Courtroom Staff, Freaked Out By FBI Agents, Failed To Record Important Terrorism Court Hearing

from the spooked dept

We just wrote about the hearing in the 7th Circuit appeals court concerning accused terrorist Adel Daoud, highlighting how Judge Richard Posner had turned it into a secret hearing, kicking everyone but DOJ officials out of the courtroom at one point. One of the reporters in the room (prior to being kicked out), Michael Tarm, had tweeted that everyone should look for the recording of the oral arguments on Thursday "if only to hear Posner" yell: "Look! You answer my questions, not your questions!"

Except, if you looked, you would never find that recording. Because it doesn't exist. The court clerk, who's been doing this for 25 years, says his staffers "goofed" and failed to record the hearing at all, in large part because they were so spooked by FBI agents crawling all over the court room for hidden microphones.

Though hearings before the 7th U.S. Circuit Court of Appeals are routinely recorded and published on the court's website, Court Clerk Gino Agnello admitted Thursday his staff "sort of freaked out" before Wednesday's hearing in the case of alleged wannabe South Loop bar bomber Adel Daoud.

Court staff who operate the audio recorder saw FBI agents sweep the courtroom for bugs and "misinterpreted" that to mean they shouldn't record the hearing, Agnello said.

And, of course, because these hearings are normally recorded, there was no one there to do standard stenography. Instead, the transcript is often written up after the fact... based on the recording. Ooops. Except, you know, not "oops." This is a pretty big screw-up, considering the importance of our supposedly "open" judicial system. Daoud's lawyer, Thomas Durkin, properly points out that "this is what happens when people get scared," and shows how difficult it is to have a fair trial when so much is "driven by fear-mongering."

Filed Under: 7th circuit, adel daoud, court clerk, doj, fbi, recording, richard posner, secret hearings

Secret Trials: UK Holds A Secret Terror Trial, As US Appeals Court Holds Secret Hearing In Terror Case

from the open-justice dept

To have a functioning judiciary in an open democracy, part of the point is to make sure that court proceedings are open to the public. Yes, there may be certain instances where certain aspects must be kept secret, but the default should be open and public. Unfortunately, in both the US and UK this week, it appears that when it comes to the bogeyman word "terrorism," courts are willing to go dark. The more serious situation is over in the UK, where it has just come out that a secret terrorism trial is being held -- the first one in centuries. Even the names of the two defendants are not known (they're listed as merely AB and CD). Journalists had even been barred from mentioning the existence of the trial, until a gag order was just overturned. Note that the Guardian's page linked above had to turn off comments for legal reasons. Journalist Tim Cook has also spoken out eloquently about why this cannot stand.

I cannot say how broken-hearted I am about the prospect of a major criminal trial involving two men charged with serious terrorism offences being held entirely in secret for the first time in modern British legal history. I have spent my entire journalistic life campaigning against courtroom secrecy and this represents a nadir and indication of abject failure.

But the proposal is being contested by the process of law; albeit very limited and garrotted by the lack of a constitutional paradigm for freedom of the media and expression. We have been paying the price for not having a First Amendment for many years. Now we are entering the endgame of something beyond the dissolution of open justice.

Meanwhile, back here in the good, old United States, where we do have a First Amendment, at least we know that Adel Daoud is on trial. But the 7th Circuit Court of appeals kicked everyone out of the courtroom to hold a "secret hearing" with just the DOJ. As we wrote a few months ago, Daoud's lawyers are asking to actually see the FISA court orders that were used to gather evidence against their client -- and the DOJ is flipping out about that. While some of the hearings were held openly, at one point, Judge Richard Posner abruptly kicked everyone but the DOJ out, including Daoud's lawyers.

As the arguments concluded, Judge Richard Posner announced the public portion of the proceedings had concluded and ordered the stately courtroom cleared so the three-judge panel could hold a “secret hearing.” Daoud’s attorney, Thomas Anthony Durkin, rose to object, but Posner did not acknowledge him. Deputy U.S. marshals then ordered everyone out – including Durkin, his co-counsel and reporters.

Only those with the proper security clearance -- including U.S. Attorney Zachary Fardon, his first assistant, Gary Shapiro, and about a dozen FBI and U.S. Department of Justice officials – were allowed back in the courtroom before it was locked for the secret session.

Some reporters tried to ask what was going on, but Posner simply told them "No!" and kicked them out. Daoud's lawyer was similarly perplexed:

“Not only do I not get to be there, but I didn’t even get to object,” Durkin said. “I had to object over the fact that I couldn’t even make an objection.”

As the article notes, this is highly unusual. While in national security cases, certain information may be filed under seal, or certain portions may be held "in camera" without reporters or the public, it's not at all common to have just one side present. And while you may say that it makes sense in this case, where the three judge panel has to determine whether or not it's appropriate to share the FISC orders with Daoud's lawyers, it's still somewhat troubling to see the ease with which secret court proceedings may occur.

