Not that Jonathan Krim expects much good to come of it: Evaluating A Patent System Gone Awry [pdf]

While brawls over Social Security and lobbying high jinks dominate the news on Capitol Hill, Congress is quietly moving on one of the technology industry’s top priorities: revamping the patent system.

As unsexy as that sounds, at stake is who gets to benefit most from innovation.

[...] Some corporations have internal teams whose sole mission is to file for and acquire as many patents as possible. Patent examiners are overwhelmed, and are waving on patent applications — especially in technology areas — that would be called head-scratching if one were being polite.

(Here’s one: Google owns a newly minted patent for what the page of results looks like when you search for something. Specifically, if the search term that you entered comes back in bold face, like this, that method now belongs to Google.)

Meanwhile, everyone seems to be suing everyone else claiming patent violations, helping to clog the courts and costing everyone money.

[...] Patent issues tend to be nonpartisan, and some tweaking of the law seems likely from a Congress with a track record of strengthening intellectual property.

But perhaps more than any issue on Capitol Hill this year, this one is firmly in the hands of those with vested interests. Those with alternative ideas, and the general public, are on the outside, looking in.

From Public Knowledge’s email announcement:

Public Knowledge is pleased to announce that The U.S. Appeals Court for the D.C. Circuit this morning threw out the Federal Communications Commission’s order establishing the so-called “broadcast flag.”

In a unanimous opinion, the court agreed with our argument that the FCC exceeded its authority in creating this broadcast flag scheme. Judge Harry T. Edwards, writing for the court, said: “In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority it now claims.”

The opinion: No. 04-1037; American Library Association, et al. v. Federal Communications Commission

Before: EDWARDS, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: It is axiomatic that administrative agencies may issue regulations only pursuant to authority delegated to them by Congress. The principal question presented by this case is whether Congress delegated authority to the Federal Communications Commission (”Commission” or “FCC”) in the Communications Act of 1934, 47 U.S.C. § 151 et seq. (2000) (”Communications Act” or “Act”), to regulate apparatus that can receive television broadcasts when those apparatus are not engaged in the process of receiving a broadcast transmission. In the seven decades of its existence, the FCC has never before asserted such sweeping authority. Indeed, in the past, the FCC has informed Congress that it lacked any such authority. In our view, nothing has changed to give the FCC the authority that it now claims.

[...] In this case, all relevant materials concerning the FCC’s jurisdiction — including the words of the Communications Act of 1934, its legislative history, subsequent legislation, relevant case law, and Commission practice — confirm that the FCC has no authority to regulate consumer electronic devices that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.

Later: News.com’s Court yanks down FCC’s broadcast flag; Slashdot FCC Broadcast Flag Struck Down; Copyfight’s Court on Broadcast Flag: You Can’t Hide Elephants in Mouseholes; NYTimes: Court Blocks TV Anti-Piracy Technology Rules; USAToday’s Appeals court blocks TV anti-piracy tech rules [pdf]

From the NYTimes:

“Without a ‘broadcast flag,’ consumers may lose access to the very best programming offered on local television,” said Edward O. Fritts, chairman and chief executive of the National Association of Broadcasters. “This remedy is designed to protect against unauthorized indiscriminate redistribution of programming over the Internet. We will work with Congress to authorize implementation of a broadcast flag that preserves the uniquely American system of free, local television.”

Gigi B. Sohn, president of the digital rights advocacy group Public Knowledge, which led the fight against the broadcast flag rule, warned that intervention by Congress could create a new set of problems for consumers and innovators.

“If Congress starts to go down the road of giving the F.C.C. broad power over new applications and technologies, who knows what comes next?” Ms. Sohn said. “This case is about the future of technology.”

[...] “If the broadcast flag cannot be used, program providers will have to weigh whether the risk of theft is too great over free, off-air broadcasting and could limit such high-quality programming to only cable, satellite and other more secure delivery systems,” said Dan Glickman, president of the Motion Picture Association of America. “It is important to remember that this decision is only about the F.C.C.’s jurisdiction, not the merits of the broadcast flag itself.”

That last bit is directly from the MPAA press release, which also includes this bit of propaganda:

About the Broadcast Flag: Digital programs received through cable or satellite systems can be protected from being passed to other viewers on the Internet. However, digital programming received through regular broadcast means is susceptible to mass illegal distribution. That’s where the Broadcast Flag comes in, providing the same protection for programs received through regular broadcast means that is afforded to cable and satellite programming. The Broadcast Flag does NOT prevent copying — only redistribution over the Internet and other digital networks.

Nobody needs any help dissecting this bit of sophistry, but it does show that the fight on this is far from over.

An interesting post at Groklaw suggests that I lead a sheltered life — to wit, I have never thought of “reverse engineering” as being a bad thing. Yet, if this article has it right, the concept has come to be associated with generally shady things - A New Expression for “Reverse Engineering”?

So, here’s the $64 question — if it’s important to increase enrollment in engineering and science programs, do we make a concerted effort to quash this characterization of a fundamental mode of inquiry — or do we play it up, to make the field edgier?

Maybe start a motorcycle gang called Freedom to Tinker? Couldn’t we get Ed Felten to wear a motorcycle jacket and a pair of sunglasses? <G>

(Sorry about the dearth of postings — end of the term deadlines hit us just as much as they hit the students!)