Elsevier Wants To Stop Indian Medics, Students And Academics Accessing Knowledge The Only Way Most Of Them Can Afford: Via Sci-Hub And Libgen

from the copyright-is-not-an-inevitable,-divine,-or-natural-right dept

Last month Techdirt wrote about some ridiculous scaremongering from Elsevier against Sci-Hub, which the publisher claimed was a "security risk". Sci-Hub, with its 85 million academic papers, is an example of what are sometimes termed "shadow libraries". For many people around the world, especially in developing countries, such shadow libraries are very often the only way medics, students and academics can access journals whose elevated Western-level subscription prices are simply unaffordable for them. That fact makes a new attack by Elsevier, Wiley and the American Chemical Society against Sci-Hub and the similar Libgen shadow library particularly troubling. The Indian title The Wire has the details:

the publishing giants are demanding that Sci-Hub and Libgen be completely blocked in India through a so-called dynamic injunction. The publishers claim that they own exclusive rights to the manuscripts they have published, and that Sci-Hub and Libgen are engaged in violating various exclusive rights conferred on them under copyright law by providing free access to their copyrighted contents.

Techdirt readers will note the outrageous claim there: that these publishers "own exclusive rights to the manuscripts they have published". That's only true in the sense that most publishers force academics to hand over the copyright as a condition of being published. The publishers don't pay for that copyright, and contribute almost nothing to the final published paper save a little editing and formatting: manuscript review is carried out for free by other academics. And yet the publishers are demanding that Sci-Hub and Libgen should be blocked in India on this basis. Moreover, they want a "dynamic injunction":

That is, once a defendant's website is categorised as a "rogue website", the plaintiff won't have to go back to the judges to have any new domains blocked for sharing the same materials, and can simply get the injunction order extended with a request to the court's deputy registrar.

The legal action by publishers against shadow libraries is part of a broader offensive around the world, but there's a reason why they may face extra challenges in India -- over and above the fact that Sci-Hub and Libgen contain huge quantities of material that can unambiguously be shared quite legally. As Techdirt reported back in 2013, a group of Western publishers sued Delhi University over photocopied versions of academic textbooks. For many students in India, this was the only way they could afford such educational materials. In 2016, the Indian court ruled that "copyright is not an inevitable, divine, or natural right", and that photocopying textbooks is fair use.

The parallels with the new suit against Sci-Hub and Libgen are clear. The latter are digital photocopy sites: they make available copies of educational material to students and researchers who could not otherwise afford access to this knowledge. The copies made by Sci-Hub and Libgen should be seen for what they are: fair use of material that was in any case largely created using public funds for the betterment of humanity, not to boost the bottom line of publishers with profit margins of 35-40%.

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Filed Under: academic publishing, academic research, access to knowledge, censorship, copyright, dynamic injunction, india, injunctions, publishers
Companies: american chemical society, elsevier, libgen, sci-hub, wiley

SoftBank Owned Patent Troll, Using Monkey Selfie Law Firm, Sues To Block Covid-19 Testing, Using Theranos Patents

from the and-that's-not-even-all-the-insane-parts dept

Honestly, I wasn't sure how to begin this story or how to fit all the insanity into the title. It's a story involving patents, patent trolling, Covid-19, Theranos, and even the company that brought us all WeWork: SoftBank. Oh, and also Irell & Manella, the same law firm that once claimed it could represent a monkey in a copyright infringement dispute. You see, Irell & Manella has now filed one of the most utterly bullshit patent infringement lawsuits you'll ever see. They are representing "Labrador Diagnostics LLC" a patent troll which does not seem to exist other than to file this lawsuit, and which claims to hold the rights to two patents (US Patents 8,283,155 and 10,533,994) which, you'll note, were originally granted to Elizabeth Holmes and Theranos -- the firm that shut down in scandal over medical testing equipment that appears to have been oversold and never actually worked. Holmes is still facing federal charges of wire fraud over the whole Theranos debacle.

However, back in 2018, the remains of Theranos sold its patents to Fortress Investment Group. Fortress Investment Group is a SoftBank-funded massive patent troll. You may remember the name from the time last fall when Apple and Intel sued the firm, laying out how Fortress is a sort of uber-patent troll, gathering up a bunch of patents and then shaking down basically everyone. Lovely, right?

So, this SoftBank-owned patent troll, Fortress, bought up Theranos patents, and then set up this shell company, "Labrador Diagnostics," which decided that right in the midst of the Covid-19 pandemic it was going to sue one of the companies making Covid-19 tests, saying that its test violates those Theranos patents, and literally demanding that the court bar the firm from making those Covid-19 tests.

A bit more background here: the company they're suing, BioFire, recently launched three Covid-19 tests built off of the company's FilmArray technology. And that's what "Labrador" (read: SoftBank) is now suing over. From the lawsuit:

The Accused Products embody at least claim 1 of the '155 Patent, literally or under the doctrine of equivalents, as set forth below. The further descriptions below, which are based on publicly available information, are preliminary examples and are non-limiting. On information and belief, the FilmArray 2.0, FilmArray EZ, and FilmArray Torch devices operate, together with the FilmArray pouches and software, similarly as pertinent to the non-limiting examples set forth below. On information and belief, the FilmArray EZ operates in substantially the same manner as the FilmArray 2.0, and as such is not separately addressed below. For the purposes of infringement, Plaintiff Labrador's non-limiting examples relating to the FilmArray 2.0 are equally applicable to the FilmArray EZ, albeit with use of at least the RP EZ Panel designed for use with the FilmArray EZ. See BioFire Diagnostics Website, https://www.biofiredx.com/products/the-filmarraypanels/ filmarray-respiratory-panel-ez/.