Filed Under: adel daoud, richard posner, secret trials, terrorism, uk, us

Judge Richard Posner's Ruling In Wacky 'Banana Lady' Case Highlights Just How Wrong Judge Kozinski Was About Copyright

from the two-famous-judges,-two-very-different-rulings dept

If you're talking about the short list of the most well-known appellate judges in the federal court system today, Judges Alex Kozinski and Richard Posner are likely on that list, potentially near the top. We've discussed both plenty of times in the past, sometimes agreeing strongly with rulings from both -- and sometimes finding their rulings maddeningly troublesome. However, lately we've been especially troubled by Kozinski's ruling in the Cindy Lee Garcia case, in which he appeared to make up his own rules about what copyright law says, and how an actress in someone else's film can magically claim a copyright over her performance.

A new ruling by Posner in a case that is... well... positively bananas, provides a nice quick lesson in just how wrong Kozinski was. The case of Catherine Conrad, the "Banana Lady" involves Conrad suing a bunch of credit unions over a variety of wacky theories after she performed at some event they held. All of the basic theories got tossed out by a state court, but since copyright is a federal issue, it went through the federal courts, ending up in front of Posner and two other judges in the 7th Circuit. The issue is that Conrad claims a copyright on a bunch of things she likely has no copyright claim over, but in part, told the credit unions that people in attendance could take photographs and videos, but only for "personal use." Conrad, additionally, insists that posting such images and videos to Facebook is not personal use, and therefore her copyrights have been violated. There are a whole bunch of problems with this argument, as you might imagine, but let's focus on one part of Posner's decision that Kozinski might want to take note of:

The performance itself was not copyrighted or even copyrightable, not being “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a); see, e.g., Kelley v. Chicago Park District, 635 F.3d 290, 303–04 (7th Cir. 2011); Baltimore Orioles, Inc. v. Major League Baseball Players Assʹn, 805 F.2d 663, 675 (7th Cir. 1986); United States v. Moghadam, 175 F.3d 1269, 1280–81 (11th Cir. 1999); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.03[B], p. 2‐32 (Aug. 2004). To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written “dance notation” of it. See Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n. 3 Wikipedia, (2d Cir. 1986); “Dance Notation,” http://en.wikipedia.org/wiki/Dance_notation. She did neither.

What's somewhat incredible is that the David Nimmer that Posner relies on above to highlight that a performance itself is not copyrightable is one of the few "copyright experts" to claim that Kozinski's bizarre interpretation makes sense. Of course, while Nimmer is still one of the most respected copyright scholars around, his analysis of copyright law has been increasingly odd over the past few years.

Meanwhile, Posner notes all the other problems with Conrad's wacky claim, including the idea that she could have a valid copyright on a banana costume:

Conrad has copyrights, which we'll assume are valid, on photographs and sculptures of her in her banana costume. She has also registered a copyright on the costume itself, but there is doubt (not necessary for us to resolve) about the validity of that copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product. See, e.g., “Adult Banana Costumes,” Google, www.google.com/#q=adult+banana+costumes&tbm=shop

I just love the thought of Richard Posner doing that Google search. There's also a somewhat hilarious explanation of what a "singing telegram" is. However, he accepts the possibility that she might have a valid copyright and explores whether or not photos and videos taken by audience members could possibly infringe. He finds that suggestion pretty much preposterous (again, Kozinski should read this):

Photos or videos made by members of the audience could conceivably have been either reproductions of, or works derivative from—that is, creative variants of, Gracen v. No. 13‐2899 5 Bradford Exchange, 698 F.2d 300, 304–05 (7th Cir. 1983)—copyrighted elements of Conrad’s performance, such as the costume (if it is copyrightable). And she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted. 17 U.S.C. §§ 106(1), (2). It’s unlikely that the photos and videos were derivative works; to be such a work, a photograph, or any other copy, must have an element of originality, Schrock v. Learning Curve Intʹl, Inc., 586 F.3d 513, 519 (7th Cir. 2009); Ets‐Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076–77 (9th Cir. 2000)—some modicum of creativity added to the copyright‐ed work. Cf. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991); Bleistein v. Donaldson Litho‐graphing Co., 188 U.S. 239, 249–50 (1903) (Holmes, J.); Jewelers’ Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 934 (S.D.N.Y. 1921) (L. Hand, J.). “To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.” L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc). But whether the photos or videos were mere depictions, or sufficiently departed from the originals to be derivative works, they would violate Conrad’s copyrights if the copyrights covered material that members of the audience duplicated in their photos and videos.

