White House Releases Public Comments On IP Enforcement

from the mixed-bag dept

You may recall that, at the end of March, the White House's "IP Czar" (technical "Intellectual Property Enforcement Coordinator"), Victoria Espinel, had asked for public comments on how best to enforce intellectual property issues. While we were quite concerned that the tone of the request for comments presupposed a lot of questionable things (i.e., more enforcement is automatically "better"), we encouraged people to send in their thoughts. I shared my letter and also pointed people to the fantastic letter sent by the NetCoalition and CCIA -- as well as the ridiculous letter sent by the RIAA, MPAA and the Screen Actors guild.

JJ sends over the news that the White House has now made all of the public comments available. There are a lot. I went through the list and opened a bunch at random (as well as picking out some names of people or companies I recognized to see what they had to say). It seems like plenty of people on both sides of the equation weighed in -- often in response to calls from organizations. On the "enforce copyright more!" side, there were a bunch of photographers and independent musicians, who showed up via the Copyright Alliance or the Association of Independent Musicians. On the "be careful" side, there were a bunch of people who clearly used Public Knowledge's example letter (though, many added to it, or explained why they wanted to reinforce what PK said).

I'm not really sure how helpful those letters really were on either side, as they didn't add too much to the conversation. The folks responding to the call from the Copyright Alliance didn't really answer any of the questions from Espinel. They often just said "my business is in trouble, you must help me!" which isn't very convincing. At times, they went to extreme lengths, like this guy, who tried to convince Espinel that having his photographs copied was the same thing as if he had stolen her car. Very convincing. On the flip side, while I like the folks at Public Knowledge, and perhaps there's value in numbers of people saying the same thing, I think it would have been nicer if more people wrote their own thoughts out.

Anyway, here were a few that caught my eye, good or bad (all links to filings are pdf files):

• The filing from the Center for Democracy and Technology was really fantastic. Almost on the level of the NetCoalition filing. I like how it goes through the long list of technologies that were targeted by the entertainment industry as being potential destroyers of their industry which had to be stopped -- including the VCR, the mp3 player, the DVR, search engines and more.
• The filing from the American Library Association is also quite good. It points out that there's a big difference between "costs to private companies" and "costs to the public good." And, as for the entertainment industry's studies on "losses":

  The fundamental flaw of these studies is that they beg the question of whether a particular private business interest is entitled to government protection for perpetual, stable profits regardless of changing business conditions. The mere fact of declining profits in one business model does not constitute a cognizable harm that government must step in to remedy. Government intervention in any area has costs for taxpayers, and in this area there are added costs to the public when IP policy becomes further slanted in favor of rightsholders and against public access and use.

• I was really disappointed in the filing from Beggars Group, the UK-based record label. While I fully expected most record labels who filed to support stronger enforcement, Beggars has actually shown itself to be more reasonable than others in embracing modern technology -- and it's filing is strange in that it totally attacks the DMCA's safe harbors as being totally unfair even as it admits that those safe harbors have created huge new businesses that have created massive consumer value. So, I'm at a loss. Is Beggars really suggesting that because others figured out smart businesses, the government should now punish them in favor of Beggars?
• eBay's filing is basically a big ad for eBay.
• The Mississippi Attorney General, Jim Hood's filing is so filled with fear mongering as to be laughable. It's opening sentence -- and I am not kidding -- compares copyright infringement to the death of a child. It goes on to cite the widely debunked studies that claim copyright infringement supports terrorists and organized crime. This isn't so much a response to Espinel's questions as it is a (fictional) horror story to scare little children.
• There's an awful lot in Intel's filing -- some good and some bad -- but I was pretty shocked to see the statement that Intel believes "another threat to the appropriate protection of famous marks in the U.S. is the expansion of parody as a defense...." Really? I recognize that Intel is a pretty big trademark bully, but it's really claiming that parody as a defense is going too far?
• Google's filing is pretty good, though I felt it could have been stronger on a few points. Still, it reinforces the point that business models are adapting to the changing technology marketplace, and that we should be quite careful that any enforcement program does not harm freedom of speech or expression.
• Perhaps the input from Ray Charles' estate isn't too surprising -- in that it talks up the importance of all the royalties they keep collecting for Charles' music -- but given the fact that Charles himself clearly infringed widely on others copyrights to create the very origins of soul music, and talked up the value of "copying" other musicians, it's pretty disappointing and seems to go against his legacy.
• I have to admit, I was a bit confused as to why the Military Order of Foreign Wars is such a big supporter of stronger IP enforcement.
• Of course, not everyone in the military thinks that way. I thought Steve Cupp's filing (from a Navy email address) showed that there is quite a lot of concern that copyright law has gone way too far, and is now solely being pushed by lobbyists designed to prop up certain businesses.
• There were some odd ones, like the filing from Om Records that basically says "we don't know how to compete, please make ISPs pay us."
• It was nice to see Oxfam America's filing focus on why the US should stop trying to force every other country to copy US intellectual property laws, noting that (contrary to what you'll hear some lobbyists say) the TRIPs agreement says that members should be "free to determine the appropriate method" of implementing the agreement.
• I thought Bill Waggoner's filing was nice in that he called out that not all infringement is equal, and lumping safety issues of counterfeit medicines in with people file sharing video games is pretty ridiculous and unhelpful in crafting reasonable policy.

