Have The Courts Done Enough To Stop Patent Trolling?

from the not-yet dept

As we've noted recently, a series of Supreme Court decisions over the past decade, culminating in the big Alice v. CLS Bank ruling in July, has clearly put a serious crimp on the patent trolling business. Vague, broad, dangerous patents are falling like flies, new patent trolling lawsuits are on the decline and the US Patent Office is rejecting a lot more questionable software and business method patent applications. All good news. But is it enough?

There are some who are claiming that the courts have effectively "solved" the problem -- so no new legislation is needed. Of course, it seems interesting to me that these same individuals often appear to be those who insisted there never was a problem in the first place -- and who are also arguing that the courts have gone too far. Economist James Bessen -- who has done tremendous work in detailing the problems of patent trolls -- has an article in the Atlantic where he notes that, for all the positive advancements thanks to the Supreme Court, there's still much more to be done, as plenty of patent trolling lives on:

But don't shed too many tears for the patent trolls just yet. While these changes are a real positive step, they are also limited. While it's true that the Patent Office is granting several hundred fewer business method patents each month, it is still granting record numbers of software patents overall. Most of the litigation is over software patents, not business method patents: One study estimates that business method patents constitute only 10 percent of the patents used in lawsuits by “non-practicing entities” including patent trolls. And while the number of lawsuits has decreased, there are still over four times as many as in 1990, before the surge in software patenting began following court decisions in the mid-1990s. Furthermore, Matt Levy of the Computer and Communications Industry Association told me that in only one case has a victorious defendant recovered legal costs—thanks specifically to the April Supreme Court decisions.

It’s possible that the Supreme Court decisions will eventually have a greater impact on patent trolls than they have so far. For example, the Alice decision pertains to abstract software patents generally, not just to business method patents. It all depends on how the lower courts, particularly the Court of Appeals for the Federal Circuit, interpret and apply these decisions. But that is the very court which has allowed so many broad and vague software patents starting from the 1990s.

Indeed, the efforts by the Supreme Court have been helpful in moving things in the right direction, but so far it's only been a slight course shift, rather than really fixing the underlying problems of the patent system. Trolls are still able to get away with shaking down companies over questionable patents, because it's still ridiculously expensive to fight back -- even if there's a marginally better chance of recovering fees in truly egregious cases. Too many questionable patents are still getting through, and even if courts may finally be more willing to reject questionable "on a computer" patents, it's still a risky and expensive proposition to go to court.

Patent trolling is still a serious problem that many actual innovators face. The Supreme Court may have opened the door to fixing some of the very worst problems, but that doesn't mean all of the problems have gone away. In fact, nearly all of the problems are still there in some form.

Filed Under: courts, james bessen, patent trolls, patents, supreme court

Supreme Court Quotes Eminem As It Explores The Difference Between Free Speech And 'True Threats'

from the free-speech-ain't-free dept

A few months back, we discussed how the Supreme Court was going to hear the case of Anthony Elonis, who had been convicted for making "threats" on Facebook directed at his ex-wife. Elonis, who claims to be an aspiring rap artist, says they were just lyrics, and he wasn't making any actual threat. On Monday, the Supreme Court had the oral arguments, and it gave Chief Justice John Roberts a chance to demonstrate his rapping skills [pdf] by quoting Eminem. The government's lawyer, Michael Dreeben tried to play it off as different, because people would be entertained by Eminem, but that just raised more questions:

CHIEF JUSTICE ROBERTS: What about the language at pages 54 to 55 of the Petitioner's brief? You know, "Dada make a nice bed for mommy at the bottom of the lake," "tie a rope around a rock," this is during the context of a domestic dispute between a husband and wife. "There goes mama splashing in the water, no more fighting with dad," you know, all that stuff.

Now, under your test, could that be prosecuted.

MR. DREEBEN: No. Because if you look at the context of these statements

CHIEF JUSTICE ROBERTS: Because Eminem said it instead of somebody else?

MR. DREEBEN: Because Eminem said it at a concert where people are going to be entertained. This is a critical part of the context. It wasn't as if he stated it to her in private or on a Facebook page after having received a protection from abuse order. It wasn't as if he appropriated a style of rap that wasn't anything that he had been doing previously in the marriage and all of a sudden tried to express violent statements that way.