She had, it is true, authorized the arrangers of the trade association event to permit the members of the audience to take photos, or make videos, for their personal use. But that was a limited license. We don’t know how limited; but maybe it didn’t authorize posting photos or videos on the internet, or at least on some of the internet sites on which they were posted; and in that event such posting may have violated the provision of the Copyright Act that forbids unauthorized video or tape recording of a musical performance, 17 U.S.C. § 1101(a), or the provision that forbids the unauthorized public display of copyrighted musical or choreographic works. § 106(5). The arrangers might therefore be charged with having induced violation of those provisions. Cf. Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). But Conrad does not invoke either provision, and probably couldn’t because one of the arrangers advised the audience of the prohibition at the end of the performance—and Conrad doesn’t contend that any photos or videos of it were posted on the internet before the performance ended.

So her suit has no merit.

Separately, Posner notes that it seems clear that Conrad seems to spend an inordinate amount of time filing frivolous lawsuits, including one in which she even sued someone for not posting a video of her performance -- somewhat the opposite of the present case.

But we cannot end this opinion without remarking her abuse of the legal process by incessant filing of frivolous lawsuits. This is at least the eighth case she's filed in federal court since 2009, and she has filed at least nine cases in state court just since 2011.... She appears not to have won any judgments, but she did obtain settlements in the first three federal suits that she filed.

She once sued event organizers who mailed persons attending the event a postcard that had a picture of her in her banana costume. On another occasion she sued persons who videotaped her performance but declined to post the video on their website after she demanded a $40,000 license fee; her theory was that the recording infringed her copyright even though she had consented to it and that the individual defendants’ decision not to post the video (and thus avoid paying the license fee) constituted tortious interference with her business. The defendants obtained summary judgment in that suit after enduring 15 months of litigation.

She has filed suits in state and federal court against her former lawyers, and once sued her web hosting company for taking down her web site after she failed to pay the bill. The web host had paid $4000 to compensate her for “lost business” while the web site was down—even though it was down because of her failure to pay. She pocketed the $4000 but sued the web host—and in both state and federal court—anyway.

Her previous state‐court complaint against persons who are defendants in the present case accused one of them of being “armed and dangerous,” compared him to the Unabomber, and suggested that “someone from Homeland Security or Fort Know” (she must have meant Fort Knox) should take his “threats seriously.” She didn’t specify what those threats were, or whether she meant that he had made threats or that he posed a threat. She demanded that another defendant both admit having been “physically present at the Kennedy Compound located in Boston, MA” (presumably she meant Hyannis Port, not Boston) on the day before or the day of the trade association event involved in this case and produce all her travel documents for those days.

The defendants in one of Conrad’s federal suits were awarded more than $55,000 in costs and fees, pursuant to 17 U.S.C. § 505, which authorizes the award of costs, including a reasonable attorney’s fee, to the prevailing party in a copyright suit. She has been sanctioned at least $23,000 in her state court suits on the authority of Wis. Stat. §§ 802.05(3), 895.044, and possibly $73,000 more in one of the suits, though we can't be sure just why her company was ordered to pay that amount to the defendants in that suit.

Posner closes by questioning why the federal district court has not yet barred her from filing further suits until she has paid her previous litigation debts.

To be clear, this case is nuttier than the Garcia case in many ways, but the underlying principle concerning copyright is basically the same: whether or not a "performer" has any copyright claim. Posner dismisses such a preposterous idea quickly, whereas Kozinski upended decades of otherwise settled law.

Filed Under: alex kozinski, banana lady, copyright, richard posner

Becker & Posner: Time To Minimize Patent & Copyright Law

from the shrink-shrink-shrink dept

Famed economist Gary Becker and appeals court judge Richard Posner have long teamed up to publish The Becker-Posner Blog, in which they pick key issues and each of them discuss the same issue in separate posts. It's a really great blog, and we've mentioned it in the past -- in a situation where we disagreed with Posner's suggestion that copyright should be expanded to help newspapers. More recently, we've noted that Posner's been very interested in patent issues, and has been somewhat vocal on how the system is mostly broken. So it's no surprise that patents are a recent topic on the blog.

Posner's contribution actually touches on both patents and copyrights, both of which he admits seem to be excessive, though (somewhat surprisingly) he argues that patents are a bigger problem. I get the sense that he hasn't spent that much time on copyright issues given some of the statements that he makes. Perhaps if he explores that issue more deeply he'll realize that some of the problems are just as, if not more, serious in copyright law.

Posner starts with the premise that IP works in cases where there are high capital expenditures for creation/invention, with low barriers to copying -- but that it doesn't work otherwise. There's increasing evidence that the premise is a bit faulty, and there are reasonable questions about whether or not patents and copyrights really are the best thing in those high capital expenditure cases, but his recognition that it barely works at all otherwise is welcome. He falls into the cliche of basically comparing pharma patents (which he claims works) to software patents (where they clearly don't work) -- and suggesting that it's merely about recognizing that the costs and benefits in different industries are different. His conclusion, though, is that the "costs" probably outweigh the benefits in most cases:

The pharmaceutical and software industries are the extremes so far as the social benefits and costs of patent protection are concerned, and there are many industries in between. My general sense, however, bolstered by an extensive academic literature, is that patent protection is on the whole excessive and that major reforms are necessary.