Anyway, there were a lot more obviously, and beyond some of the organization names, I was basically picking at random. But it might be fun to "crowdsource" reviewing some of the filings. If you have a chance take a look at the list and see if you find any interesting filings, and let us know about them in the comments.

Filed Under: enforcement, intellectual property, ip czar

Must Read: CCIA Sets US IP Czar Straight On Intellectual Property

from the wow dept

A few days ago, I posted the letter I submitted to the White House IP Czar, Victoria Espinel, concerning her request for comments on the strategic plan for IP enforcement. It was a bit troubling that the questions asked in the RFC focused solely on increased enforcement and the amount of harm done by infringement -- as if it never even occurred to folks that increased enforcement might not be best for culture or the economy, and that there may also be mitigating benefits to infringement. I tried to make that clear in my filing, and it was great to see folks like Public Knowledge and the EFF submit comments as well -- but the really wonderful filing came from the NetCoalition and CCIA, which we discuss below. First, though, it's worth noting that the entertainment industry also made its demands...

The RIAA, MPAA and the Screen Actors Guild teamed up to submit their own filing, and as the LA Times noted "it's a doozy." Consider it a wishlist of protectionist, anti-consumer, anti-innovation policies, basically demanding that the White House prop up their own businesses, because of their unwillingness to adapt:

Among other things, the "creative community organizations" urged that:

• The federal government encourage ISPs to use, and companies to develop, monitoring, filtering, blocking, scanning and throttling technologies to combat the flow of unauthorized material online;
• Copyright holders be able to combat infringement by making a database of their works available to service providers, rather than submitting individual takedown notices. And once a work is taken down, service providers should be expected to employ "reasonable efforts" to prohibit users from uploading or even linking to them again;
• Copyright owners be able to block unauthorized streams of live broadcasts without going through the formal notice-and-takedown process;
• The federal government press search engines, social networks, hosting companies, domain name registrars and online advertising and payment networks to cooperate with copyright holders on efforts to combat piracy ("Encouraging these intermediaries to work with content owners on a voluntary basis to reduce infringements, and assuring these intermediaries that such cooperation will not be second-guessed, should be top priories that call for the personal intervention of senior government officials if necessary.");
• A federal interagency task force work with industry to interdict prerelease bootlegs of Hollywood blockbusters and crack down on U.S. services that assist foreign piracy hotbeds;
• States adopt "labeling laws" that "defined unauthorized online file sharing and streaming as a felony," giving state and local law enforcement jurisdiction to go after unauthorized copying online;
• States use consumer protection laws to go after file-sharing sites that "expose consumers to intrusion, viruses and revelation of personal data."

