This 3 panel cartoon more than all the words spilt over Net Neutrality, IP law and Copyright encapsulates all that is wrong with the law giving in this area. They know not what they are doing and should have left well enough alone years ago.

In a turnabout, the judge in the Thomas-RIAA case is indicating a new trial for the case. His cover is that he erred in procedural instructions to the jury. My gut says the judge is having second thoughts having reviewed other cases and assessment of the ‘distribution’ component of Copyright law. –

The federal judge who oversaw the Recording Industry Association of America’s lawsuit against Jammie Thomas said Thursday he might have erred with one of his instructions to the jury, and is considering granting a new trial.

In response, an RIAA spokeswoman said, “if we have to re-try the case, we will do so without hesitation.”

U.S. District Court Judge Michael Davis, who presided over the nation’s only file sharing case to go to a jury, noted in a brief order (.pdf) Thursday that, under federal case law, infringing a copyright likely requires actual dissemination of the pirated content, not merely making copyrighted works available.
Thomas_testimony
Jammie Thomas testifying in her civil trial last October, while U.S. District Judge Michael Davis watches from the bench.
Courtroom sketch: Wired News/ Cate Whittemore

In October, Davis instructed jurors that infringement occurs the moment a Kazaa user makes copyrighted music available to others from their share folder — an instruction he now regards as a “manifest error of the law.”

The Duluth, Minnesota, jury found Thomas liable for infringement and awarded the music industry plaintiffs $222,000 for 24 songs.

The so-called “making available” argument is at the center of the legal battle over file sharing. But whether Thomas could ultimately prevail on a retrial is unclear. After three days of testimony, it took jurors only five minutes to conclude that Thomas was liable, and a few more hours to affix a price tag.

One of the cases Judge Davis cited in his order Thursday is also something of a double-edged sword for the defense. In that April decision, Atlantic v. Howell, an Arizona judge said that merely making a copyrighted work available for downloading wasn’t infringement. But the judge also held that the RIAA’s own investigators can effectively turn it into an infringement just by downloading a copy from the share folder involved.

What this shows is that our legal system is not infallible. Judges do make errors and ordinary citizens are the lesser for the loss of justice before notches. Best guess is that this is not a situation that will overturn the original award. The error was procedural not a fact of case law. So the result will probably be the same.

But our legal system should not be a game.

Linky.

A recent trend that has become a national embarrassment is the formation of companies whose sole purpose is to collect outdated patents and try to apply them to new technology and sue the makers and users of that technology. It’s called a legalized protection racket. They produce nothing, clog the courts, raise the cost of goods and services while stifling innovation. Latest in the headlines is a group that calls themselves “Rembrandt”.

Rembrandt Inc. owns a patent on technology that it says is part of the digital television broadcasting standard used by the TV networks. Rembrandt is suing 14 companies, including Walt Disney Co.’s ABC, General Electric Co.’s NBC Universal, CBS Corp. and News Corp.’s Fox Broadcasting for patent infringement and wants millions of dollars in royalties.

The American Antitrust Institute, a nonprofit advocacy group, asked federal regulators last month to bar Rembrandt from enforcing its patent. Otherwise, Rembrandt’s suits could add “tens of millions” of dollars to the cost of digital TV, most of which will likely be passed on to consumers, the nonprofit said.

“This is a massive tax that Rembrandt is trying to place on the transition to digital TV,” said David Balto, an antitrust attorney who co-wrote a petition the AAI submitted March 26 to the Federal Trade Commission.

The AAI argues that Rembrandt is violating antitrust and fair competition laws by abusing the monopoly provided by its patent.

In recent years, the FTC has required companies to license their patents and set maximum royalties in several cases that involve technology standards.

Industry groups set technical standards in areas such as computer networking and memory chip technologies. The standards let different companies make compatible products. (Yahoo News)

Unfortunately a significant percentage of our elected reps in DC are lawyers, including 2 of 3 running for president.The patent act needs revision, and the patent office needs a housecleaning. It will take more them this one small voice to get their attention.

There is an outfit called Joyent that is offering free python cloud computing for developers. All they ask is — “… Joyent only asks that you provide Joyent unlimited access to your customer information and clickstream data. …”. Sounds like a great deal for the developer doesn’t it? We don’t think so –

• To enter this ‘garden’ you have to have 25k unique clicks a month. Well ok, but supporting those clicks have to come from somewhere don’t they — like the app is running on some existing server farm somewhere. Well if that investment has already been made then scaling is the factor to be considered.
• What does Joyent intend to do with the data? Do not Dear Developer think that you are immune from prosecution for the acts of another. If Joyent does something nefarious with the data collected you may still be sued as the portal agent that some customer data was scarfed from. The ‘I was not aware’ defense is so weak as to be indefensible.
• How portable is that data set once you want to exit? I have seen way too many startups die because the switch costs of going to the platform they needed to be on bankrupted them. Define your exit strategy before you sign up for any SaaS compute services.