In the context, I think any reasonable person would conclude at a minimum that there is ambiguity about these statements being a serious intention of an expression to do harm. And this is critical here. We're talking about an area in which if the jury finds that it's ambiguous, it has to acquit. It has to conclude that this is how these statements should be interpreted.

CHIEF JUSTICE ROBERTS: Well, yes, but you're dealing with some very inflammatory language. The question is whether or not the jury is going to be swept away with the language as opposed to making the subtle determinations you've been talking about.

Justice Samuel Alito seemed ready to toss the First Amendment right out the window because, apparently, anyone can use it:

Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist.

And so then you are free from prosecution.

This reminds me of the claims about how a "source protection" law for journalists wouldn't be any good because anyone can claim to be a journalist. The answer, again, should be so what? Beyond the fact it's crazy unlikely that everyone who is actually threatening their ex-wives are going to make it rhyme and claim it's just verse, the actual issue at law here makes this question totally irrelevant. The issue is whether or not there was a "true threat" at all, and if Elonis actually intended to do anything or if he was just mouthing off.

And, indeed, the court does wrestle with what the hell "true threats" mean, with Justice Kennedy, in particular, finding that concept (from the Supreme Court of the past) to be a particularly unhelpful phrasing. Right out of the gate at the beginning he noted:

I'm not sure that the Court did either the law or the English language much of a good service when it said "true threat." It could mean so many things. It could mean that you really intend to carry it out, A; you really intend to intimidate the person; or that no one could possibly believe it.

Meanwhile, Justice Ruth Bader Ginsburg noted the problem of showing someone's mindset:

How does one prove what's in somebody else's mind? This case, the standard was would a reasonable person think that the words would put someone in fear, and reasonable people can make that judgment. But how would the government prove whether this threat in the mind of the threatener was genuine?

Again, I don't think anyone can (or should) prove what's really going on in someone's mind, but it seems like it's perfectly reasonable to explore if there is any other evidence to support the idea that someone is out to do someone harm, that goes beyond just posting about it on Facebook (which, frankly, seems like a really dumb way to plan out how to harm someone, seeing as you've made it pretty clear you've done any such harm). But, even that doesn't fully cover the issue in the case, which focused more on whether or not Elonis wanted his wife to be afraid, rather than if he was actually intending to do her harm (and, yes, there's a fine line mixed in there somewhere).

No doubt, Elonis did an awful lot of things that were clearly designed to upset his ex-wife. But how much of that is protected online speech? As always, reading the tea leaves from oral arguments is not a wise move, so it's tough to say which way the Court will actually decide. But, as Sarah Jeong recently noted in a great writeup for The Verge, this case could have a widespread impact on issues related to online harassment and bullying online, no matter which way the ruling goes. That article compares some of Elonis' "lyrics" and actions with the threats often posted by internet trolls threatening to kill or rape people they disagree with -- and, further, notes that the increased discussion around these issues may play into how whatever test the Court settles on will be applied in practice. In other words, this case, no matter how it's decided, is likely to have a widespread impact.

Filed Under: anthony ellis, anthony kennedy, free speech, harassment, john roberts, lyrics, ruth bader ginsburg, samuel alito, social media, supreme court, threatening speech, true threats

Third Time's A Charm: CAFC Finally Says You Can't Just Add 'On The Internet' And Get A Patent

from the took-'em-long-enough dept

It looks like the Ultramercial saga may finally be ending. As we've been covering for many years, Ultramercial held a patent (7,346,545) on watching an ad to get access to content, and it sued lots of companies. While a lower court rejected the patent, CAFC (the appeals court for the Federal Circuit, which handles all patent cases) overturned that ruling. The key issue: is something patentable if you take a common idea and just add "on the internet." CAFC said yes. The Supreme Court asked CAFC to try again following its own ruling in the Mayo case (which said you couldn't patent medical diagnostics). But CAFC still found the patent to be valid. Finally, earlier this year, following the Alice ruling, the Supreme Court gave CAFC a third try to get it right.