I think if he explores the issue more deeply, he'll realize that the different impact on different sectors is more a symptom of the problem with how the system is set up, rather than the problem itself.

On copyrights, he recognizes problems, but seems to think it's more limited, arguing that the law treats different industries differently (his basic suggestion for fixing patents):

For example, when recorded music came into being, instead of providing it with the same copyright regime as already governed books and other printed material, Congress devised a separate regime tailored to what were considered the distinctive characteristics of music as a form of intellectual property. Patent law could learn from that approach.

That's a... generous retelling of copyright law. It is true that Congress has tried to duct tape on "fixes" to copyright law when innovation challenges the status quo, but it's also created newer and bigger problems, as the different "rights" start to overlap and blur together. Is a stream a performance, a distribution or a reproduction? All three? These things get complex fast... and in part it's because of Congress's constant patching without recognizing the longer term impact.

Posner also has this oddity:

The problem of copyright law is less acute than the problem of patent law, partly because copyright infringement is limited to deliberate copying; patent infringement does not require proof even that the infringer was aware of the patent that he was infringing.

I think "deliberate" is a slightly sloppy word choice here. He's correct that copyright requires (mostly) actual copying, but it need not be "deliberate" in the traditional sense. Law prof. John Tehranian has famously covered just how much we accidentally infringe on a daily basis. Posner seems to be suggesting that to infringe on copyright, you know you're infringing. These days that is true for fewer and fewer cases. That said, he does still recognize some key problems:

Nevertheless, as in the case of patent law, copyright protection seems on the whole too extensive... The most serious problem with copyright law is the length of copyright protection, which for most works is now from the creation of the work to 70 years after the author’s death. Apart from the fact that the present value of income received so far in the future is negligible, obtaining copyright licenses on very old works is difficult because not only is the author in all likelihood dead, but his heirs or other owners of the copyright may be difficult or even impossible to identify or find. The copyright term should be shorter.

He also argues that a good solution would be a much broader and clearer definition of fair use -- something we agree would be helpful:

The problem is that the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license. Intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity.

Becker, meanwhile, mostly skips over the copyright question and focuses on how to reform the patent system. Unlike Posner, Becker actually considers the idea of abolition, citing historical arguments:

The various harmful effects of the patent and copyright systems encouraged Arnold Plant, an English economist, to publish over 75 years ago two influential articles on why England and other countries would be better off without patents and copyrights. Among other things, he argued that the temporary monopoly power given to patent holders often led to inefficiently high prices and reduced output of patented goods, that many persons would continue to invent even if they could not patent their inventions, and that patents distort innovations in favor of goods and processes that can be patented and away from innovations that cannot be patented. His favorite example of the latter is basic research in the sciences that produced the theory of relativity, the theory of evolution, and in more modern times our understanding of DNA and genes. He believed that the patent system induced some creative scientists to work in areas that could be patented rather than on basic scientific research that could not be patented.

He notes that, in the end, getting rid of them entirely would upset too many apple carts, and he basically follows Posner's reasoning that high cap-ex + low barriers to copying should get protected, while everything else should be excluded:

Probably the best solution would be to maintain the patent system on drugs and a few other products that are expensive to innovate and cheap to copy, and eliminate patents on everything else. In particular, this means eliminating patents in the software industry, the source of much of the patent litigation and patent trolling.

He admits that he's not sure where to draw the line, and his best suggestion is to "start by eliminating the ability to patent software, and go on from there to prune the number and type of inventions and innovations that are eligible for patent protection." That seems to be an admission that there's a problem, but not a deep enough understanding to know how to fix the system. Once again, it seems like a case of targeting the symptoms rather than the cause.

All in all, I find that the argument from Boldrin & Levine about why the system should be done away with completely a lot more compelling. In that, they specifically note Posner's occasional blindness to the root of the problem, and his focus on symptoms. I'd like to believe this is a question of familiarity with the subject matter, actually. The solutions and ideas that Becker and Posner speak to are similar to what we often hear from people when they see the problems of the patent system, but haven't fully thought through the issues. One hopes that as they explore the details more thoroughly, that they might realize that the problems run deeper than they seem to believe.