So, let's summarize: The firm that basically created the mess that is WeWork by dumping billions of dollars into the company, also owns a patent troll that bought up the patents from the sham medical testing firm Theranos, and is now using those patents to sue one of the few diagnostics companies that is actually making a Covid-19 test... in the middle of a pandemic. And, demanding the use of those tests be blocked:

That Defendants be enjoined from infringing the Asserted Patents, or if their infringement is not enjoined, that Defendants be ordered to pay ongoing royalties to Labrador for any post-judgment infringement of the Asserted Patents;

Honestly, I'm used to all sorts of awfulness, but this one piles awfulness upon awfulness, and takes it to a level of pure evil. The lawyers filing this lawsuit on behalf of "Labrador" should remember what they've done -- filing a bullshit patent trolling lawsuit, on behalf of a shell company for a notorious giant patent troll, using patents from a sham company, and using them to try to block the use of Covid-19 diagnostic tests in the middle of a pandemic. I wonder how they sleep at night. For the record, there are two law firms behind this filing. Irell & Manella is the big one, and they list out 7 different lawyers on this complaint: Morgan Chu, Alan Heinrich, Keith Orso, Adina Stohl, Dennis Courtney, Brian Weissenberg and Chaplin Carmichael. Their local firm is Farnan LLP, and the lawyers there are Brian and Michael Farnan. Morgan Chu is the big shot at Irell and runs its litigation group. He should take on much of the responsibility for this awful, awful lawsuit. Farnan LLP was formed by a former federal district court judge, Joseph Farnan, and I'll just note that 4 out of its 6 attorneys, including the two on this case have the same last name.

I understand the need for zealous representation of a client in court, but this seems even more despicable than your every day patent trolling, and people should associate these lawyers names with the truly despicable behavior on display here. Similarly, it should be a reminder of why its a good thing that the Supreme Court decided a decade and a half ago that injunctions are often inappropriate in patent cases. I know that there's an effort underway to have Congress change the law to overrule the Supreme Court decision on that point, but imagine how that would play out in this scenario, in which necessary diagnostic testing might get blocked due to some patent troll with deep pockets.

Filed Under: coronavirus, covid-19, diagnostics, elizabeth holmes, filmarray, injunctions, patent trolling, patents
Companies: biofire, biomerieux, farnan llp, fortress investment group, irell & manella, labrador diagnostics, softbank

California Court Not Yet Ready To Undermine The Entire Internet; Rules Yelp Can't Be Forced To Delete A Review

from the Section-230-not-quite-dead-yet dept

In 2016, Techdirt wrote about a troubling case, Hassell v. Bird, in which a court issued an injunction telling Yelp to delete a review after a lawyer won a default judgment in a defamation case. The court ignored that Section 230 of the CDA says that platforms like Yelp cannot be held liable (and thus can't be legally mandated) to remove content of third parties, and didn't seem to care that Yelp wasn't even a party in the case.

The good news is that Yelp won its appeal of the injunction. The bad news, though, is that it barely won, and the relatively elegant, cogent opinion finding that Section 230 prevented the injunction is tempered in its effect by only being a plurality decision: victorious in its ultimate holding only because of a concurring vote on different grounds that provided a less-than-full-throated endorsement of the plurality's conclusion.

This case began when someone, who the plaintiff Hassell believes to be Bird, had posted a critical review of the Hassell law firm on Yelp that Hassell claimed to be defamatory. Hassell sued Bird and ended up with a default judgment agreeing that it was defamatory. Hassell also got the trial court in San Francisco to issue an injunction ordering Yelp to delete the offending posts. Yelp appealed the injunction on several grounds, including that it never had a chance to be heard by the court before it issued a judgment against it, and because Section 230 should have barred it. After losing at the California Court of Appeals, the California Supreme Court agreed to take up its case, and this week it issued its ruling.

The plurality opinion, which garnered three votes, found it sufficient to invalidate the injunction entirely on Section 230 grounds without having to reach any due process consideration. It cited plenty of prior cases to support its Section 230 analysis, but spent some time discussing the holdings in three in particular: Zeran v. AOL, Kathleen R. v. City of Livermore, and Barrett v. Rosenthal [p. 14-20]. Zeran was an early case construing Section 230 that set forth why it was so important for speech and ecommerce that platforms have this statutory protection for liability arising from their users' content. Barrett v. Rosenthal was a subsequent California Supreme Court case, which similarly construed it. And Kathleen R. was a case where a California Court found that Section 230 precluded injunction relief. These and other cases underpinned the plurality's opinion.