It seemed rather obvious to us that it was the Supreme Court saying, "Hey, would you reject this patent already?" and finally, CAFC got the message. On the third try, CAFC dumped the patent as invalid. More specifically, it goes all the way back to the original district court ruling, allowing the patent to be declared invalid on a motion to dismiss (i.e., before going through the massive expense of a big trial). This is very helpful, since it gives people sued for patents a path to success that won't put them too deep in the hole financially. Traditionally, courts were reluctant to toss out patents that early in the process, and patent holders relied on that fact, knowing that the legal bills for anyone they sue will be astronomical, even on a bogus patent. Now, however, courts can toss out those patents much more quickly. CAFC says so. Check out the full ruling:

We conclude that the limitations of the ’545 claims do not transform the abstract idea that they recite into patent-eligible subject matter because the claims simply instruct the practitioner to implement the abstract idea with routine, conventional activity. None of these eleven individual steps, viewed “both individually and ‘as an ordered combination,’” transform the nature of the claim into patent-eligible subject matter. See Alice, 134 S. Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1297, 1298). The majority of those steps comprise the abstract concept of offering media content in exchange for viewing an advertisement. Adding routine additional steps such as updating an activity log, requiring a request from the consumer to view the ad, restrictions on public access, and use of the Internet does not transform an otherwise abstract idea into patent-eligible subject matter. Instead, the claimed sequence of steps comprises only “conventional steps, specified at a high level of generality,” which is insufficient to supply an “inventive concept.”

There's an even more interesting concurring opinion from Judge Haldane Mayer, that I kind of wish was the full opinion. It points out that patents that don't "promote the progress" are unconstitutional.

The Constitution’s Intellectual Property Clause is at once a grant of power and a restriction on that power.... Unless we are to assume that the constraints explicit in the Intellectual Property Clause are mere surplusage, we are bound to ensure that the patent monopoly serves “[t]o promote the Progress of Science and useful Arts,”... “This is the standard expressed in the Constitution and it may not be ignored.”

Mayer's ruling is the one that also clearly lays out why letting courts invalidate patents so early on is so important.

From a practical perspective, addressing section 101 at the outset of litigation will have a number of salutary effects. First, it will conserve scarce judicial resources. Failure to recite statutory subject matter is the sort of “basic deficiency,” that can, and should, “be exposed at the point of minimum expenditure of time and money by the parties and the court,”....

Second, resolving subject matter eligibility at the outset provides a bulwark against vexatious infringement suits. The scourge of meritless infringement claims has continued unabated for decades due, in no small measure, to the ease of asserting such claims and the enormous sums required to defend against them....

Finally, and most importantly, turning to section 101 at the outset protects the public. See Cardinal Chem., 508 U.S. at 101 (emphasizing the public interest in preventing the “grant [of] monopoly privileges to the holders of invalid patents” (footnote omitted)). Subject matter eligibility challenges provide the most efficient and effective tool for clearing the patent thicket, weeding out those patents that stifle innovation and transgress the public domain. As a general matter, trial courts have broad discretion in controlling their dockets and in determining the order in which issues are to be adjudicated. But the public interest in eliminating defective patents is an “even more important countervailing concern[],” Cardinal Chem., 508 U.S. at 99, which counsels strongly in favor of resolving subject matter eligibility at the threshold of litigation.

Furthermore, the opinion notes that courts should get away from simply presuming patents are valid:

Indeed, applying a presumption of eligibility is particularly unwarranted given that the expansionist approach to section 101 is predicated upon a misapprehension of the legislative history of the 1952 Patent Act. Those who support a “coarse filter” approach to section 101 often argue that the Act’s legislative history demonstrates that Congress intended statutory subject matter to “include anything under the sun that is made by man.” See, e.g., AT&T Corp. v. Excel Commc’ns, Inc., 172 F.3d 1352, 1355 (Fed. Cir. 1999). Read in context, however, the legislative history says no such thing. See Mayo, 132 S. Ct. at 1303–04. The full statement from the committee report reads: “A person may have ‘invented’ a machine or a manufacture, which may include anything under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled.” H.R. Rep. No. 1923, 82d Cong., 2d Sess., at 6 (1952) (emphasis added). Thus, far from supporting an expansive approach to section 101, the relevant legislative history makes clear that while a person may have “invented” something under the sun, it does not qualify for patent protection unless the Patent Act’s statutory requirements have been satisfied.

Good stuff all around... and very different from the CAFC of the past.