You can read the entire entertainment industry filing below, but be ready to laugh at the highly questionable claims:
IPEC Filing: RIAA, MPAA, SAG However, if you want read something enjoyable you should check out the incredibly long, but ridiculously thorough and brilliant filing from the NetCoalition and CCIA. It's over 100 pages long, but every last page is worth reading. It says everything I wish I could have said in my letter, but does so in excruciating detail, with tremendous sources to back up each point. It kicks off by going through a detailed list of "fallacies" found in the request for comment itself, as well as in the typical complaints from the entertainment industry, including:

• The objectivity fallacy: highlighting how the studies from the entertainment industry that pretend to be objective are anything but -- and tend to greatly, if not ridiculously exaggerate the problem.
• The lost sale fallacy: of course, demolishing the industry's desire to pretend that each act of infringement represents a "lost" sale.
• The causation fallacy: showing how the entertainment industry always places the blame for its problems on infringement, even if there's little evidence to support that any troubles in the industry were due to infringement. Instead, the filing points out that there are many, many reasons why some companies in the industry have run into trouble that have nothing to do with infringement.
• The innovation fallacy: dismantling the industry's claim that infringement destroys jobs and discourages innovation, noting that it is historically evident that competition breeds greater innovation than gov't-backed monopolies, which can be shown to create economic rents and dead-weight loss.
• The industry size fallacy: a favorite of the entertainment industry, which bundles in all sorts of unrelated industries that just sorta barely are touched by intellectual property (furniture!) to make the industry seem huge, in an effort to imply the importance of extra protectionism. But the filing points out how flawed the methodology is, pointing to the CCIA's own (awesome) use of the same methodology to show that exceptions to copyright contribute more to the economy than the "copyright industries." This part also points out that if the industry really is so big, then it should be well positioned to withstand any challenges...
• The equivalence fallacy: picking apart how the entertainment industry likes to lump all forms of infringement into one "evil" bucket, without ever acknowledging that there are very, very different types of infringement, and understanding the differences is key in determining actual harm and any "enforcement" strategies.
• The theft fallacy: once again reinforcing that infringement is a different beast than theft, and even the Supreme Court recognizes this... though the entertainment industry seems unwilling to admit it.
• The silo fallacy: elegantly highlighting how the industry loves to talk up losses in CD sales, while totally ignoring how other parts of the business, such as live performances, continue to grow. It also highlights how, despite CD and DVD sales dropping, the number of albums and movies being made has vastly increased.
• The relevance fallacy: laying out the argument that, even if you accept the industry's claims of losses, they're often submitting aggregate data that includes a variety of different factors and information that may be distorting the direct impact on specific areas, and setting policy based on such aggregate data could be quite damaging.

Seriously, the entire document is wonderful. It feels like it should be published as a book, and should become required reading for anyone ever writing about, litigating or setting intellectual property policy. You can read the whole thing below:
IPEC Comments: CCIA & NetCoalition Of course, after going through the fallacies, the filing gets to specific policy recommendations, wisely going back to the ProIP bill's language, highlighting how the purpose of the IP Czar is really supposed to be about true criminal infringement and counterfeiting, and arguing that any enforcement should be focused on those issues, rather than stepping in on civil disputes in what is, effectively, a business model problem. The filing also points out that diplomats enforcing US IP policy around the world are often uneducated in the balance of interests that IP law is supposed to hold, and frequently just push for greater laws and restrictions, without understanding the harm it causes. Along those lines, the CCIA takes the time to express its grave concerns over ACTA -- noting its broad scope and potential harm both in the US and abroad.

The conclusion of the document sums up everything nicely:

The spread of the global Internet has facilitated the unauthorized and at times infringing distribution of certain forms of intellectual property, especially copyright-protected content. The ease and minimal cost of copying makes meaningful enforcement costly and difficult. This widely recognized problem has stirred passionate debate about how the problem should be handled by copyright owners, the government, and third parties. This problem is amplified and complicated by the importance of both the content and Internet industries in the U.S. export market, as well as and demands for the U.S. to assert leadership at the international level. This creates a danger of rigid, oversimplified policies toward infringement that (a) make little sense in other intellectual property domains, and (b) undermine the perceived legitimacy of the global intellectual property system.