Filed Under: copyright, gary becker, patents, richard posner

Judge Posner On A Mission To Fix Patents; We Have Some Suggestions

from the preach-it dept

It's really great to see that Judge Richard Posner has decided to take on our broken patent system in a big bad way. He's had a long-term interest in intellectual property (and even wrote a very good book on the subject, which I keep on my desk), but he's rarely had to rule on patent issues, in part because of our ridiculous setup in which all patent cases are funneled to the Federal Circuit, which historically has been "captured" by patent expansionists (including some former patent attorneys, at points). However, Posner made it clear to a nearby district court that he was interested in maybe heading over to hear a patent case if one arose, and he got a big one: a key patent battle between Apple and Motorola over smartphone patents. As you probably know by now, he dismissed that case with prejudice, and slammed both parties in the process.

While the dismissal was technically over failures in how the damages calculations were done, the rulings and statements he made certainly hinted at the failings of our patent system. Since then, he's not held back on the issue, giving an interview where he questioned the need for patents in "most industries." And, now, he's written an opinion piece for The Atlantic, in which he explains that there are too many patents, and that the system is broken. Basically, he dives in and explores his earlier statements that few industries probably need patents. He starts out by explaining why he thinks patents work in the pharma industry (something that I'm not sure is really true, but let's accept it for now), and then notes that the conditions that make patents work there simply don't apply to most other industries:

But few industries resemble pharmaceuticals in the respects that I've just described. In most, the cost of invention is low; or just being first confers a durable competitive advantage because consumers associate the inventing company's brand name with the product itself; or just being first gives the first company in the market a head start in reducing its costs as it becomes more experienced at producing and marketing the product; or the product will be superseded soon anyway, so there's no point to a patent monopoly that will last 20 years; or some or all of these factors are present. Most industries could get along fine without patent protection.

The key thing that he realizes -- which many patent system supporters ignore -- is that for patents to make sense, you have to have a situation where the invention wouldn't otherwise be created. But in a dynamic industry, where there are many normal incentives -- innovation to beat the competition, for example, or merely innovation to build a better product for you own needs -- it's not at all clear why patents are needed. In fact, because every single party other than the one who gets the patent is blocked from making use of their own efforts, the patent system creates a massive amount of waste. Sure, the "first" one to get to the patent office gets "ownership," but every other person is denied ownership of their own innovation.

In an industry in which teams of engineers are employed on a salaried basis to conduct research on and development of product improvements, the cost of a specific improvement may be small, and when that is true it is difficult to make a case for granting a patent. The improvement will be made anyway, without patent protection, as part of the normal competitive process in markets where patents are unimportant. It is true that the easier it is to get a patent, the sooner inventions will be made. But "patent races" (races, induced by hope of obtaining a patent, to be the first with a product improvement) can result in excessive resources being devoted to inventive activity. A patent race is winner take all. The firm that makes an invention and files for a patent one day before his competitors reaps the entire profit from the invention, though the benefit to consumers of obtaining the product a day earlier may be far less than the cost of the accelerated invention process.

He goes on to discuss the problems of the way the court system handles patent cases, noting that judges don't understand technology, and juries are even worse. Yet, most patent trials demand a jury trial, and juries quite frequently side with the patent holder, "believing that they must be worthy inventors defending the fruits of their invention against copycats -- even though, unlike the rule in copyright law, a patentee need not, in order to prevail in an infringement suit, show that the defendant knew he was infringing."

He goes on to highlight a few other issues, including the terrible job the Patent Office does in reviewing patents. He notes that the examinations are "perfunctory," and that this has resulted in way too may patents being issued, which only exacerbates the problem. I actually think he understates it there as well, because the more patents are granted, the more likely you are to get bad patents, and with bad patents come bad decisions and massive victories for some useless troll. And that just encourages people to apply for more bad patents, which overloads the system even more.

Posner has some suggestions, some of which I think might improve things a small amount, some of which probably won't. While he definitely recognizes that there's a problem, I'm not convinced he's really gotten to the heart of it yet -- though I'm hopeful that will come, as he spends more time on the subject. Here are his suggestions:

reducing the patent term for inventors in industries that do not have the peculiar characteristics of pharmaceuticals that I described; instituting a system of compulsory licensing of patented inventions; eliminating court trials including jury trials in patent cases by expanding the authority and procedures of the Patent and Trademark Office to make it the trier of patent cases, subject to limited appellate review in the courts; forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent; and (what is beginning) provide special training for federal judges who volunteer to preside over patent litigation.

I know there's a lot of support for that first suggestion, and I definitely can see how it might be helpful, but it does feel like a cheap way out to just "carve out" certain industries. It's treating the symptoms, not the problem. Also, if that happens, I'd bet that patent lawyers will quickly work out loopholes and workarounds. The compulsory licensing system, again, seems like an iffy suggestion. Beyond the fact that some might deem it unconstitutional (because the Constitution specifically says that patents and copyright are about the right to "exclude" -- and a compulsory license eliminates that), it still does keep the same basic friction. It certainly wouldn't stop patent trolling or bogus patents. Eliminating jury trials might be helpful at the district court level, but many of these cases end up on appeal anyway (and, again, some might debate the legality of taking away the right to a jury trial).