Filed Under: cafc, motion to dismiss, on the internet, patent eligibility, patentable subject matter, patents, supreme court
Companies: alice, cls, ultramercial, wild tangent

Supreme Court Refuses To Hear Sherlock Holmes Case: Holmes Is Now (Mostly) Public Domain

from the the-case-of-the-missing-public-domain dept

This isn't a huge surprise, but the Supreme Court has declined to hear the case concerning whether or not Sherlock Holmes is in the public domain. As many news sites are reporting, this more or less means that the character of Sherlock Holmes is considered public domain. It's not quite that simple, of course. Technically, all but the last book of Sherlock Holmes works (covering a few stories) is in the public domain according to the 7th Circuit appeals court. That means the character attributes that are new in those last works are not in the public domain. Also, conceivably, a similar challenge in another circuit could lead to a different conclusion, which might lead the Supreme Court to eventually weigh in another time. But, for now, it's mostly safe to assume that the basic character is in the public domain.

So, now, who's going to create some awesome new Sherlock Holmes stories?

Filed Under: copyright, leslie klinger, public domain, sherlock holmes, supreme court
Companies: conan doyle estate

The Supreme Court Succumbs To Truthiness, Leading Librarians And Stephen Colbert To Bicker

from the a-made-up-icus-curiae dept

A couple months ago, someone sent over an interesting Virginia Law Review article from Alli Orr Larsen about how the Supreme Court is increasingly listening to amicus curiae briefs (friend of the court briefs) from parties not actually engaged in lawsuits -- and at times that's problematic because the briefs are not always, you know, factual. We frequently write about amicus curiae briefs, detailing where we agree or disagree with them, leading to some interesting discussions. When done well, these briefs really can add valuable insight. But, sometimes they allow some ridiculous claims to make it into the discussion. As the abstract of Larsen's paper notes:

The trouble with amicus facts, I argue, is that today anyone can claim to be a factual expert. With the Internet, factual information is easily found and cheaply manufactured. Moreover, the amicus curiae has evolved significantly from its origin as an impartial “friend of the court.” Facts submitted by amici are now funneled through the screen of advocacy. The result is that the Court is inundated with eleventh-hour, untested, advocacy-motivated claims of factual expertise. And the Justices are listening. This article looks at the instances in recent years when a Supreme Court Justice cites an amicus for a statement of fact. It describes the way the brief, rather than the underlying factual source, is cited as authority and the failure of the parties to act as an adequate check.

That's definitely interesting, and certainly opens up the Supreme Court to responding to "truthiness"-type arguments. Given that, it's perhaps not that surprising that Stephen Colbert, the man who coined "truthiness" in the very first episode of his (soon to be ending) TV show, did a segment on Larsen's law review article a few weeks ago.

In that segment -- which we'd embed if Colbert/Comedy Central offered SSL embeds (they don't appear to) -- he calls out a few of the examples from the paper, including an amicus brief filed by the Library Copyright Alliance in the Kirtsaeng case, concerning the potential impact on foreign-printed books now found in US libraries (the fear was that if the Supreme Court ruled in favor of Wiley, it would mean that merely lending out foreign-printed books would potentially be infringing). Thankfully, the Court went the other way, but Larsen's paper calls out that the amicus brief from the libraries cited 200 million foreign-printed books from a blog and the blog in question is "no longer available."

Jonathan Band, the author of that amicus brief, took offense to his "hero," Stephen Colbert challenging his brief and hit back with an amusing letter that points out that the blog post actually is still available -- it just moved. Also, it was written by a known expert in the field who actually had access to the data necessary to make such an estimate. Still, Band jokingly mocks the whole experience of being mocked by Colbert and hits back with a few more amusing, less persuasive, counterpoints:

But then I realized that you, my hero, were actually criticizing the brief because it cited to a blog post as the source for the fact that U.S. libraries possess 200 million foreign-printed books, and the post was no longer available. Now that I have recovered from the shock and humiliation of this criticism, I offer the following response:

1. What difference does it make if the source can’t be found? This is the perfect example of truthiness. The number we cited sounds right, and we’re a bunch of librarians and librarians never lie.
2. The law professor who wrote the article that pointed out the missing blog post, Allison Orr Larsen, teaches at William & Mary Law School. That’s a silly name for a law school; it’s like Dick & Jane Law School.
3. It’s not our fault that the blog post was moved.
4. The blog post is actually still available in the website’s archive.
5. The person who wrote the blog post, Ed O’Neil, is an expert on the subject, and has access to the catalogues of the collections of every library in the country.
6. Wiley’s lawyers had ample opportunity to challenge the number, but didn’t. In fact, no one has challenged the accuracy of the number.

So, while the issue of the Supreme Court relying on amicus briefs is definitely an interesting one to follow, it appears that Larsen -- and Stephen Colbert -- may have misfired on this particular one.