The solutions to the real and perceived problems the disruptive technology of the Internet has caused for certain entertainment and luxury goods companies cannot be solved by greater government intervention or by shifting more costs to Internet companies. Rather, the solution lies in the evolution of business models to adapt to the new realities of the marketplace.

Seriously. This is an absolute must read, start to finish.

Filed Under: enforcement, fallacies, intellectual property, ip czar
Companies: ccia, mpaa, netchoice, riaa, sag

More ACTA Leaks: Would Create Special Organization To Manage Worldwide Copyright Laws

from the new-world-order dept

The more of ACTA that leaks, the worse it seems. KEI has the details on another portion of ACTA that had not leaked yet, which focuses on setting up new institutions that would manage ACTA after it was implemented. Basically, it would be an ongoing organization tasked with continuing to update ACTA's rules -- sort of a parallel organization to WIPO, which already exists, but which has recently committed the mortal sin of actually listening to consumer rights groups. The scary part is that this group would be allowed to amend ACTA provisions on the fly. And, while this new organization can "extend invitations" to governments, it's still being debated what non-governmental organizations will be able to take part. KEI notes that the "USTR has told members of Congress it is their intention to marginalize the participation by consumer interest organizations in the new forum," though does not provide a citation for this point.

Either way, it seems like the goal here is to create an extra-governmental body that effectively controls copyright law around the globe, with little input from the actual governments or the people they represent. And, of course, if the folks involved in ACTA negotiations are any indication of who will be involved in this group, you can assume that they will be strong supporters of the viewpoint of the legacy industries: that intellectual property law is designed solely to protect those industry's business models, and not to promote the wider progress of culture and the economy.

Filed Under: acta, copyright, enforcement

Stretching The FCC's Mandate: FCC Should Not Be Involved In Copyright Enforcement

from the beyond-the-mandate dept

We were a bit concerned last year when the FCC held hearings which were technically about the national broadband policy, but instead focused on copyright, something that is clearly well outside the FCC's mandate -- something the FCC already got in trouble for a few years back with its attempt to mandate a "broadcast flag." However, there are now some additional concerns that this administration is ignoring the limits of the FCC's mandate. As you may recall, a few weeks back, the Justice Department -- at the urging of the entertainment industry -- set up a special IP task force to deal with "the rise of intellectual property crime." However, some are quite worried about how this task force intends to go about this.

Copycense points us to a letter sent to the Justice Department by the Center for Democracy and Technology, which noticed that, in the announcement of this new task force, the Justice Department said it intends to work with the FCC on intellectual property enforcement. That's a problem:

What's wrong with that? It's an invitation to major mission creep. The FCC's job is to execute and enforce federal communications law. It has no authority and no role in enforcing other laws. Lots of unlawful activity -- from intellectual property infringement to racketeering to securities fraud to deceptive advertising -- may occur over or using communications networks. But that doesn't make it the FCC's job to police such activity. The FCC's focus is, and should remain, promoting the availability of high quality communications capabilities in the United States -- not policing what users do with those capabilities.

In addition, the only reason to involve the FCC would be to force the entities the FCC regulates -- communications providers, and in particular ISPs -- to start actively policing I.P. infringement. Having government force ISPs to take on this new role should raise serious red flags. The idea that ISPs don't serve as gatekeepers or content censors, and aren't themselves responsible for what users do on the network, has been a bedrock principle that underpins the Internet's open and innovative nature. Casting it aside would be a serious mistake and a radical departure from U.S. communications policy.

