I understand Hollywood's concern over lost revenue from file-sharing of movies. But this seems perhaps a bit draconian?
The New York Times reports that "[a] Hong Kong judge sentenced a 38-year-old unemployed man to three months in jail Monday for using an Internet file-sharing system to make three Hollywood movies available for others to download free."
ZDNet reports that the European Commission is proposing the introduction of a European Community patent. The Commission maintains that the Community Patent would allow inventors to obtain a single patent that is legally valid throughout the European Union, which would reduce the costs of filing and litigating a patent."
But here's the rub, the European Commission Community Patent proposal states that the "[European Patent] Office will apply to the Community patent the case law which it has developed for the European patent."
Federal Trade Commission Chairman Deborah Platt Majoras tells Senate lawmakers that the FTC already has a "broad mandate" to clamp down on spyware, and no new legislation is needed.
Majoras was asked to provide guidance to members of a Senate Commerce Committee panel as they sought to reconcile differences between competing anti-spyware bills.
She cautioned legislators against passing a measure that outlawed specific behaviors, for fear that courts would treat omissions as "loopholes" for unanticipated, next-generation spyware attacks.
While comments are very welcome about anything on my blog, ironically enough we at the Center for Internet and Society are having technical difficulties getting the Internet comments feature to work on my blog. So until we get the feature working, feel free to email me your comments and I will be glad to append them to the relevant post. Hopefully the bug will be fixed soon.
Professor Lemley's testimony before the Senate Judiciary Committee today on copyright law in the post-Grokster world contains a good summary of the questions that the Grokster decision left open as well as some suggested legislation.
Kevin Maney at USA Today had an interesting article last week on the backlog at the PTO caused by insufficient numbers of patent examiners who are unable to keep up with the ever-increasing deluge of patent applications.
Some interesting excerpts from the article:
Patent application filings have been growing 6% to 8% a year for more than two decades, so the number of applications has nearly quadrupled since 1980. About 382,000 will be filed this year.
The PTO has 4,200 patent examiners. So in 2005, 91 applications came in for each examiner. If you figure that each examiner works maybe 235 days a year, that leaves 2.6 days — 21 working hours — to review, approve and finalize each patent application if the PTO were to keep pace with the onslaught.
Illinois attorney David Fish has filed a class action lawsuit against infamous spyware/adware company 1800Solutions Inc. Last month Fish survived a motion to dismiss in a separate suit he brought against the spyware/adware company DirectRevenue LLC.
In that suit DirectRevenue sought to stay the litigation by arguing that, in accordance with the ProCD case, an arbitration clause in the End User License Agreement ("EULA") governed. The district court rejected this argument. The court said that unlike the plaintiff in ProCD who could simply return the product if he didn't like the EULA that came in the packaging, a user who installs spyware as a byproduct of downloading something else from the Internet often has a difficult time removing the spyware. The court also said there was a triable issue of fact as to whether the user ever saw the EULA, since there was testimony that although a link to the EULA appeared in at least some cases, the user did not have to click on it to download the software. Unfortunately for Fish and his clients, that ruling may conflict with a recent Illinois appeals court opinion in Hubbert v. Dell Corp. that held that a valid contract was formed with Dell by the use of hyperlinks to various parts of the contract even though the user did not have to click on the links to make a computer purchase.
I was talking to a friend recently (not a lawyer, but a well-informed techie), and our conversation turned indirectly to natural right theories of intellectual property. It came up, as the theory often does, with him making a variant on the argument that “it’s not fair for people to get the advantage of someone else’s invention without paying for it.” This is the classic free-rider argument as applied to intellectual property. Although the majority of IP scholars believe that natural rights theories are nearly useless in crafting IP laws, for example, see this article by Mark Lemley, natural rights arguments still resonate strongly with the public. This is too bad, because it actually muddies the waters when talking about intellectual property.
It's great to be here deep in the center of the Center for Internet and Society, and to have my blog up and running too. As you can see in my bio, I come here after having practiced intellectual property litigation at Kirkland & Ellis LLP just a bit north of here in San Francisco. As I start my time here, I'm doing some research on the current state of business method patents, and what should be done about them. I'm also looking forward to the new cases we plan to bring this year, like a lawsuit dealing with those evil twin invaders -- spyware and adware.
Professional/Job Title
Resident Fellow at the Center for Internet and Society