Filed Under: alli orr larsen, amicus briefs, amicus curiae, facts, jonathan band, kirtsaeng, stephen colbert, supreme court, truthiness

US Solicitor General, Don Verrilli, Tells Supreme Court That Of Course You Can Infringe On An Invalid Patent

from the shockingly-unshocking dept

Nine years ago, the US Supreme Court ruled in the Grokster case in favor of the movie studios, effectively expanding copyright law to include an "inducement" standard that is not present in the actual text of the law (in fact, Congress had just rejected an attempt to add some inducement language to copyright law in the form of the INDUCE Act). A big part of the reasoning by the Supreme Court was to pull from the inducement standard that was found in patent law, and say it applies to copyright law:

For the same reasons that Sony took the staple-article doctrine of patent law as a model for its copyright safe-harbor rule, the inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

It's worth noting that the lawyer who represented the studios in the Grokster case was... Donald Verrilli, a favorite lawyer of both the MPAA and RIAA in cases that involved expanding copyright law. After President Obama was elected, Verrilli was tapped for the Justice Department and then to be Solicitor General -- basically the White House's lawyer for the Supreme Court.

Given all that, it's perhaps no surprise, even if it's disappointing, to see that Verrilli is still pushing to massively expand the nature of inducement. In a long and ongoing patent infringement case, Commil v. Cisco, the appeals court for the federal circuit (CAFC) ruled last year that the lower court had erred in jury instructions concerning whether or not Cisco was guilty of "inducing" patent infringement, because the jury instructions said that Cisco could be guilty since "Cisco knew or should have known that its actions would induce actual infringement." CAFC said that the "should have known" part was problematic, because that's a negligence standard which isn't appropriate here. Commil appealed on that point (there are other points being appealed, but let's stick to that one). Back in May, the Supreme Court asked Verrilli if he wanted to weigh in, and a few weeks ago he did.

Take a guess what he argued? Yup. He argued that the Supreme Court should take the case and overturn the CAFC ruling (something we normally appreciate, but not this time), as he apparently believes a very broad definition of inducement is absolutely fine. That this would further help a bunch of his former clients goes unstated.

The court of appeals erred in holding that a defendant’s good-faith belief that the patent in question is invalid is a defense to inducement liability under Section 271(b). That holding is inconsistent with the Patent Act’s text and structure, and it may undermine Section 271(b)’s efficacy as a means of deterring and remedying infringement. This Court’s review is warranted.

Got that? That's Verrilli, using the power of the US government behind him, to argue that you can still be found guilty of "inducing infringement" even if you have a "good faith belief" that the underlying claim is totally invalid. The filing relies heavily on a different case, the Global-Tech v. SEB, which had found that in order to induce infringement you had to actually know that the action was patent infringement. By any rational discussion, that ruling should support Cisco's argument, that a good faith belief in invalidity shouldn't lead to inducement. But Verrilli spins in the other way.

As explained above, Global-Tech does not resolve whether the defendant must know in addition that the induced conduct actually infringed the patent. But regardless of how that question is ultimately decided, Section 271(b) neither requires knowledge of the patent’s validity nor suggests that a good-faith belief in invalidity is a proper defense. The inducee’s unauthorized performance of all steps of a patented method constitutes "infringement," even if the patent is ultimately found to be invalid. Thus, even if Section 271(b) is held to require proof that the defendant knew the induced conduct would constitute actual "infringement," the defendant’s good-faith belief in the invalidity of the patent would not suggest that such knowledge was lacking.

Even more unfortunately, Verrilli attacks the point that CAFC makes that you can't infringe on an invalid patent. CAFC noted "it is axiomatic that one cannot infringe an invalid patent." Nuh-uh, claims Verrilli. Of course you can infringe on an invalid patent:

A patent is infringed, regardless of its validity if the defendant has practiced all of its elements without authorization.

He says all invalidity does is "preclude liability from that infringement." Got that? Even if the patent is totally invalid, you can still infringe on it, you just can't be held liable for it. Welcome to upside down world -- where infringement is the standard, and not infringing on an invalid patent is some sort of exception or defense against liability.

There's a lot more in there, but he seems particularly upset that the CAFC ruling might actually lead to more defendants pointing to a good faith belief that they weren't infringing as a defense (and even cites the Grokster case). Instead, it seems he (and by his voice, the power of the US executive branch) believes that even if you're totally sure that a patent is invalid, you can still be found guilty of inducing infringement of it. If his theory is true, it actually seems like a huge indictment of just how ridiculous patent law is that such a result is considered possible, let alone reasonable.

