“Patent Exhaustion” Sustained

From Supreme Court Rules Patent Laws Can’t Be Used to Prevent Reselling regarding Impression Products, Inc. v. Lexmark Int’l, Inc. [local pdf]

The Supreme Court on Tuesday placed sharp limits on how much control patent holders have over how their products are used after they are sold.

The case concerned Lexmark International, which makes toner cartridges for use in its printers. The court ruled that the company could not use patent law to stop companies from refilling and selling the cartridges.

The fine point that Justice Ginsburg places on the ruling (dissenting on the notion of US patent exhaustion with respect to foreign sales, where she elects to distinguish the applicability of copyright and patent regimes in the case of exhaustion) is worth noting:

[…] I dissent, however, from the Court’s holding on international exhaustion. A foreign sale, I would hold, does not exhaust a U. S. inventor’s U. S. patent rights.

Patent law is territorial. When an inventor receives a U. S. patent, that patent provides no protection abroad….

Because a sale abroad operates independently of the U. S. patent system, it makes little sense to say that such a sale exhausts an inventor’s U. S. patent rights. U. S. patent protection accompanies none of a U. S. patentee’s sales abroad—a competitor could sell the same patented product abroad with no U. S.-patent-law consequence. Accordingly, the foreign sale should not diminish the protections of U. S. law in the United States.

Fake News

The NYTimes has decided to run with the issues of “fake news” — the generation of clickbait articles grounded in the principles of urban legends, turbocharged by the combination of heightened political fervor and digital interconnectedness.  Both stories are sobering and troubling: How Fake News Goes Viral: A Case Study, and  This Pizzeria Is Not a Child-Trafficking Site.

The emphasis of these articles, as well as much of the online discussion that I have seen, is on the “fake” part; but it seems to me that what we really are struggling with is the “news” part — as in, what *is* “news” anymore?

Is this not the (re-) discovery of the idea that news is more than the distribution platform, but something grounded in the assumption of editorial (and institutional) vetting?  And are we not in the midst of a differential understanding of this distinction — again?  (As in the old joke, “if it’s in a book, it must be true?”)

More importantly, we’re gertting some important examples of what it means when we talk of the role of technologists in the framing and exploitation of their creations — particularly when the interests of those deploying them are best promoted by downplaying (or even disguising) the broader consequences of their use.  (I can’t be the only one flashing back to “Casablanca” when Mark Zuckerberg is `shocked, shocked’ that there’s fake news going on here, am I?)

Certainly it’s led me to an even more scrupulous consideration of what I use something like Facebook for — and “news” is not something I ever want to be relying on Facebook or its ilk to supply.

The Battle Never Ends

Because, of course, the distinctions between “shall” and “will” are a prima facie demonstration of copyrightable innovation: ‘We Shall Overcome’ Copyright Case Moves Closer to Trial

Along with the recent suits involving “Happy Birthday to You” and Woody Guthrie’s “This Land Is Your Land,” the case has focused attention on one of the central questions in copyright: finding a balance between protecting intellectual property on behalf of private owners, and giving the public access to famous songs whose origins may be murky.

For “We Shall Overcome” and “This Land,” the issue is also freighted with politics at a time when the songs are being embraced by protesters and activists on multiple sides of major issues.

…The suit also argues that the version of the song registered for copyright in 1960 and 1963, by Pete Seeger and others, includes only minor alterations that are not enough to justify a copyrightable variation, like changing the line “We will overcome” to “We shall overcome.”

Archives Reloaded

Well, got the archival posts from the base WordPress site back into the system.  And I moved over the PDF/image archive directories, so at least some of the old links will have PDF equivalents that work.

It looks like some of this is OK; but I expect that there will be seams (e.g., the old Salon links to things like Tom the Dancing Bug cartoons are no longer valid).  But, I’ll keep plugging away, but the goal will be to move forward.

Flease feel free to ping me if a link doesn’t work, and I’ll see what I can do.

Furdlog Redux

After the site got hijacked and, thus, shutdown, I’ve been a little overwhelmed with lots of other things, so it’s lain fallow for some time.  With the 2016 election, however, it seems that I need an outlet, even though it might also mean getting put on all sorts of lists.

The old content on digital copyright still exists, but I will need to migrate it over and that’s probably going to take a little doing.  With the Thanksgiving break coming up, I thought I’d get started on infrastructure and then brush up on my SQL before moving things.  I’m sure there will be glitches, but I hope to get things relatively settled before the end of the month.

Of course, at this point, I figure the audience for this blog has changed; certainly I have, so it’s likely that FurdLog is going to take a wider look at the issues of technology, policy, and governance over the coming days and months.  Where that means I’ll settle remains to be seen, but I hope that it will be possible to make some contribution to the discussions that I’m sure we’ll be having.

I’ll Take “Exploiting Tragedy” for $500, Alex!

Because, if Mike Huckabee and Republican (+1) US governors can do it, why can’t the US security apparatus? Encrypted Messaging Apps Face New Scrutiny Over Possible Role in Paris Attacks [pdf]

American and French officials say there is still no definitive evidence to back up their presumption that the terrorists who massacred 129 people in Paris used new, difficult-to-crack encryption technologies to organize the plot.