If you are a business manager looking to make a move to Saas bring your trusted IT guy with you. Make sure they provide you ranking on the level of difficulty of a switch out of services to another provider. As an example. Right now I would rank the switch costs of EC2/S3 platform lower than the BigTable engine in GAE. Know how to get out before you try to get in with Saas. Your business depends on it. And for Gods Sake, know what may be done with any data so hosted.

Linky.

A few days ago I was a little surprised to learn that I tunes had passed Walmart in gross music sales. It seems that Walmart is currently offering less downloadable product: The have stopped selling anythign with DRM:

Over the last few months, the meme has taken hold that the big record labels had finally come to terms with the fact that DRM didn’t help and only frustrated users — and was finally okay with getting rid of it entirely. That sounds good, but it appears that the labels are still having trouble letting go. Wal-Mart’s online download store has finally abandoned selling any DRM’d tracks, but with it, it’s lost almost all music from major labels like Sony/BMG and Warner Music. (Techdirt)

This gives Apple a short term advatage while the music industry plays chicken with the world’s largest retailer. The reality is, DRM is a huge hassle for the retailer and creates huge customer service / satisfaction issues that are costly to deal with. I’m sure the Sony and Warner suits think they are playing chicken with easily manipulated Arkansas hayseeds. The truth is, if you sell to Walmart, they call the shots or they don’t buy. I think we will soon be able to thank Walmart for finally killing DRM.

Mr. Malone of the WSJ lays out aspects of societal and business change that the US faces in say the next 50 years. He throws terms out like ‘fat pipe’, ‘process patents’, ‘free internet’, etc. Our loyal Thridpipe readers already know all this because we have this electronic pulpit on high. We have been laying this prescription down since this blog was created. —

- Build up Brand America. Government agencies, including the USAID and United States Commercial Service, need to promote American brands, via the Web, hardware and software, to everywhere in the world where they are currently unknown or disliked. Voice of America needs to become a massive Internet portal to the American economy and media.

The U.S. International Trade Commission must actively pursue illegal international threats to our e-economy from hackers to scammers — such as bringing serious economic sanctions against nations that look the other way (or even support) these activities. We need to capture the dominant share of the minds of the next two billion, enforce an honest Web, and make America again synonymous with the best.

- Create a Fat Pipe. Many of the great fiber optic lines entering and leaving the U.S. were almost dark a decade ago, and that abundance created an opportunity that helped propel the creation of companies like Google. But Google’s recent announcement that it was going to install its own cable across the Pacific to Japan suggests that the age of cheap bandwidth is almost over. Late last year, a report by Nemertes Research predicted a bandwidth shortage by 2011.

The U.S. needs to have the fastest, cheapest and most reliable Internet access on the planet, both inside our borders and in our connections to the rest of the world. Like the railroads and the interstate highway system before it, we need a program of direct investment, subsidies and tax breaks to assure that Americans always have the world’s best Web access – and the rest of the world has the best access to us.

- Revamp Nafta. While the Democratic candidates are calling for the abolition, or crippling of the North American Free Trade Agreement, what we should be discussing is how to revamp it and other trade accords to reflect the newly emerging world of people-to-people, not just business-to-business, trade. We need to be prepared for a world where knowledge workers around the world are hired online by the minute – in other words, radically simplified employee contracts, payroll tax documentation and W-2s, and improved tax laws on home offices, part-time work, and self-employment.

But most of all, we must not impede this inevitable transformation by doing anything to limit free trade – even if that means reaching individual trade accords with countries regarding buying and selling on eBay, MySpace, Facebook and the like.

- Promote a Free Internet. The lights of intellectual freedom that have been created by the Internet are slowly going out all over the world – look at China’s recent blackout of Web videos of events in Tibet. We need to fight to keep the Internet open and accessible to everyone on the planet, and keep tyrants from censoring their people.

Short of that, we need to keep the U.S. an island of Web freedom, open to anyone who can reach our servers and sites. A good start would be to require U.S.-based companies to maintain free speech in all their international subsidiaries – no more Yahoos helping foreign governments locate dissidents.

- Reform patent laws. In an era characterized by “free” downloads as well as the proliferation of pirate content sites, the overly broad U.S. patent and copyright laws need to be reformed to reflect these new sensibilities. Today they stifle innovation. A good place to start would be a revamping, if the not the elimination, of “business method” patents, which even Justice Anthony Kennedy has suggested can suffer from “potential vagueness and suspect validity.” Meanwhile, patent approvals need to be made faster, tougher and cheaper.

- Make education more open. It is time for the rest of us to accept the reality that education in the U.S. is now a multi-platform (public, private, home) experience, and begin building Web-based curricular support for all three. It is in our national interest to make all schoolchildren well-educated and competitive in the modern economy.

Now we are not Malone clones. There have been articles we have vehemently disagreed with. But for once he is firing all the cylinders. Most definitely get rid of the ‘business process’ patents. They are a scourge. But we ought to go further. First roll back patent use to 17 years as was originally fostered. If you can’t turn a profit in that period of time you don’t deserve to keep the patent anyway. Patents and copyrights should also have innovation and sunset provisions. If a patent holder does not utilize the patent or license it for deployment within the first 4 years then the patent is invalidated. As well if a copyright is not longer a published work available for first release purchase or the death of the author then it becomes public domain. I love Elvis Presley recordings, but something is wrong when the estate is still in force collecting royalties.