Filed Under: copyright, enforcement, fcc, ip task force, justice department
Companies: fcc

Administration Asks For Public Input On Intellectual Property Enforcement

from the hopefully-they'll-listen dept

As part of the mis-named ProIP act, the newly created IP Enforcement Coordinator (generally called the IP Czar) is supposed to help figure out what an effective "intellectual property enforcement strategy" would be. While we have questions about why this position or this plan is really needed in the first place, here's a bit of good news: rather than just doing the typical consult with industry lobbyists, the administration is, again, asking for public comment (pdf):

This request for comments and for recommendations for an improved enforcement strategy is divided into two parts. In the first, the IPEC seeks written submissions from the public regarding the costs to the U.S. economy resulting from intellectual property violations, and the threats to public health and safety created by infringement. In the second part, the IPEC requests detailed recommendations from the public regarding the objectives and content of the Joint Strategic Plan and other specific recommendations for improving the Government's intellectual property enforcement efforts. Responses to this request for comments may be directed to either of these two parts, or both, and may include a response to one or more requests for information found in either part.

The link above has more details, and the comments are due by Wednesday, March 24, 2010.

Now, I know when I posted my comments submitted to the USTR about the Special 301 process, a number of commenters wondered if the USTR would care, or even bother to look at, let alone consider, comments from the public beyond industry lobbyists. It is a valid concern. And while I do still wonder how much public comments will play a role in the actual strategy (compared to industry responses), in this case, the IPEC specifically reached out to Techdirt to let us know about this request for comment, to see if we would be interested in alerting our readers of their opportunity to take part. Now, the cynical response is that this is just window dressing -- and it's a lot easier to ask for comments from the public than to listen to them, but the fact that they are specifically reaching out to this community (among others) at least suggests an interest in what folks here might have to say. With that in mind, I'm hopeful that some of you will take the time to submit thoughtful comments on the subject.

Filed Under: copyright, copyright czar, enforcement, intellectual property, victoria espinel

ACTA's Internet Chapter Leaks; And, Now We See How Sneaky The Negotiators Have Been

from the sneak-that-right-in-there... dept

Reports spread this weekend that the ACTA's all-important internet enforcement chapter had leaked. You can download the PDF from that link, or check it out below: From here, you can see why this is still quite a dangerous document -- and why there's been so much misinformation from its supporters, insisting that it "can't change US law," or even (as stated by the USTR) that it won't include three strikes. It doesn't. Sort of. But it does make it very very difficult for any online service provider to get safe harbors without doing something along those lines. Let's explore deeper...

Sections 2 and 3 are the key ones to be concerned about here. First, they talk up the importance of making sure that third party liability is in the law. Now, technically, they are right that this wouldn't change US law -- as current case law does have a third party liability standard. But the actual text of the legislation does not. Now it is entirely possible that Congress could decide the courts were mistaken in their decision to blame third party service providers for actions of their users, and clarify the law to get rid of third party liability. After all, Congress did look at a bill to add third party liability to copyright law a few years back (the so-called INDUCE Act) and did not pass it. Thus, it could come to pass that Congress feels an inducement standard does not make sense, and goes ahead and corrects the courts for interpreting current copyright law to include such a standard.

But if ACTA passes, that won't be possible. The first thing you'll see is that the same copyright defenders who are saying ACTA is no big deal and we're worrying about nothing, will immediately start screaming at the top of their lungs about our "international obligations" such as ACTA, which prevent us from removing third party liability from our copyright law.

This is a big deal, because third party liability is a mess, and a perversion of justice. It's a way to blame a third party for actions they did not commit, just because it's easier. From a pure position of properly placing liability on the party who did the "wrong," third party liability is a perversion.

However, ACTA then gets worse. In section 3, it tries to set up the "safe harbors" by which a service provider might avoid liability. In the US, we already have this, with the DMCA's notice-and-takedown provision, which is widely abused. Yet, to qualify for the safe harbors in ACTA, the bar is set much higher. This is hidden pretty deep, and you might miss it (this is done on purpose) if you're not reading carefully. It's in section 3(b)I and in footnote 6. Basically, it says that for a service provider to get safe harbors, it must implement a policy to deal with infringing works -- and in footnote 6, it gives the concept of "termination" of service in the case of repeat infringers as an example of the type of measure. That, of course, is three strikes rules.

