Record Labels Continue Their Attack On Spanish File Sharing Programmers

from the just-can't-stop dept

We've seen a series of efforts by the big four major record labels to shut down file search engines and software in Spain, despite the fact that such systems have been ruled legal in the country in the past. In one case, they were able to get one guy to cop a guilty plea and get jail time, because he couldn't afford to fight the charges. The latest such story is actually getting covered by the Associated Press, as the big four record labels are going after yet another programmer who created some file sharing apps, trying to charge him with "unfair competition" and demanding $17.5 million. Part of his defense is that Spain has a music levy on blank media, and thus it should be legal for anyone to download (other cases in Spain have ruled that personal downloading isn't a violation) -- and, thus, not a violation to create tools for such downloads. It'll come as not much of a surprise, that the record labels disagree. They'd prefer to get their piracy tax and shut down any attempts to share music at the same time.

Filed Under: bittorrent, file sharing, injunctions, search, spain

Recording Industry Tries To Shut Down Search Engine In Spain Without Allowing It To Defend Itself

from the fairness-not-needed dept

Last month, we wrote about how the recording industry was able to pressure the operator of a BitTorrent search engine into pleading guilty despite not actually having broken the law. The site in question didn't host any infringing files, but merely linked to a variety of files. Previous lawsuits had shown that, in Spain, merely linking is not infringement. But with the cost of a huge court case, the operator found it cheaper to just settle. Emboldened by this, it appears the industry is going after other sites as well, despite the earlier court rulings finding such sites legal. TorrentFreak notes that in one case, against the search engine Agujero.com, the local recording industry reps demanded an immediate injunction against the site, without even allowing the site's operators to give its side. Luckily, the judge did not fall for this, and after a hearing in which both sides presented their position, is allowing the site to continue operating while the trial continues, noting that shutting down the site: "might cause irreparable prejudice to the defendant." It's good to see another reasonable ruling, though troubling that the recording industry tried to push for an immediate injunction.

Filed Under: bittorrent, file sharing, injunctions, search, spain
Companies: agujero.com

Judge Temporarily Blocks Sale Of RealDVD

from the who-does-this-help? dept

In the lawsuit between the movie studios and RealNetworks over Real's DVD ripping software, RealDVD, it appears that a judge has issued a temporary injunction against Real, keeping the company from distributing the software until the judge has had a chance to read through the various documents. A more complete decision allowing or disallowing the sale prior to a trial should come on Tuesday. Of course, the movie studios will claim that Real should be barred from allowing the software to be sold because it will cause "irreparable harm." That, of course, is ridiculous. Real's software only lets you make limited backups, by putting its own DRM on the copies. If someone really wants to make backups, and Real's software isn't available thanks to an injunction, then they'll most likely get a copy of other DVD ripping software that doesn't even include the limitations that Real's does. In other words, in taking RealDVD off the market, as the studios would like, it actually would probably lead to more movies being copied without DRM than if RealDVD were on the market. On a separate note, it appears that Real's decision to rush to court and file for a declaratory judgment on this case was a wise move. The lawsuit has been moved from Southern California, where the studios filed suit later in the day, to Northern California, where Real filed suit in the morning.

Filed Under: dvd ripping, injunctions, realdvd
Companies: mpaa, realnetworks

Cable Modem Patent Hoarder Accused Of Pretending To Enter The Market

from the sneaky,-sneaky,-sneaky dept

Rembrandt IP is a patent hoarding firm that we've written about a few times before. It buys up patents and then sues companies to get them to pay licensing fees. However, one thing that's been really interesting about Rembrandt is how it's been figuring out new and creative ways to skirt recent Supreme Court rulings that seek to lessen the impact of such non-practicing entities. Two years ago, in the landmark MercExchange case, the Supreme Court ruled that courts shouldn't automatically grant injunctions preventing the sale of products, even if they're found to have violated a patent.

This didn't get rid of injunctions entirely, but basically (reasonably) noted that the courts should take into account whether or not the product on the market was actually harming the market for the patent holder's products. Thus, if you were a non-practicing entity (patent hoarding firm), it didn't make sense to ban another company's products from being in the market -- it just made sense to fine them. After all, since the patent holder didn't have a product on the market, what harm was being done to the patent holding firm's market? Patent hoarding companies flipped out, because the threat of an injunction barring the sale of products was one of the biggest weapons they had (it's part of what made RIM pay $612 million to NTP, even though the USPTO had said that NTP's patents were invalid).