Filed Under: don verrilli, infringement, invalidity, patents, solicitor general, supreme court
Companies: cisco, commil

The Verge Takes John Oliver's 'Dog Supreme Court' And Remixes The Aereo Hearing

from the nicely-done dept

Earlier this week, we wrote about how John Oliver had not only "solved" the problem of the Supreme Court not allowing cameras in the court (but releasing audio tape) by setting up a fake Supreme Court with dogs, but had also made the raw footage available and asked other news media to make use of them. I had wondered if anyone would actually take him up on it. There's at least one. The good folks over at The Verge have remixed the Supreme Court's hearings on Aereo, and it's pretty damn entertaining. They even make use of the shot of "Dog" Justice Alito humping "Dog" Justice Kagan. Nicely done.

Filed Under: dogs, john oliver, supreme court, the verge
Companies: aereo

John Oliver Has The Solution To The Supreme Court's Refusal To Videotape Supreme Court Hearings: Dogs

from the not-cats? dept

For many years, we've discussed the pure ridiculousness of the Supreme court's adamant refusal to allow cameras in the courtroom, along with the Justices' questionable justifications of the ban. Now it appears that John Oliver has taken up the issue as well, but unlike those just whining about it, Oliver (thanks to the resources of HBO) has a possible "solution." Dogs. Oliver starts out mocking Justice Antonin Scalia's reason for barring cameras: that people would just see 15- or 30-second clips from the arguments, taking things out of context. Of course, as Oliver points out, that makes absolutely no sense, since the Supreme Court already releases audio of the hearings, and thus we already do hear the same clips -- it's just that they're generally paired with artistic renderings of the Justices instead of the actual video.

His solution -- using "an almost immoral amount of resources" -- is to present video representations of the entire Supreme Court... using dogs (and a couple of birds in supporting roles). And, Oliver claims, they're making those videos freely available to any other news provider who would like to create complete reenactments of any court case in a way that is cute and guaranteed to draw more attention than the court renderings, or, hell, actual videos if they were ever allowed. You can see the full ten minutes of footage (and, yes, I watched it all) right here: That video also, helpfully, links to the Supreme Court's oral arguments audio page for people to download. And the video description notes:

Please feel free to use it, post your videos, and tag them #RealAnimalsFakePaws so we can find them.

The only disappointment is that whoever put it up, still officially left it under a "standard" license, rather than the Creative Commons license that YouTube makes available. Still, nice move by Oliver and his team.

Filed Under: cameras, cameras in court, dogs, john oliver, supreme court, video, video of supreme court

Judge To Aereo: Hey, Didn't The Supreme Court Make It Clear That You Guys Are Dead?

from the not-looking-good dept

When the Supreme Court ruling in the Aereo case came out, we noted that beyond the bizarre "looks like a duck" test that the Supreme Court made up on the spot, it also appeared to leave open the possibility that Aereo could survive if it simply added a mere delay to its streaming. That's because a key part of the "looks like a duck" test to make Aereo's service a "public performance" was that the shows were streamed "contemporaneously." As Justice Scalia pointed out in his dissent, without any further clarification in the majority ruling, it certainly sounds like Aereo could just function as a remote DVR and be fine.

Back in the district court this week, however, the same judge who had originally ruled in Aereo's favor, now seems to believe that the Supreme Court's decision completely wiped out Aereo's chances altogether. This is the problem with these kinds of Supreme Court rulings, where they rule with a focus on one particular aspect (in this case "contemporaneous" viewing) and lower courts interpret it to mean all of Aereo was ruled illegal. This same sort of thing happened with the Grokster case, in which the Supreme Court ruled that Grokster was guilty because of its related actions that "induced" infringement, and the RIAA/MPAA and others simply assumed that the court said all file sharing is illegal.

In this case, Aereo went before Judge Alison Nathan to present it with a few different arguments over how the company could stay in business -- either by paying licenses as a cable operator or by time shifting, etc. -- and the judge didn't seem to think any option was available to the company. As the Hollywood Reporter notes, her response was:

"Just as a matter of finality, how many bites at the apple does one get?"