So, no, three strikes laws aren't "mandatory," but the only example given of a proper policy that would qualify a service provider for safe harbors, is three strikes. Guess what everyone's going to implement?

And, of course, if some country is so bold as to not implement such a thing, and to point out that ACTA says they do not need to implement three strikes, you can bet that the very same ACTA defenders will complain, and point to ACTA as a reason why they must do so. You can see this already in the way those same ACTA defenders treat Canada, in claiming that its current treaty agreements obligate it to put in place DMCA-like notice-and-takedown provisions, along with anti-circumvention rules -- despite the fact that the agreements say no such thing directly.

Speaking of notice-and-takedown and anti-cirumvention, both make their appearance in the ACTA document. The following subsection, again, highlighting what a service provider must do to get safe harbors, discusses takedowns:

an online service provider expeditiously removing or disabling access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification.

Michael Geist points out that this is a notice and takedown provision, though you could argue that it could be read as just notice-and-notice -- where the person uploading content has the right to respond before the takedown occurs. Still, the document is telling: note that the takedown is to occur on alleged infringement rather than on actual evidence or conviction of infringement. This should be seen as problematic as well. Given how often the notice-and-takedown system is abused, and given any judicial system that believes in innocence until guilt is proven, you would think that it should not be allowed to require a takedown without conviction.

Section 4 then discusses anti-circumvention and would lock in many of the mistakes of the DMCA that are causing serious problems today and need to be fixed -- not forced to stay due to "international obligations." The issue here is that it again will place the blame on the tools provider, since it includes just the manufacturing of tools for circumventing DRM or other technical protection measures. It's a bad law that blames those who make the tools, rather than those who use them. Furthermore, it makes no exceptions for the lawful use of the tools. You can use circumvention tools to make a perfectly legal backup of content that you bought. But, under the DMCA, the act of making that perfectly legal backup copy is illegal due to the circumvention. That's a huge problem that not only would be further locked into US law and blocked from change, but would then be forced on other countries who have (smartly) recognized how problematic this is.

In the end, the leaked document appears to show exactly what people feared it would (and, again explains why the USTR and the lobbyists, who helped draft the document, wanted to keep it so secretive). It takes a very fluid and evolving situation in copyright law and tries to lock it in place, despite tons of evidence of the harm done by certain aspects of that law, and to then spread those same mistakes to other countries. Furthermore, it ratchets up what is required to qualify for "safe harbors" to make it such that, while three strikes may not be required, no other option is presented. It's a multiple choice question with "A" as the only answer. And the USTR and entertainment industry lobbyists want to tell us that makes it not mandatory.

Filed Under: acta, anti-circumvention, copyright, dmca, enforcement, notice and takedown, secondary liability, third party liability, three strikes

Debunking Reasons For ACTA Secrecy: Just Enforcement Doesn't Tell The Whole Story

from the open-things-up dept

We've had a series of posts debunking all of the bogus claims from supporters of ACTA and the current secrecy involved in the ACTA process -- such as how this secrecy is "normal" (no its not), how this is "just an executive agreement, not a treaty" (the difference is effectively meaningless) and how this can't change US law so there's nothing to worry about (even if it doesn't change US law directly, it can prevent fixing problems in the law, while putting pressure on legislators to change the law anyway). Well, here's another one, courtesy of the folks over at Public Knowledge.

One of the claims that's been made in defense of the "secrecy" around ACTA is that the agreement is really just about "enforcement," rather than any legal changes. While we've already questioned how true that claim really is, John Bergmayer, does a nice job explaining why we should be worried about an agreement on "enforcement" anyway: because the question of enforcement is meaningless compared to the actual procedure of enforcement. Bergmayer quotes Rep. John Dingell to make the point:

"I'll let you write the substance ... you let me write the procedure, and I'll screw you every time."

The fear here is that while ACTA might not technically change US law, it could easily change US procedures and policies on "enforcement" allowing the effective change in the law, without people even realizing it. He quotes Professor Thomas Main, saying:

"procedural reforms can have the effect of denying substantive rights without the transparency, safeguards and accountability that attend public and legislative decision-making."