It also made several other points in support of its Section 230 finding. One was the observation that if Section 230 couldn't prevent the non-party injunction against Yelp it would just prompt litigants to game the system by not even bothering trying to name platforms as defendants, since they'd have better luck getting injunctions against them if they did NOT try to sue them than if they did.

The question here is whether a different result should obtain because plaintiffs made the tactical decision not to name Yelp as a defendant. Put another way, we must decide whether plaintiffs’ litigation strategy allows them to accomplish indirectly what Congress has clearly forbidden them to achieve directly. We believe the answer is no. [p. 22]

And part of the reason the answer is no, is that Section 230 was never intended to only limit damages liability against a platform; it also was meant to prevent injunctions as well. [p. 26-27].

An injunction like the removal order plaintiffs obtained can impose substantial burdens on an Internet intermediary. Even if it would be mechanically simple to implement such an order, compliance still could interfere with and undermine the viability of an online platform. (See Noah v. AOL Time Warner, Inc., supra, 261 F.Supp.2d at p. 540 [“in some circumstances injunctive relief will be at least as burdensome to the service provider as damages, and is typically more intrusive”].) Furthermore, as this case illustrates, a seemingly straightforward removal order can generate substantial litigation over matters such as its validity or scope, or the manner in which it is implemented. (See Barrett, supra, 40 Cal.4th at p. 57.) Section 230 allows these litigation burdens to be imposed upon the originators of online speech. But the unique position of Internet intermediaries convinced Congress to spare republishers of online content, in a situation such as the one here, from this sort of ongoing entanglement with the courts. [p. 28]

And it had to prevent injunctions, in order for platforms and the online speech they facilitate to be protected:

Perhaps the dissenters’ greatest error is that they fail to fully grasp how plaintiffs’ maneuver, if accepted, could subvert a statutory scheme intended to promote online discourse and industry self-regulation. What plaintiffs did in attempting to deprive Yelp of immunity was creative, but it was not difficult. If plaintiffs’ approach were recognized as legitimate, in the future other plaintiffs could be expected to file lawsuits pressing a broad array of demands for injunctive relief against compliant or default-prone original sources of allegedly tortious online content. Injunctions entered incident to the entry of judgments in these cases then would be interposed against providers or users of interactive computer services who could not be sued directly, due to section 230 immunity. As evinced by the injunction sought in Kathleen R., supra, 87 Cal.App.4th 684, which demanded nothing less than control over what local library patrons could view on the Internet (id., at p. 691), the extension of injunctions to these otherwise immunized nonparties would be particularly conducive to stifling, skewing, or otherwise manipulating online discourse — and in ways that go far beyond the deletion of libelous material from the Internet. Congress did not intend this result, any more than it intended that Internet intermediaries be bankrupted by damages imposed through lawsuits attacking what are, at their core, only decisions regarding the publication of third party content. [p. 30-21]

Unfortunately the rest of the Court was not as amenable to the plurality's application of Section 230 as a defense against the injunction. Even the concurrence by Justice Kruger, which provided the fourth vote in favor of overturning the injunction, did so, as Eric Goldman observed, with potentially some qualification of the Section 230 analysis ("I express no view on how section 230 might apply to a different request for injunctive relief based on different justifications."). [concurrence p.1]. But both the concurrence and the plurality recognized that there were problems with trying to hold a non-party platform like Yelp responsible for complying with the injunction to take down content that had also been directed to the defendant Bird. For the plurality it was a straightforward violation of Section 230.

[I]t is also true that as a general rule, when an injunction has been obtained, certain nonparties may be required to comply with its terms. But this principle does not supplant the inquiry that section 230(c)(1) requires. Parties and nonparties alike may have the responsibility to comply with court orders, including injunctions. But an order that treats an Internet intermediary “as the publisher or speaker of any information provided by another information content provider” nevertheless falls within the parameters of section 230(c)(1). In substance, Yelp is being held to account for nothing more than its ongoing decision to publish the challenged reviews. Despite plaintiffs’ generic description of the obligation they would impose on Yelp, in this case this duty is squarely derived from “the mere existence of the very relationship that Congress immunized from suit.” [p. 24]

For the concurrence the platform's relationship with the defendant was too attenuated and not the sort of agency relationship where it may be proper to hold a third party responsible for complying with an injunction on another.

Plaintiffs, as well as [dissenting] Justice Liu, argue that the injunction naming Yelp is valid because it merely makes explicit that Yelp, as an entity “through” whom Bird acts, is obligated to carry out the injunction on her behalf. But the trial court made no finding that Bird acts, or has ever acted, “through” Yelp in the sense relevant under Berger, nor does the record contain any such indication; we have no facts before us to suggest that Yelp is Bird’s “agent” or “servant.” It is true and undisputed, as plaintiffs and Justice Liu emphasize, that Bird’s statements were posted on Yelp’s website with Yelp’s permission. And as a practical matter, Yelp has the technological ability to remove the reviews from the site. These facts might well add up (at least absent section 230) to a good argument for filing suit against Yelp and seeking an injunctive remedy in the ordinary course of litigation. But the question presented here is whether these facts establish the sort of legal identity between Bird and Yelp that would justify binding Yelp, as a nonparty, to the outcome of litigation in which it had no meaningful opportunity to participate. Without more, I do not see how they could. [concurrence p. 7]

The plurality also rejected the theory raised by the trial court and pushed by the dissent that the platform had somehow "aided and abetted" the defamatory speech. If this argument could prevail, Section 230 would become a nullity, since every platform enables user expression, and not all that expression is necessarily entirely legal.