The idea of expanding the authority of the USPTO to make it the place where patent cases are heard has a pretty big problem, in that the USPTO tends to be very pro-patent already, and you're basically asking it to police itself. Requiring a patentee to produce the product is an idea that I know has a lot of support around here, but I'm not convinced that it makes sense. You could see situations where someone really does just focus on ideas/research and wants to pass those on to others to make. Perhaps a slight adjustment to that would be not that the patentee has to produce the product, but that they have to either produce it themselves or partner/license to someone who is producing it. Finally, I also worry about the suggestion of "special training." Because who's going to do the special training? Chances are, it'll be patent attorneys. It's not going to be software geeks. We've already seen what happens when we have "specialized" judges. It's called CAFC, and it massively expanded patents.

So what might actually be effective? Here are a few of my own ideas that I hope Judge Posner will consider at some point:

• Independent invention defense. In his article, he even mentions that copyright already (effectively) has this. Copyright infringement has to involve copying. Patent infringement does not. The fact that so many patent infringement cases involve independent invention is lost on most people who don't understand the system. Adding an independent invention defense would fix a very, very large percentage of the problems with the patent system today.
• Independent invention as evidence of obviousness. This is very similar to the idea above, but slightly more nuanced. Patents are only supposed to be given if something is both new and non-obvious to a person of ordinary skill in the art. For the most part, patent examinations focus much more on the "new" part, and not whether the idea is "non-obvious." Some people think that if an idea is new then clearly it's non-obvious, but that's not the case. Often there are obvious ideas that don't go anywhere because the technology/market/etc. just isn't ready yet. But if a number of different people "of ordinary skill in the art" are all coming to the same solution at around the same time, that certainly suggestions the invention itself is an obvious next step, and all such patents should be declared invalid.
• Actually asking those skilled in the art. Patent examiners are often very skilled and highly educated, but they're working in the patent office, not out in the field innovating. It's not as easy as many people think to really keep up on the state of the art if you're not working on it. Just think how many ridiculous patents we see all the time. Many of those bad patents could have been prevented if a patent examiner just went to people in the field and asked them. I know that some people criticize this idea, because they claim that (1) everything looks obvious in hindsight and (2) this will just lead jealous others to insist something is obvious to deny a patent, and then copy the idea themselves. Neither of these are convincing. I'm not saying to just ask, and if someone says it's obvious, the patent is dead. Rather, the patent examiner could ask a few people for an explanation of why it's obvious, and then determine if the reasons are convincing. Already, inventors effectively have "advocates" who argue for them that a patent is valid, so why not create the same sort of thing on the other side -- setting up a true adversarial process -- by seeking out experts who can explain why something may be obvious.
• Get patents going back to the different circuit appeals courts, rather than funneling them all through CAFC. Having a single "patent" appeals court was an experiment, and I think it's clear that it's failed. The court, constantly spending time with patent lawyers, but not with innovators, clearly has an expansionist view of patents, and multiple judges refuse to recognize that patents could have any downside. Spread the cases around a bit, and hopefully you get some more judges who get past the cover story and see the real problems.

There are some other suggestions that I think might be helpful at the margins. But these suggestions would help address many of the biggest problems with the system today.

Filed Under: fixes, patents, richard posner, software patents

Judge Posner: Do Most Industries Even Need Patents?

from the good-to-see dept

We've already covered esteemed Judge Richard Posner's vehement dismissal of Apple's patent infringement case against Motorola. While we, and many others, had noted Posner's caustic remarks concerning the abuse of the patent system, patent system defenders tried to play his arguments down as merely being concerned with the damages calculations (the technical point on which he dismissed the case). However, Posner recently seems to be taking an even stronger stance. First, even after he dismissed the case, he released an order spanking Apple, though even he notes in the order "The case having been dismissed, I am not at all sure that I have jurisdiction to issue this order! Anyway it really isn’t an order, but merely a comment on an email."

But, more importantly, he gave an interview with Reuters, where he was much more explicit about his concerns with the overall patent system and how it seems to hold back progress and innovation.

Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug.

Advances in software and other industries cost much less, he said, and the companies benefit tremendously from being first in the market with gadgets - a benefit they would still get if there were no software patents.

"It's not clear that we really need patents in most industries," he said.

Also, devices like smartphones have thousands of component features, and they all receive legal protection.

"You just have this proliferation of patents," Posner said. "It's a problem."

This isn't a huge surprise. If you've read Posner's book The Economic Structure of Intellectual Property Law written with William Landes, you'd know that he's long recognized that there are competing forces in the patent system, which could lead it to doing more harm than good. However, it's always appeared as if he came down (just slightly) on the side of thinking they more or less worked. It appears he's now pretty clearly shifted over to recognizing the widespread harm patents do.