And, indeed, this is what we've see in the leaked drafts of ACTA. While most (though, certainly not all) of the proposals that have been leaked don't necessarily include a direct change to US law, they often do subtly word things so that existing rights, safeguards and accountability are left out, just as Prof. Main warns. To make sure those subtle changes do not have serious impacts that let certain special interests (in the words of Rep. Dingell) "screw" the public, doesn't it make sense to reveal the contents of what's being negotiated?

Filed Under: acta, enforcement, laws, procedures, restrictions

When Declining To Enforce Your Intellectual Property Rights Strengthens Your Market Position

from the well,-quite-often dept

Over the years we've shown many examples of times when it makes much more business sense not to enforce your intellectual property rights, but reader Jerry Leichter sends in another example. It discusses how Apple is benefiting from not going after those who copy its iPhone UI, suggesting that Apple's aggressiveness in such lawsuits with PCs helped Microsoft win the personal computer war in the 80s and 90s:

The more different competitors Apple faces in smartphones, the better it fares. One major reason why Apple lost its pioneering position in graphical desktop PCs to Microsoft in the 90s was related to the company's efforts to stamp out rivals in "look and feel" lawsuits during the late 80s that shut down windowing products from HP and GEM, leaving Microsoft free rein to consolidate a competitive-free monopoly juggernaut around its own Windows product.

In this decade, Apple has conspicuously refrained from attacking rivals on copyright or patent infringement issues in both the iPod and iPhone markets, outside of defensive measures it has taken against patent challenges from Creative and more recently Nokia. Competing in the market has historically worked out much more successfully for Apple than trying to compete in court.

I think it's a good point -- and accurate that Apple is better off not enforcing its IP, and that Microsoft was helped by Apple's mistake last time around, but I doubt that's why Apple isn't doing it this time around. My guess is that the reason it didn't bother this time was because it lost so badly when it tried to go after Microsoft for copying the "Windows" look and feel. Still, it is a good example where sometimes it really does help to have more people recognize your user interface -- even if sometimes they're using it from someone else.

Filed Under: business models, enforcement, intellectual property, market position
Companies: apple, microsoft

Compare And Contrast: How GPL Enforces Violations vs. How RIAA/MPAA/BSA Enforce Violations

from the it's-a-bit-different dept

While we've discussed how extreme views in the open source community can, at times, rival the way the entertainment industry acts towards those who violate licenses, reader Nick Coghlan writes in to point to an article that highlights how different they are in many cases, with Bradley Kuhn, the technical director of the Software Freedom Law Center (SFLC), putting forth new guidelines that encourage people not to jump to conclusions when they see potential violations, and to give the benefit of the doubt to anyone they suspect of violating the license. Compare that to the tens of thousands of threat letters sent out by the RIAA, at times with little real evidence.

Filed Under: copyright, enforcement, gpl, licenses, violations
Companies: riaa, sflc

White House Gives Banks One Year To Stop Online Gambling Transactions, Despite Protests

from the pushing-through-bad-rules dept

Despite significant questions from other elected officials about the plan, the White House has, in fact, approved new regulations requiring banks to stop any financial transactions dealing with online gambling. They've given banks one year to figure out a way to deal with it -- which hopefully gives Congress enough time to change the law.

The regulations make little sense for a variety of reasons:

1. It's still not clear why online gambling should be made totally illegal, rather than simply regulated, like in many countries.
2. It makes no sense to put the burden and liability on financial institutions to figure out what transactions involve online gambling.
3. It makes even less sense to dump this on banks right now, especially as many are struggling merely to survive in this financial climate. Adding an extra burden of making them figure out if every transaction involves online gambling seems unnecessary (and perhaps unusual).
4. Congress had asked the White House for more time to explore the impact of these regulations, but the White House used a lobbyist to aggressively push for these regulations to be put in place as quickly as possible.

Congress and the new administration will hopefully take up this issue next year, and remove this unnecessary burden from banks before it was set to go into effect.

Filed Under: enforcement, online gambling