In his dissent, Justice Cuéllar argues that even if the injunction cannot on its face command Yelp to remove the reviews, the removal order nevertheless could run to Yelp through Bird under an aiding and abetting theory premised on conduct that remains inherently that of a publisher. (See dis. opn. of Cuéllar, J., post, at pp. 3, 20-22, 34-37.) We disagree. As applied to such behavior, Justice Cuéllar’s approach would simply substitute one end-run around section 230 immunity for another. [p. 25]

The dissenting opinions, on the other hand, were very focused on the plight of the plaintiff who had apparently been injured by these purportedly defamatory posts. (I say "purportedly," because although the Supreme Court decision does not spend much time on this issue, it's worth noting that the conclusion of the posts' defamatory nature was drawn from an ex parte default proceeding at the trial court where no defense was supplied. It is certainly easier for a court to accept a plaintiff's characterization of language as defamatory when there is no one present – even Yelp was left out – to show that it is not.) As we've seen in cases like Garcia v. Google, the operation of Section 230 can make it difficult for a legitimately aggrieved plaintiff to obtain a remedy against someone who has defamed them. But it isn't necessarily impossible, and the plurality reminded everyone that Hassell was not without any recourse:

On this last point, we observe that plaintiffs still have powerful, if uninvoked, remedies available to them. Our decision today leaves plaintiffs’ judgment intact insofar as it imposes obligations on Bird. Even though neither plaintiffs nor Bird can force Yelp to remove the challenged reviews, the judgment requires Bird to undertake, at a minimum, reasonable efforts to secure the removal of her posts. A failure to comply with a lawful court order is a form of civil contempt (Code Civ. Proc., §1209, subd. (a)(5)), the consequences of which can include imprisonment (see In re Young (1995) 9 Cal.4th 1052, 1054). Much of the dissents’ rhetoric regarding the perceived injustice of today’s decision assumes that plaintiffs’ remaining remedies will be ineffective. One might more readily conclude that the prospect of contempt sanctions would resonate with a party who, although not appearing below, has now taken the step of filing an amicus curiae brief with this court. [p. 32]

Perhaps this is the most important passage in the whole opinion. It's become really popular especially as of late to try to make platforms responsible for everything their users do. It's good to have courts remind us that it's the people who do the things who really should be held accountable instead.

Filed Under: california, cda 230, dawn hassell, defamation, free speech, injunctions, section 230
Companies: yelp

Publisher Helps To Keep Sci-Hub In The Public Eye By Trying To Bully It Into Submission Using Ineffectual Legal Remedies

from the but-please-feel-free-to-carry-on dept

As Techdirt has pointed out a number of times, attacking the huge free online repository of academic papers, Sci-Hub, is wrong from a number of viewpoints. It's wrong because Sci-Hub is not a site aiming to profit from the labor of others, but is simply trying to make knowledge accessible to everyone. That's also what academic publishers like to claim they are doing, except that strangely many of the largest end up with profit margins of 30%-40%, and the papers aren't accessible to all, just to those rich enough to pay the "egregious price increases" that roll in every year. It's wrong because most of the research published was paid for by the public through their taxes, who surely ought to be able to access it from convenient repositories that are as easy to use as Sci-Hub. It's also provided free of charge for publishers to repackage, often with few changes. And yet the latter want people to pay again, typically $30 for a single article.

It's not just wrong: it's really foolish on the part of the publishers to pursue Sci-Hub in this way. It simply provides another example of the Streisand Effect, with every legal action alerting more people to Sci-Hub's existence, and encouraging them to find out more. It's foolish, too, because it underlines the fundamental inability of publishers to stop people sharing online, which probably leads others to start doing so. Techdirt has already covered previous failures to shut down Sci-Hub. A new post on TorrentFreak provides us with an update on that continuing fiasco, with details of a new injunction obtained by one of Sci-Hub's arch-enemies, the American Chemical Society:

The amended injunction now requires search engines, hosting companies, domain registrars, and other service or software providers, to cease facilitating access to Sci-Hub. This includes, but is not limited to, the following domain names.

'sci-hub.ac, scihub.biz, sci-hub.bz, sci-hub.cc, sci-hub.cf, sci-hub.cn, sci-hub.ga, sci-hub.gq, scihub.hk, sci-hub.is, sci-hub.la, sci-hub.name, sci-hub.nu, sci-hub.nz, sci-hub.onion, scihub22266oqcxt.onion, sci-hub.tw, and sci-hub.ws.'

Obtaining an injunction is one thing; applying it is another. As the TorrentFreak post notes, many of the non-US service companies involved aren't interested in obeying US injunctions. At the time of writing, a list of Sci-Hub mirrors around the world showed several still operating without any difficulty. And even if some service providers go on to shut down Sci-Hub's domains, it would be easy to come up with new names for mirrors, whether close to "Sci-Hub" in form, or quite different. And ultimately people can use Tor to access sites that are even harder to take down. In the meantime, all that these vindictive and pointless legal moves achieve is to ensure that Sci-Hub remains in the public eye, and gains ever-more users and supporters.