But in interviews, Obama administration officials say the Islamic State has used a range of encryption technologies over the past year and a half, many of which defy cracking by the National Security Agency. […]

Nonetheless, such “end-to-end” encryption technology is now so widespread that the attack has revived vitriolic arguments between American intelligence officials and Silicon Valley. Only weeks ago, the matter appeared settled, at least temporarily, with a decision by President Obama that it would be fruitless for the government to try to compel the technology companies to provide the keys to protected conversations and data.

Legality Questions About Use of Stingray

Covert Electronic Surveillance Prompts Calls for Transparency [pdf]

Law enforcement officials across the United States have become enamored of the StingRay, an electronic surveillance device that can covertly track criminal suspects and is being used with little public disclosure and often under uncertain legal authority. Now, though, some states are pushing back, and are requiring the police to get a court order and local consent before turning to the high-tech tool.

There Goes A Classic Classroom Copyright Example!

Happy Birthday ruled public domain as judge throws out copyright claim [pdf]

A federal court judge in Los Angeles has declared the song Happy Birthday to You belongs in the public domain, dealing a blow to the music publishing company that has been collecting royalties from the song for decades.

US district judge George H King ruled on Tuesday the copyright originally filed by the Clayton F Summy Co in 1935 applied to a specific arrangement of the song, not the tune itself.

King ruled that Summy never acquired the rights to the song’s lyrics, and the defendants’ claims to the contrary were “implausible and unreasonable”.

“Because Summy Co never acquired the rights to the Happy Birthday lyrics, [the] defendants, as Summy Co’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics,” King wrote in a judgment posted online [local copy].

Only third party copies of the ruling are available at the moment. US District Court, CA Central District might eventually post their own version.

While Happy Birthday’s copyright status may no longer be a classroom example, the ruling is a pretty good example of how an interlocking set of claims can be erected when trying to maintain a position, as well as how such things have to be dismantled in order to win a court case.

The distinction between the music and the lyrics as copyrightable elements is critical in this case because both Parties agree that the Happy Birthday melody was borrowed from Good Morning and entered the public domain a long time ago. The Parties disagree only about the status of the Happy Birthday lyrics. Defendants contend, in brief, that the Hill sisters authored the lyrics to Happy Birthday around the turn of the last century, held onto the common law rights for several decades, and then transferred them to Summy Co., which published and registered them for a federal copyright in 1935. Plaintiffs challenge nearly every aspect of this narrative. They argue that the lyrics may have been written by someone else, the common law copyrights in the lyrics were lost due to general publication or abandonment before the lyrics were published, and the rights were never transferred to Summy Co.

[…] Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics. Defendants’ speculation that the pleadings in the Hill-Summy lawsuit somehow show that the Second Agreement involved a transfer of rights in the lyrics is implausible and unreasonable. Defendants’ suggestion that the Third Agreement effected such a transfer is circular and fares no better. As far as the record is concerned, even if the Hill sisters still held common law rights by the time of the Second or Third Agreement, they did not give those rights to Summy Co.

In light of the foregoing, Defendants’ Motion is DENIED and Plaintiffs’ Motion is GRANTED as set forth above. Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.

and, of course, there’s still the potential for appeal…

For an entertaining screed on the subject, there’s this Pajiba article: Happy F***in’ Birthday!

Volkswagen’s Diesel Fraud and Open Source

It was nice to see that someone at the NYTimes made this connection: Volkswagen’s Diesel Fraud Makes Critic of Secret Code a Prophet [pdf]:

“Proprietary software is an unsafe building material,” Mr. [Eben] Moglen had said. “You can’t inspect it.”

That was five years ago. On Tuesday, Volkswagen admitted it had rigged the proprietary software on 11 million of its diesel cars around the world so that they would pass emissions tests when they were actually spreading smog.

The breadth of the Volkswagen scandal should not obscure the broader question of how vulnerable we are to software code that is out of sight and beyond oversight.

Sadly, the article closes with the EPA closing ranks with the automakers:

That is not how carmakers or even the E.P.A. see things. The code in automobiles is tightly protected under the Digital Millennium Copyright Act. Last year, several groups sought to have the code made available for “good-faith testing, identifying, disclosing and fixing of malfunctions, security flaws or vulnerabilities,” as Alex Davies reported last week in Wired [pdf].

A group of automobile manufacturers said that opening the code to scrutiny could create “serious threats to safety and security.” And two months ago, the E.P.A. said it, too, opposed such a move because people might try to reprogram their cars to beat emission rules.

Later: A great turn of phrase — “The Internet of Cheating Things” in Volkswagen and the Era of Cheating Software [pdf]

We’ll See

Don’t hatchet your counts before they chicken, but An Old Songbook Could Put ‘Happy Birthday’ in the Public Domain [pdf]

A federal lawsuit filed by a group of independent artists is trying to change that, and lawyers in the case, in a filing last week, said they had found evidence in the yellowed pages of a nearly century-old songbook that proves the song’s copyright — first issued in 1935 — is no longer valid.

A judge may rule in the case in coming weeks. If the song becomes part of the public domain, it would cost the Warner Music Group, which holds the rights, millions of dollars in lost licensing fees. It would also be a victory for those who see “Happy Birthday to You” as emblematic of the problems with copyright — a song that has long since survived anyone involved in its creation, yet is still owned by a corporation that charges for its use.