace looks more like an utopia than reality.

Tuesday, October 10, 2006

Google buys YouTube's lawsuits?

Unless you are living under a rock (or don't care about these sort of things), you will know that Google has purchased the popular video website YouTube for a staggering $1.65 billion USD (about £880 million GBP in real money).

Only The Guardian has picked up on one of the interesting implications of this purchase. Google may also be buying the very large copyright liability concerns that seem to follow YouTube. Back in July a journalist sued YouTube, a case that is ongoing. Analysts have indicated that YouTube's copyright position is quite strong, as it takes down content after complaints, and it also offers plenty of advice to its users on uploading copyright material. Despite these warnings, YouTube is filled with infringing material, from the latest clip from The Daily Show to commercials, news reports and documentaries. However, YouTube has managed to avoid litigation because it has yet to make any money, despite getting 100 million videos served per day. Now that Google owns it, it would be possible that copyright owners will be encouraged and file suits based on the fact that they may get some return.

Talking of the Daily Show, have a look at this clip on net neutrality.

Monday, October 09, 2006

Interoperability at work: Firefox and Vista

Ars Technica has a summary of the visit from a group of brave Hobbits (Firefox developers) who visited Mordor (Microsoft's headquarters in Redmond) to have a look at potential interoperability issues between The One Ring (Windows Vista) and Narya, one of the three Elf rings (Firefox). You can also find the entire account of this brave trip in There and Back Again, A Hobbit's Tale (Vladimir Vukićević's blog).

Boring technical stories are so much more fun with Lord of the Rings.

Friday, October 06, 2006

Game software patent upheld in Europe

(via Video Game Blog). The Board of Appeals of the European Patent Office has allowed a number of claims in a European patent application by games firm Konami (EP20060013875). The application is for a "Video game system and storage medium for storing program for use in the video game system". Not broad enough for you? I have read the abstract and some of the claims, and as far as I can make it, the claim is for a football game where the player can assign and store commands to pass the ball to the nearest available player, and the passing system can assign and display passing commands on screen. The claim is a triumph in patent gobbledygook, for example:

"...said guide displaying means further displays a pass guide mark (G3) accompanying another player character (P2) which belongs to the same team as said player character (P1) keeping said game medium (B) and to which said game medium (B) can most easily be passed from said player character (P1) keeping said game medium (B),"
So, passing the ball in-game is patentable. The application had been refused initially, but Konami appealed the decision and has won some claims. Firstly, the Board has agreed that there is no prior art for this application (I'm sure gamers reading this can come up with some examples). Secondly, the aspect of the technical nature of the "invention" is fulfilled by the fact that this is a solution to the limitations of gaming GUI, namely the fact that available players may not be visible as the player with the control plays the game normally. The Board believes that there is indeed a problem solved by the claim, namely:
"The aforementioned difference implies an enlarged size of the guide mark which avoids any risk of the mark being concealed by a neighbouring player character. Making a possibly concealed indicator clearly visible on a display screen to the user of an interactive video game does not exclusively address a human mental process (i.e. it is not exclusively determined by the cognitive meaning of the information presented) but contributes an objective technical function to the display. The functional quality is not cancelled by the fact that the visualised information will also enter into a decision of the user interacting with the video game displayed on the screen."
Words truly fail me. Aren't patents like these not supposed to be granted in Europe? Where is the technical effect in larger marks for football games?

Thursday, October 05, 2006

Copyleft manual

Erick Iriarte from Alfa-Redi has forwarded a link to the Spanish book called "Manual del Copyleft". I have oly browsed its contents, but it looks quite impressive. It can be downloaded directly and it's released under a CC BY-SA licence (Reconocimiento-CompartirIgual 2.5 España).

Excellent online resource, particularly because there has been a marked absence of good reading material on open licences in the Spanish language.

Wednesday, October 04, 2006

iTunes DRM cracked

Norwegian DVD Jon (aka Jon Lech Johansen) has done it again. While he had already cracked earlier versions of Apple's FairPlay DRM, there had not been releases for recent versions. His early crack, called FairKeys, was a crack that was used by Apple crack software such as JHymn, but it only worked on iTunes version 5 or earlier.

Now Jon has "reverse engineered" the current version of FairPlay, and according to several reports, he has been licensing the reversed engineered version to allow interoperability between players. This could potentially earn him a free trip to France, but I'm more interested in the potential legality of his actions, particularly considering that he now lives in the United States.

The DMCA (section 1201(f)) actually offers an exception for reverse engineering. This exception permits circumvention by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of interoperability with other programs. Similar provisions exist in other legislation, such as the UK's CDPA, and of course in the 1991 European Software Directive. The question is then if Jon has obtained permission from Apple to reverse engineer Apple's DRM. If he has not, he could be in trouble as he would have circumvented an effective technological protection measure.

Thhis is good news for interoperability, but it could be bad news for DVD Jon.

Tuesday, October 03, 2006

Don't bet on online gambling

The U.S. Congress has voted the Unlawful Internet Gambling Enforcement Act, the latest piece of legislation that attempts to put a leash on objectionable internet behaviour. As far as online regulation goes, this bill looks like the real thing. The Act makes sure that some existing criminal activities apply to ICTs, such as the internet and mobile device gambling. The problem as I understand with American gambling legislation is that it is strictly a state issue, but with the internet, the possibilities for inter-state online gambling increases. In short, this act tries to ban inter-state gambling through wireless devices.

While it has always been argued that it is difficult to regulate the international and inter-jurisdictional nature of the internet, the new Act tries some novel ways of achieving enforcement. If you cannot possibly attack the transactions as such, and if most providers are online, how can you stop the activity? Stop the payments! The Act prohibits "persons engaged in a gambling business from knowingly accepting credit, electronic fund transfers, checks, drafts, or similar financial instruments or the proceeds of any other financial transaction in connection with unlawful Internet gambling". By placing this prohibition, banks and credit card facility suppliers can block unlawful transactions, and they are awarded civil immunity in cases they block such a transaction.

I wonder how will banks know which transactions to block. My guess is that online gambling sites will start trying to mask their names in some ways. While I'm sceptical of the efficacy of this legislation, I beleive that this is the next generation in Internet regulation. Goverments of the world will indeed take heed of this move.

However, I found some parts of the legislation quite telling. The new Act excludes from the gambling definition activities such as securities exchanges. Gambling with cards is not kosher, but gambling with the stock market is OK.

Monday, October 02, 2006

Curious worm virus email

I have received a rather curious virus in my Inbox. The email reads:

Mail server report.
Our firewall determined the e-mails containing worm copies are being sent from your computer.
Nowadays it happens from many computers, because this is a new virus type (Network Worms).
Using the new bug in the Windows, these viruses infect the computer unnoticeably.
After the penetrating into the computer the virus harvests all the e-mail addresses and sends the copies of itself to these e-mail addresses
Please install updates for worm elimination and your computer restoring.

Best regards,
Customers support service
The file has an attachment, which I assume will contain the real virus. There are several elements that leads one to believe this is not real: the painful English, the dodgy zip attachment, the fact that it comes from motorsportwarehouse.com, etc. However, I can imagine a better drafted email that would catch more people.