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Filed Under: academic papers, academic research, copyright, injunctions, open access, paywalls, takedowns
Companies: sci-hub

Shouldn't Federal Judges Understand That Congress Did Not Pass SOPA?

from the hello-prior-restraint dept

We've discussed in the past the completely ridiculous attacks on Sci-Hub, a site that should be celebrated as an incredible repository of all the world's academic knowledge. It's an incredible and astounding achievement... and, instead of celebrating it, we have big publishers attacking it. Because copyright. And even though the purpose of copyright was supposedly to advance "learning" and Sci-Hub serves that purpose amazingly well, so many people have bought into the myth of copyrights must "exclude" usage, that we're in a time where one of the most amazing libraries in the world is being attacked. Sci-Hub lost its big case earlier this year, and almost immediately others piled on. Specifically, back in June, the American Chemical Society (ACS) jumped in with a similar "us too!" lawsuit, knowing full well that Sci-Hub would likely ignore it.

ACS has moved for a default judgment against Sci-Hub (what you tend to get when the defendant ignores the lawsuit), which it would likely get. However, in an extremely troubling move, the magistrate judge reviewing the case for the Article III judge who will make the final ruling has recommended forcing ISPs and search engines to block access to Sci-Hub. After recommending the standard (and expected) injunction against Sci-Hub, the recommendation then says:

In addition, the undersigned recommends that it be ordered that any person or entity in privity with Sci-Hub and with notice of the injunction, including any Internet search engines, web hosting and Internet service providers, domain name registrars, and domain name registries, cease facilitating access to any or all domain names and websites through which Sci-Hub engages in unlawful access to, use, reproduction, and distribution of ACS's trademarks or copyrighted works. Finally, the undersigned recommends that it be ordered that the domain name registries and/or registrars for Sci-Hub's domain names and websites, or their technical administrators, shall place the domain names on registryHold/serverHold or such other status to render the names/sites non-resolving.

So, this is kind of incredible. Because, as you might remember, there was a big fight a little over five years ago about a pair of bills in Congress called SOPA and PIPA that proposed allowing for such an order being issued to third parties like search engines, ISPs, domain registrars and the like, demanding they block all access to certain websites. And, following quite a public outcry (which also explained why this approach would do serious harm to certain security standards and other technical aspects of how the internet works), Congress backed down and decided it did not want to enable courts to issue such orders.

So why the hell is Magistrate Judge John F. Anderson recommending such an order?

At the very least, it seems problematic. Even if you ignore the Sci-Hub part of the equation (since it ignored the lawsuit, a default judgment was basically inevitable), you should be concerned about this. Here's a court order binding a very large number of non-parties to the lawsuit to completely block access to a variety of websites, without any sort of due process. One hopes that ISPs, domain registrars and search engines will push back on such an overbroad order -- one that even Congress realized was a step too far and never authorized.

Filed Under: copyright, dns, injunctions, intermediary liability, john f. anderson, search engines, site blocking, sopa
Companies: acs, sci-hub

Could You Design A Worse Patent Reform Bill Than The STRONGER Patent Act By Senator Coons? Don't Think So

from the this-is-just-bad dept

It's not secret that we still desperately need comprehensive patent reform to fix the many, many problems of our patent system. Even as the Supreme Court has spent the past twelve years repeatedly fixing broken parts of patent law one piece at a time (by repeatedly smacking down awful decisions by the Court of Appeals for the Federal Circuit) there's still much more that can, and should, be done. To date, most of these efforts are being blocked by powerful pharmaceutical interests, with some help from short-sighted trial lawyers who fear things like fee shifting (i.e., "loser pays") coming to patent law. With broad bipartisan support for real patent reform, it's really just been a few well-connected organizations that have blocked the whole thing from going through.

But, apparently, those groups have a friend in Senator Chris Coons, who last week introduced a patent reform bill so bad that it would basically wipe out pretty much all of the major gains towards fixing the patent system from the past twelve years. It's that bad. And shame on Senators Tom Cotton, Dick Durbin and Mazie Hirono for co-sponsoring the bill. It's unfathomably bad and would destroy innovation in many parts of the country. You know the bill is going to be bad when it conflates monopoly patent rights with traditional property rights, despite the two being entirely different things:

“Strong rights in property—whether intellectual or tangible—have been a key driver behind U.S. economic might. Eroding such rights would imperil innovation and job growth, so we need to maintain strong patent protections if we want our economy to grow at full speed,” said Senator Cotton. “I’m glad to see my colleagues from both sides of the aisle understand just how important patent rights are to our future. And I believe this bill will make sure intellectual-property rights are treated with the same respect as all our other rights.”

Except, of course, this is not an accurate description of patents at all. When patents are too "strong" they impede and hinder innovation. They slow down, limit, or outright kill important improvements and follow-on innovations. They work on the truly wrong concept that whoever comes up with an idea "first" is best able or equipped to actually successfully execute and bring things to market. They work on the assumption that less competition improves innovation when basically all evidence points in the other direction.