The Reuters report also notes that he specifically let it be known to district courts that he was interested in hearing a patent case. Despite serving on the 7th Circuit appeals court, Posner never gets to hear patent cases, because of our ridiculous system where all patent appeals go to the federal circuit. That's too bad, because it would have been nice to have allowed him to make this ruling at the appellate level and get a real circuit split going to force the Supreme Court to be more aggressive in fixing the problems in the patent system. Either way, it's good to see him speaking out on this and admitting that many industries probably don't need patent protection (hell, if he really wants to explore the drug industry, he may discover that it doesn't need patents either, but that's a whole different post...).

Filed Under: richard posner, software patents, william landes
Companies: apple, motorola

Being Pissed Off Doesn't Mean You Have A Legal Claim

from the repeat-this-over-and-over-again dept

One of the common themes we see over and over again is people filing lawsuits just because they're upset about something (to a lesser extent, this also applies to DMCA takedowns). We just wrote about Judge Posner's shredding of Apple's patent litigation strategy, noting that just because you're "really annoyed," it doesn't mean you get to sue. Famed venture capitalist Fred Wilson has riffed on this idea, talking about how he loves investing in innovators rather than copycats, and he feels a visceral emotional anger when he sees an innovator copied, but that's no reason for a lawsuit:

I have often felt that "palpable sense of injustice" when our firm is an investor in the innovator and a copycat competitor shows up. But there is a difference between being pissed and having a legal claim.

Indeed, as we've written before, we recognize the emotional response that comes about when this happens. It's natural to get angry when someone copies you. But is it a reason to go legal? That's much more difficult to justify. In fact, as Wilson notes, often someone copying you can be a good thing:

Knockoffs create competition for the innovator and keep them honest. And they provide an opportunity for those that cannot, for some reason, work with the innovator.

And, as he notes, if the original company is a true innovator, they'll keep innovating and stay ahead of the competition anyway:

If the innovator keeps innovating, as Apple and [YCombinator] have, they will do fine and will enjoy the spoils that come from creating the category and leading it.

And that's really the key in all of this. Competition is not a static snapshot. Time doesn't stand still. Innovation is an ongoing process. Copycats are often a bit behind the leader, but as long as the leader truly understands its market, it's in a much better position to continue innovating and leading. The copycats act as incentive to increase that innovation, and that seems like a pretty good thing, if we believe that greater innovation is a good thing. People have a natural reaction where they think that "copying" is bad -- but if you look at the overall impact, and the fact that it results in greater innovation from the leader as well, it turns out the opposite is true.

Filed Under: copying, dmca, fred wilson, richard posner
Companies: apple

Judge Posner Dumps Ridiculous Patent Fight Between Apple & Motorola As Contrary To The Public Interest

from the with-prejudice dept

Judge Richard Posner is, perhaps, the most influential judge not on the Supreme Court. Beyond writing a ton of books (and columns and articles and blog posts), his rulings often seem to carry extra weight. On intellectual property, he's been something of a mixed bag. He's written an entire book (which I consult frequently) on The Economic Structure of Intellectual Property Law. While extremely knowledgeable on the subject, he does (too frequently) come down on the side of believing that without IP law, you couldn't have a functioning market for products that are covered by intellectual property. Still, he doesn't just roll over on IP cases (or, really, any case -- though I'm still troubled by his belief that filming the police in public can be a bad thing).

While he normally is on the 7th Circuit Appeals Court, appeals court judges will sometimes "slum it" down at a district court. So Posner was handling a big patent fight: one filed by Apple against Motorola for patent infringement concerning (of course) smartphones, down in the Northern Illinois district court. As we've discussed at length in the past, there are a whole bunch of patent disputes concerning smartphones, with companies suing each other in the courts or seeking injunctions from the ITC. This case was one of the "main events," especially considering Google's purchase of Motorola.

So it's pretty interesting to see that Posner has told everyone he's dumping the case. The trial was supposed to start on Monday, but he released a statement saying that there's nothing worth reviewing at a trial, and that he's dismissing the case with prejudice (meaning it can't be refiled), and effectively saying (in much nicer language) that the whole thing is a joke. The note concerning this says he'll issue a full ruling within a week -- though, he says that "in the course of... preparation I may change my mind" on the reasoning for the dismissal. Still, he lays out the basics, which are that there's simply nothing worth discussing. As he puts it: "neither party can establish a right to relief." Apple has admitted that "it cannot prove damages for the alleged infringement" of two of the patents, that two other patents do "not create a genuine issue of material fact" that would allow a trial to move forward and, with the final patent, Apple's evidence of damages "fails to create a genuine issue of material fact."