There is also one that Malone missed. ‘Promote the Everyman’. Foster an environment that anyone who wants to compete can do so. The function of government should be to build that stadium of equal opportunity. The place to start is in revamping small claims court to include all the provisions of superior court as to court directed remedies. Today most small claims are only available for remedy of monetary damages. The problem is in many cases the damage stems from systemic abuse by corporations. The little guy has to be able to have their day in court. Abolish one way contracts and forced arbitration as a manner to receiving products & services. Eliminate legal extortion by making it a penalty of disbarment for a lawyer to blindly issue legal threats without ascertaing that there has been actual damages to his client.

Mr. Malone is to be commended for this piece.

Read the whole article here.

In what is a delicious turn of events Sony/BMG is being accused of software piracy! That’s right while BMG rails against others via the RIAA on music piracy they are caught with their hands in the cookie jar themselves. PointDev –

We are not interested in an amicable settlement. It is not just a question of money but more importantly in principle. The rate of software piracy in the company is very high. According to the Business Software Alliance, a association of the major publishers in the market, 47 percent of programs used in the company would be [unlawful] in France…

Plucky little PointDev is going after them. I can’t wait to see the demand letter from them. “We have already ascertained your guilt and have the evidence to prove it…” Delicious.

Is this a great planet or what??

Linky.

Well if you’re a Telco and think your legal team can be a profit center then guess what? So will other folks as well.

Intellect Wireless Inc. has sued T-Mobile USA Inc., U.S. Cellular Corp., Virgin Mobile USA Inc. and Helio Inc. in federal court in Chicago, accusing the companies of infringing wireless image messaging patents.

The lawsuit was filed in the U.S. District Court for the Northern District of Illinois.

Intellect Wireless, a Texas company with offices in Fort Worth and Reston, Va., said in the 8-page filing that it holds rights and standing to sue for violation of a patent entitled “Picture Phone with Caller ID” and for two separate patents called “Method and Apparatus for Improved Paging Receiver and System.” All three patents were issued in 2007.

The suit said Daniel Henderson, the founder of Intellect Wireless, is the sole inventor of the patents at issue. Overall, according to the suit, Henderson has 25 U.S. patents and several pending related to picture/video messaging in wireless devices such as mobile phones, personal digital assistants and portable computers.

But wait! It doesn’t stop there! –

Sprint Nextel Corp. and T-Mobile USA Inc. have been hit with new class action consumer suits in Florida and California federal courts, the litigation coming as Congress grapples with wireless consumer protection bills that could reduce state oversight of cellular operators.

The Florida suit alleges Sprint Nextel subscribers were charged for roaming charges on the No. 3 carrier’s network after being told they would not incur such fees under a major calling plan.

“Sprint knew or reasonably should have known that these representations were materially false, deceptive or misleading because it not only routinely charged PCS Free and Clear Plan customers roaming rates for calls made and received ‘on the network,’ Sprint even charged these customers roaming rates for calls in their home cities where the plan was sold and where Sprint purportedly provided comprehensive network coverage,” the suit stated. “In fact, Sprint not only charged its customers roaming charges for calls made on the Nationwide Sprint PCS Network, it even charged them roaming charges for calls received on the Nationwide Sprint PCS Network.”

You know, If some company would come out with a campaign that said — “Here’s our costs. We think we deserve X profit. We’re willing to sell for Y, no tricks, bring your own phone or we will sell you one. See you in a year, we’ll talk to you for the next deal.” Don’t flip your customers, resolve the problems, post your policies online. Live up to your agreements.

But lawyering up is no solution. And IP lawyer green mail should be outlawed. Radical suggestion — Patents cannot be sold. It stays in force while the company uses it or it devolves to the personal engineer. When once no parties exist to be holder of record then the invention or process goes creative commons.

Linky 1

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We talk alot about the ‘ThirdPipe’ here. That ubiquitous high bandwith presence that is everywhere and preferably wireless.But maybe its tiime we show you why you need it. in cruising the Web today I ran across this site. They did a nice rundown of office suites online.

Office suites you say? I got MS Office now and I ocassionally use Google Docs Dog so what’s the big deal. Well none in a sense. For an individual we highly recommend Google Docs. It has most of the features anyone would want. The fact there is nothing to buy is a plus. We use it heavily. [PS. If you haven't tried Google Notebook, get it. It is a labor savor on the 'Net.]
More on You Want Your ThirdPipe Because…

There is a relatively new breed of American business that exists only to acquire obscure patents and use them to extort money from otherwise productive enterprises via the court system. One such firm, Rembrandt IP management is intent on ravaging the cable and broadcast industries with a barrage of suits:

If successful, the firm, Rembrandt IP Management, could pull in big money from the enforcement of patents related to the cable industry’s standard for connecting customers to the Internet and potentially throw a financial monkey wrench into the broadcast industry’s mandate to transmit all TV signals in digital form by a year from now.

More on Suing for fun and profit: this time it’s cable and broadcasters