There are so many bad parts in the bill, it's tough to talk about them all. Josh Landau, over at Patent Progress, however has a pretty thorough breakdown. We'll break the problems into two sections ourselves (though, again, there's much more). First up, trying to kill the inter partes review process (IPR). IPR is very much under attack these days which is stupid and unfortunate.

Here's the idea behind the IPR system: sometimes (perhaps frequently!) the US Patent Office makes a big mistake and grants a patent that should not have been granted. This is not a theoretical problem. Studies have shown repeatedly that there has been an explosion in questionable patents approved in the last couple decades. There are lots of reasons for this, many of which we've discussed in previous posts, but hopefully everyone should be able to admit that if a patent that should not have been granted at all under the law, is still granted there is a clear harm to innovators and the public, in that innovators are blocked from innovating -- or are charged an unnecessary fee. There's a real and noticeable problem.

So, implemented back in 2012 under the America Invents Act, the concept behind IPR, is that the validity of a patent can be reviewed by a special tribunal at the US Patent Office to determine if the patent is valid. It's basically a good safety valve on the fact that patent examiners were often under pressure to approve patents just to clear out the docket faster, rather than worrying about whether or not something was truly valid. Seems like a good idea, but trolls and pharma companies hate it so much. The Supreme Court is going to hear a case soon looking at the Constitutionality of the IPR process -- described in the article linked above as determining if the USPTO is "allowed to change its mind."

But the Coons bill, if passed, would do away with the need for SCOTUS to review, because it would basically wipe out the IPR process. Landau summarizes just a few of the changes to the IPR process in this bill:

If a patent claim has ever been IPRed, no one else can ever IPR it again, no matter who they are or if they have totally new art.

You can never file multiple petitions against the same patent, even if it has 300 claims.  

The Patent Office can never revisit a patent once a federal court has.

Patent owners can appeal institution of an IPR before the final written decision, but petitioners can’t appeal denial of institution.

Only people who have actually been sued can file an IPR.

Anyone who financially supports the petitioner becomes a real party in interest.

Unlike everywhere else in the Patent Office, you have to prove claims are invalid by clear and convincing evidence using a narrow construction rather than the broadest reasonable interpretation.

Patent owners are effectively entitled to amend their claims.

Patent owners can, instead of going through IPR, ask to go through an “expedited reexamination,” allowing them to change their claims and have their patent treated as if it was a fresh application.  The petitioner isn’t involved in the reexamination, so it’s just the patent owner and the Patent Office

To show just how dumb this would be, Landau uses the example of the infamous podcasting patent troll, Personal Audio. As you may recall, after much effort, EFF was able to help bust the key patent held by Personal Audio, using the IPR process, and protecting tons of podcasters in the process. But would that still work if this bill became law? Not likely.

EFF was never sued by Personal Audio. They couldn’t have filed their IPR at all. The story would end here, even though that patent was invalid.

The requirement that you actually be sued goes too far. A patent owner can wait until people have built up businesses before suing, and in the interim, no one can challenge their patent. An IPR would let me see if the patent is valid before I invest resources in developing my product. Requiring an actual lawsuit before filing an IPR would incentivize patent owners to sit and wait until products are developed and profitable before filing their lawsuits.

[....]

Next, EFF would have to identify the “real party in interest” for the IPR. After the STRONGER Patents Act, that includes anyone who:

directly or through an affiliate, subsidiary, or proxy, makes a financial contribution to the preparation for, or conduct during, an inter partes review on behalf of the petitioner

So, did you donate to EFF during the past 4 years? Congratulations, you’re now a real party in interest to the podcasting IPR.

That means that you can’t challenge the patent in court if you’re ever sued. It also means that if you were sued on the patent more than 1 year ago, then EFF would have been prevented from filing the IPR. It means that, if EFF failed to name you in their petition as a real party in interest, the patent owner can ask for the petition to be denied because of that failure. And it means that anyone else you contribute to winds up prevented from challenging the validity of the patent anywhere (including in court.)

And it doesn’t stop there. If I’m a startup developing new technology and I file an IPR, any VC who funds me during the process is a real party in interest. If that VC then funds another company, that company can no longer file an IPR or challenge the validity of the patent. VCs will be wary of funding anyone who’s filed an IPR as a result, and startups who have to choose between an IPR and funding are going to pick funding.

Even more bizarre is taking away the adversarial nature of an appeal. One of the key problems with today's patent system is the total lack of an adversarial interest in determining if a patent was valid. If you only ever hear from one side of a debate, you're likely to identify much more with that side. But here, Coons is trying to shift the system to vastly limit any sort of adversarial process:

And let’s assume, as happened in real life, that the PTAB decided that there was a reasonable likelihood EFF would invalidate at least one of Personal Audio’s patent’s claims. The PTAB would decide to institute the IPR.

At which point the STRONGER Patents Act gives the patent owner to appeal the institution if there were procedural defects (like failing to name all the real parties in interest, being filed after a year from a lawsuit, or—new to the STRONGER Patents Act—if someone else had previously challenged the claim.) They can appeal even though the patent owner had every opportunity to point these defects out before the decision on institution was made.