This isn't a huge surprise, since Posner's statements in filings from a few weeks ago certainly suggested his annoyance that a lawsuit had been filed over these patents. As quoted by Jeff Roberts at GigaOm, Posner had hit back at claims from both sides with pretty strong language:

[re a slide-to-unlock patent] Apple’s .. argument is that “a tap is a zero-length swipe.” That’s silly. It’s like saying that a point is a zero-length line.

Motorola’s contention that the term has a “plain and ordinary meaning” is ridiculous; Motorola seems to have forgotten that this is a jury trial.

The statement from Posner also rejects the idea that, outside of the damages question, "injunctive relief" (blocking one another from offering the products) was reasonable, stating that it would "impose costs disproportionate to the harm" and "would be contrary to the public interest."

Roberts also notes that, in a bit of interesting timing, Posner had just a few days ago posted a blog post discussing the importance of capitalism, but noting that our version of capitalism is lacking in many ways -- with him specifically calling out the "dysfunctional patent system" as one of a litany of problems with the way we've embraced "capitalism."

Posner has certainly always appeared to recognize that intellectual property law could be abused, but this seems like a strong indication that he's realizing just how widely it is being abused under today's patent system.

Filed Under: damages, itc, richard posner, scotus
Companies: apple, motorola

Federal Appeals Court Rejects Illinois' Eavesdropping Law As Likely Violating The First Amendment

from the good-for-them dept

We've been covering Illinois' ridiculous "anti-eavesdropping" law, which has been used a few times against individuals who record the police in public. For reasons that are beyond me, Illinois' attorney general has been not only quick to use the law (often in a very vindictive manner), but also has been pretty adamant in his defense that it was a perfectly reasonable law (despite other rulings that make it clear that recording police is perfectly reasonable). A few state courts have been rejecting the law as unconstitutional, but now a federal appeals court has weighed in and suggested that the law may violate the First Amendment. For now, it has simply sent the case back to the lower court to reconsider:

The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s freespeech and free-press guarantees.

It's good to see more and more courts rejecting these cases that clearly serve no purpose other than to scare off whistleblowers. Frankly, the state government should have recognized this long ago and not only dumped such a law, but then refused to bring such cases or stand behind such a ridiculous and unconstitutional law.

Unfortunately, this ruling was not unanimous among the three judge panel. Well respected appeals court judge Richard Posner -- who had already expressed concerns that if people were allowed to film the police, they might continue to do so -- disagreed with his colleagues and wrote a dissent on the ruling. Posner's argument seems to hinge on the idea that police might discuss private things in public places (not that any of the cases to date seem to involve that), and thus he fears that a wholesale rejection of the law goes too far. Even so, that seems like a bizarre ruling. Why should others get into legal trouble (and face jailtime) just because someone decided to discuss private info in public? Shouldn't the onus be on the person making those statements not to have revealed them in public?

Posner uses the dissent to launch an attack on supporters of a strong First Amendment, arguing that such an interpretation is inconsistent with how the Bill of Rights was written and would obliterate all sorts of laws that go up against the First Amendment. That seems like a rather extreme extrapolation.

Even today, with the right to free speech expanding in all directions, it remains a partial, a qualified, right. To make it complete would render unconstitutional defamation law, copyright law, trade secret law, and trademark law; tort liability for wiretapping, other electronic eavesdropping, and publicly depicting a person in a “false light”; laws criminalizing the publication of military secrets and the dissemination of child pornography; conspiracy law (thus including much of antitrust law); prohibitions of criminal solicitation, threats and fighting words, securities fraud, and false advertising of quack medical remedies; the regulation of marches, parades, and other demonstrations whatever their objective; limitations on free speech in prisons; laws limiting the televising of judicial proceedings; what little is left of permitted regulation of campaign expenditures; public school disciplining of inflammatory or disruptive student speech; the attorneyclient, spousal, and physician-patient privileges in cases in which an attorney or spouse or physician would like to speak but is forbidden by the privilege to do so; laws making medical records confidential; and prohibitions against the public disclosure of jurors’ names in cases in which jurors might be harassed. All these legal restrictions of free speech are permitted

He goes on to point out that recording the police in public may make them not be able to do their job:

An officer may freeze if he sees a journalist recording a conversation between the officer and a crime suspect, crime victim, or dissatisfied member of the public. He may be concerned when any stranger moves into earshot, or when he sees a recording device (even a cell phone, for modern cell phones are digital audio recorders) in the stranger’s hand. To distract police during tense encounters with citizens endangers public safety and undermines effective law enforcement.

That seems like a pretty extreme hypothetical, and a nonsensical one once you think about it. If police are so distracted by someone filming them in public, they either shouldn't be in that job or need better training. It's hard to see how Posner's argument makes much sense, so I'm glad he was outvoted by his fellow judges, but his interpretation of the First Amendment is still worrisome.

Filed Under: eavesdropping, first amendment, illinois, richard posner