So, how is Rembrandt getting around this ruling that takes away the threat of injunction as a weapon? Well, earlier this year, we noted a sneaky trick where it sued two companies in a single market over the same patent, but gave each of them a choice: whoever settled first, would get to join the lawsuit against the other one. Then, since the side that joined was a practicing entity, it could push for an injunction against the other. Sneaky, right?

Well, now it gets better. Rembrandt also happens to hold some patents on cable modem technology. In this case, Rembrandt bought the patents from a former AT&T subsidiary that had an agreement with the cable companies to license the patents under reasonable terms. Rembrandt is now claiming that since it bought the patents, it no longer needs to abide by that earlier agreement (despite the fact that the FTC has already slammed other patent holders for claiming similar things). Rembrandt, however, is pushing ahead and has sued a ton of cable companies, broadcasters and cable modem makers over this patent -- but how can it get an injunction since it's not a practicing entity?

Well, how about pretending to be a practicing entity?

Broadband Reports points us to the news that Rembrandt has convinced a small Taiwanese cable modem manufacturer to make a batch of cable modems with Rembrandt's name on them, which have now been sold to a tiny ISP in Seattle Tacoma. So, now, Rembrandt can try to claim that it's really "in the market" (even though it has admitted publicly to being a non-practicing entity) and can push for an injunction against all the companies it's suing. Those companies are calling out this practice as a "sham," and it will be interesting to see how the court rules. If the court rules that this practice allows Rembrandt to ask for injunctions, we may start seeing other patent hoarding firms quickly finding "partners" who can white label a few products just for the sake of appearing to be a "practicing" entity rather than a non-practicing one.

Filed Under: cable, docsis, injunctions, non-practicing entities, patents
Companies: rembrandt, rembrandt ip

Patent Hoarder Pitting Competitors Against Each Other For Injunction Rights

from the now-look-what-you've-done dept

One of the more important Supreme Court decisions concerning patents was 2006's MercExchange ruling, where the Supreme Court announced that courts shouldn't automatically grant an injunction against a company if it was found to be violating patents. This made a lot of sense, as many patent hoarders who produced no actual goods, would use the threat of an injunction (which could completely kill a business) to force the company to settle. However, the court recognized that in some cases (certainly not all), an injunction would do much more harm than good, and wasn't called for. This was especially true in cases where the patent holder wasn't making any actual products, since an injunction wouldn't actually clear up any competitive wrong -- it would just deny the market the ability to get the product. Of course, it hasn't taken long for some patent hoarders to come up with a rather ingenious (if ridiculous) way around this. It's all pointed out in a post by the Patent Troll Tracker who details how a patent hoarding firm played two competitors off of each other to grant one the rights to get an injunction on the other.

Here's how the plan works. First, the patent hoarding firm, Rembrant, sues two competitors in the contact lens space: Bausch & Lomb and Ciba. Then, it works out a settlement deal with one of those two firms -- in this case, B&L. However, part of that settlement (beyond some sort of licensing agreement) is to hand over the patent's injunction rights to B&L, while keeping the actual patent and everything else associated with it in the hands of Rembrant. Then, what you have is a patent infringement lawsuit against Ciba, just like before. Except, since B&L is a practicing competitor rather than just a patent hoarder, the company can ask for an injunction. In effect, as Ciba notes in its own filing on the matter, Rembrant sued the two competitors and then offered one a big carrot not just to settle, but to flip sides in the court case itself in order to use the very patent it had been sued over against a competitor. You have to imagine that Thomas Jefferson didn't see this coming when he laid out the details of the original US patent system.

Filed Under: injunctions, patents
Companies: bausch & lomb, ciba, rembrant

As Expected, Judge Denies eBay Injunction In MercExchange Case

from the no-surprises-there dept

Last summer, the Supreme Court made an important ruling in the eBay-MercExchange patent lawsuit, saying that just because there's patent infringement it doesn't mean that a judge should automatically issue an injunction barring the sale of a product. That was an important decision because it brought back some balance to patent lawsuits, because without that ruling, a tiny component of a product could cause an entire product to be pulled from the market. However, the Supreme Court only said that an injunction might not make sense. It never actually ruled on whether it did in that particular case. Now, the lower court has indeed ruled that no injunction is deserved and eBay can continue to use its "Buy It Now" feature that MercExchange claims a patent on. On a second patent, the court ruled that it made sense to wait for the USPTO to rule on whether or not the patent was valid before making a decision. This is basically half-a-win for eBay, though not particularly surprising. It is still too bad that the concept of "Buy It Now" was considered worthy of patent protection in the first place, but that's an entirely different debate.

Filed Under: injunctions, patents, supreme court
Companies: ebay, mercexchange