But for some reason it doesn’t give the petitioner the right to appeal a denial if the denial was made for a procedural defect. You can only appeal if the patent is determined likely to be invalid. Seems “balanced,” doesn’t it?

Those supporting this bill want the world to believe that any challenge to a patent's validity is a de facto problem that needs to be stopped. The reality, though, is that getting rid of bad patents quickly is a key part of our patent system today, that is quite frequently a big part of why bad patents are getting thrown out and some patent trolls have struggled.

Oh and then there's this bit of total nonsense:

The STRONGER Patents Act also creates a new procedure, called the “expedited IPR reexamination.” This is itself a misnomer, because the “inter partes” in IPR means “between parties,” and the expedited reexamination explicitly does not include the petitioner, only the patent owner.

But setting aside the deceptive labeling, the expedited reexamination means that when an IPR is instituted, instead of actually responding to the IPR, the patent owner can simply request to cancel all their claims, file amended claims, and request a new examination of their patent. In this examination, it goes back to a regular patent examiner. The petitioner is totally cut out of the process.

So Personal Audio could simply go through reexamination, add some meaningless limitations to their claim, and come back with their patent. And by this point, it’s probably been more than a year since Personal Audio sued Adam Carolla, which means that EFF and Carolla are barred from challenging the new claims. (And if it hasn’t been more than a year, well, if it gets instituted then they can just request another expedited reexamination to keep running out the clock.)

This is bad, bad stuff. The IPR process is relatively new, but already quite important, and this bill would effectively wipe it out in its infancy.

The second major problem with the bill is that it basically targets a bunch of the Supreme Court rulings from the past few years that have helped massively fix problems with the patent system. Rather than applauding this and pushing SCOTUS to continue to clean up these messes, it often goes the other way. Here's Landau again, talking about how it would effectively reject SCOTUS's ruling in eBay v. Mercexchange -- one of the earlier patent cases the Supreme Court took in this new century to smack down CAFC and bring back some sanity. This is the case that says maybe, even if there's infringement, the optimal solution should NOT be a total injunction against the entire product:

For example, § 106 of the bill “restores the presumption of injunctive relief upon a finding that a patent is valid and infringed.” In 2005, the Supreme Court decided the opposite in the eBay v. MercExchange case. The FTC’s 2003 “To Promote Innovation” Report highlighted the reasons why an automatic rule in favor of injunctions harms innovation and the economy, in particular noting that because injunctions typically issue after a product has been designed and manufacture has begun, injunctions put patent owners in a position to demand a “supra-competitive royalty rate.”

The Coons bill would bring us back to the world in which a patent troll who patented a lug nut on a car could get an injunction on the entire car. That forces the manufacturer to choose between halting production on the entire vehicle until they can redesign and reorganize their manufacturing process (an incredibly expensive process) or paying the troll more than their lug nut’s technical value justifies. That’s not promoting innovation, or the economy—in fact, it’s the opposite.

There's much more in there as well, most of which is covered by Landau. EFF also has a great blog post on how problematic this bill is, noting that it seems peculiarly designed to drive innovation overseas.

This bill is dangerous. It takes the past fifteen years or so of a gradual march towards fixing a very broken patent system... and gets rid of nearly all of it.

Filed Under: chris coons, injunctions, inter partes review, ipr, patent trolls, patents, stronger patents act, uspto

Why The DMCA's Notice & Takedown Already Has First Amendment Problems... And RIAA/MPAA Want To Make That Worse

from the taking-down-speech-is-a-problem dept

The Copyright Office's study concerning Section 512 of the DMCA (the notice-and-takedown/safe harbors part of the law) had its second comment period end this week -- which is why you're seeing stories about how the RIAA is suddenly talking about piracy filters and notice-and-staydown. Via our think tank arm, the Copia Institute we filed our own comments, pointing out the already problematic First Amendment issues with the way the current notice-and-takedown system works. Remember, there's a very high standard set by the Supreme Court before you can take down expressive content. But the notice-and-takedown system ignores all of that:

Because this takedown system functions as a system of extra-judicial injunctions it is critical that the speech they target have at least as much protection as speech targeted by any request for injunctive relief. Ordinarily someone seeking to enjoin speech would need to properly plead and then prove that the targeted speech was indeed actionable. Under present practice, however, senders of takedown notices have not needed to overcome these sorts of hurdles prior to effecting the removal of targeted content via their takedown demands.

A significant reason takedown notice senders have been able to evade these constitutional requirements is because there is no effective consequence for sending non-meritorious takedown demands.

Unfortunately, the likes of the RIAA and others are pushing to make the system even worse, and we point out to the Copyright Office how that would exacerbate the First Amendment issues from the DMCA:

Under no circumstance should the Copyright Office advocate for exacerbating any of the consequences to speech that the DMCA already inflicts. For instance, any proposal to increase the power of a takedown notice, such as by turning it into a permanent injunction through “takedown-and-staydown” proposed by Question #12, would only increase the severity of the Constitutional injury the DMCA inflicts, as would requiring any additional delay in restoring content after receiving a counter-notice, as proposed by Question #5. If the Copyright Office is to do anything it should only be to encourage alleviation of the incursions on free speech that these unchecked takedown notices allow.