I would think that the answer is as many bites as is legal, no? All of the proposed alternatives by Aereo are clearly in direct response to the Supreme Court's specific "looks like a duck" ruling. Aereo isn't trying to challenge that, it's looking to work within the rules the Court established. Yet, once again, we see people taking Aereo's efforts at complying with the specific law as laid out by the courts, and interpreting it as somehow circumventing the law.

Either way, Aereo has the stigma of "lost at the Supreme Court" attached to it, and it appears that any attempted solution to actually comply with the Supreme Court's ruling will be seen as not being allowed because it's merely trying to get "another bite at the apple."

Filed Under: cable, contemporaneous, copyright, looks like a duck, remote dvr, streaming, supreme court
Companies: aereo

Supreme Court Asked To Make It Clear That APIs Are Not Copyrightable

from the fingers-crossed dept

Back in May, the Court of Appeals for the Federal Circuit (CAFC), long famous for messing up patent law, decided to take a short break and mess up copyright law as well, by declaring APIs copyrightable (the case ended up before CAFC instead of the 9th Circuit because it originated as a patent case, even though all the patent issues were gone). The district court had ruled otherwise, and that judge, William Alsup, had actually gone into great detail to explain why copyright shouldn't apply to APIs. Alsup had learned to code Java to better understand the case, and you could basically tell from his ruling that he was quite worried that appeals court judges wouldn't take the time to truly understand the issues at play. He was right. Making APIs copyrightable is bad news for innovation in a variety of ways.

But, of course, CAFC is not the final stop in the line (even if some patent trolls wish it were). As was fully expected, Google has now asked the Supreme Court to hear an appeal on the case. Google's petition is a good read highlighting the "disarray" in the various different circuits about whether or not copyright law applies to APIs. The law itself (Section 102(b)) is pretty explicit: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Many of us clearly think that APIs fit under this as a system or method of operation. But, others disagree.

Some courts follow the statute’s plain meaning, holding that Section 102(b) precludes copyright protection for all systems or methods of operation, including those in computer programs. See, e.g., Lotus, 49 F.3d at 815. Like the Federal Circuit, however, other courts have rejected the statutory text and held that Section 102(b) is merely a reminder of the dichotomy between ideas (which are not copyrightable) and expressions of ideas (which generally are). See, e.g., Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1234 (3d Cir. 1986). In those courts’ view, a “method of operation” embodied in a computer program is copyrightable so long as its creator could have designed it in different ways.

Having shown the circuit split to help entice the Supreme Court to hear the case, Google then explains why it's simply wrong to interpret the law to say that APIs are covered by copyright.

The Federal Circuit’s error is confirmed by the extent to which it would eliminate a fundamental distinction between patent and copyright law—and thus allow copyright to be used as an end-run around the limits on patent protection, including this Court’s recent decisions on patent-eligibility.

Basically, you may be able to patent a system and method (as many patents themselves note in their titles), but it shouldn't be copyrightable.

While the Supreme Court has a history of being pretty bad on copyright law, it has been pretty good (especially lately) on patent law -- in particular smacking down CAFC -- and the Google filing plays up to that fact, arguing that this is just another case of CAFC interpreting the law incorrectly.

The Federal Circuit’s error is all the more glaring because it is essentially the same error for which this Court has repeatedly reversed the Federal Circuit in patent cases. The court of appeals criticized the district court for confusing “the threshold question of what is copyrightable—which presents a low bar—and the scope of conduct that constitutes infringing activity.” App. 17. It then transformed Section 102(b)’s limits on copyright eligibility into just one of several factors to be considered as part of a fair-use defense....

The Federal Circuit had similarly held that the limits on patent eligibility are minimal and that other requirements of the Patent Act do the real work in limiting monopoly protections. See, e.g., Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859, 869 (Fed. Cir. 2010) (referring to Section 101 of the Patent Act as a “coarse eligibility filter”). This Court has repeatedly corrected that misperception in recent years, stressing the importance of enforcing Section 101’s limits on patentable subject matter—including for software-related patents. See, e.g., Alice, 134 S. Ct. 2347; Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013); Mayo, 132 S. Ct. 1289; Bilski v. Kappos, 130 S. Ct. 3218 (2010). But the Federal Circuit would now eviscerate the analogous limitation on copyright eligibility for some of the same types of works.

Hopefully the Supreme Court recognizes this, takes the case and... (most importantly) doesn't make things worse.

Filed Under: apis, cafc, copyright, supreme court
Companies: google, oracle