In our comment, we also note our concerns about some of the recent court decisions that seem to expand the DMCA in very dangerous ways that could also have serious free speech implications:

... those recent cases have also suggested that these takedown notices effectively start a clock on the intermediary, where once it learns too much about a user’s predilection for potentially infringing activities it must act to remove that user’s access to its systems entirely.

These cases are troublesome for several reasons, not the least of which being that, like jurisprudence relating to Section 512(f), they also infer a statutory requirement not actually in the statute. Section 512(i) only says that an intermediary must have a policy for terminating repeat infringers; it is otherwise silent as to what that policy should be, and post-hoc decisions by a court threaten to make safe harbor protection illusory, given that a platform can never be sure if it has complied with the statute or not.

They are also troublesome because they give the takedown demand a sort of power that such demands would never have outside of the DMCA. As discussed above, and in prior comments and proceedings, infringement allegations can often be false (or even merely mistaken), which is why injunctions are not granted without due process. Due process allows the allegations to be tested, so that only the meritorious accusations can result in any penalty. Allowing a penalty for unproven allegations, particularly with respect to speech, amounts to prior restraint, which is itself anathema to the First Amendment. A penalty that censors speech is bad enough, but a penalty that censors speakers altogether raises the constitutional injury to a whole other level. We have already seen malevolent actors abuse takedown notices to try to suppress criticism. We should not also be handing them the power to use takedown notices to suppress critics’ ability to speak out at all.

It's unfortunate that there has been little to no review at all of the First Amendment implications of the DMCA. And, no, we're not saying that infringement is free speech (heading off the comment that we're sure someone is already itching to make below). But we are saying that any system that removes expression has to take into account the First Amendment. But the DMCA doesn't discriminate and is regularly used to take down content that is clearly not infringing, as well as lots of content where it's not truly determined if it is actually infringing.

And without that analysis exploring the First Amendment implications, we now have the RIAA, MPAA and their friends trying to make the powers to censor even stronger, which is quite ridiculous coming from two organizations that often highlight their commitment to the First Amendment.

Filed Under: cathy gellis, censorship, copyright, dmca, dmca 512, first amendment, injunctions, notice & staydown, notice & takedown
Companies: mpaa, riaa

Another Bad EU Ruling: WiFi Providers Can Be Forced To Require Passwords If Copyright Holders Demand It

from the really-now? dept

For quite some time now, we've been following an odd case through the German and then EU court system, concerning whether or not the operator of an open WiFi system should be liable for copyright infringement that occurs over that access point. Back in 2010, a German court first said that if you don't secure your WiFi, you can get fined. This was very problematic -- especially for those of us who believe in open WiFi. The EU Court of Justice agreed to hear the case and the Advocate General recommended a good ruling: that WiFi operators are not liable and also that they shouldn't be forced to password protect their access points.

The ruling, unfortunately, says that WiFi operators can be compelled to password protect their networks. It's not all bad, in that the headline story is that WiFi operators, on their own, are not liable for actions done on the network, but that's completely undermined by the requirement to password protect it if a copyright holder asks them to.

In today’s judgment, the Court holds, first of all, that making a Wi-Fi network available to the general public free of charge in order to draw the attention of potential customers to the goods and services of a shop constitutes an ‘information society service’ under the directive.

Next, the Court confirms that, where the above three conditions are satisfied, a service provider such as Mr Mc Fadden, who providers access to a communication network, may not be held liable. Consequently, the copyright holder is not entitled to claim compensation on the ground that the network was used by third parties to infringe its rights. Since such a claim cannot be successful, the copyright holder is also precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to that claim.

However, the directive does not preclude the copyright holder from seeking before a national authority or court to have such a service provider ordered to end, or prevent, any infringement of copyright committed by its customers.

Lastly, the Court holds that an injunction ordering the internet connection to be secured by means of a password is capable of ensuring a balance between, on the one hand, the intellectual property rights of rightholders and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users. The Court notes, in particular, that such a measure is capable of deterring network users from infringing intellectual property rights.

The details here are especially troubling. As legal experts are noting, this ruling basically says that the times when an injunction can be ordered for password protection, the reason is for the sake of identifying users:

In McFadden the CJEU appears to have decided that password protection would be effective only if the user is required to provide identity details to the service provider so that the user cannot act anonymously.

Now that should raise some very serious concerns about anonymity and privacy -- things that we thought the EU supported. Instead, the CJEU basically seems to be saying you have a right to anonymity in connecting to the internet up until the point a major copyright holder doesn't like it any more, and they can now force WiFi operators to lock up their WiFi and/or demand identification to use it. Yikes.

This also punches a HUGE hole in the previous day's announcement by the EU Commission that there would be open WiFi across Europe. Under this new CJEU ruling, that may no longer be possible. It's fairly incredible how, between the European Court of Justice and the EU Commission, they seem so oddly confused about copyright and related issues that they seem to be messing absolutely everything up in just a few short weeks.

Filed Under: cjeu, copyright, eu court of justice, injunctions, liability, mcfadden, open wifi, passwords, wifi