18 December 2009

GPL enforcer brandish their sword in a lawsuit

FSF Wallpaper (blanco)photo © 2007 izamo | more info (via: Wylio)


The Software Freedom Law Center has undertaken proceedings against 14 hardware vendors, among which Samsung, Best Buy and JVC, for their alleged infringement of the GPL‘s license terms. Pursuant to claimant’s press release they attempted to approach the defendants giving them the opportunity to comply with the GPL prior to starting court proceedings, but those attempts were in vain.

The claimant asserted that the companies in suit have sold products containing BusyBox in violation of the terms of its license, the GPL (v2). In particular, the defendants faced the charge that they have distributed their products or firmware that contain BusyBox without claimant’s approval or authorization, since defendants had made the BusyBox in their distributions available in object code only. The defendants thus failed to include either (i) the “complete corresponding machine-readable source code” or (ii) a “written offer … to give any third party … a complete machine-readable copy of the corresponding source code.” Interestingly, the claimant forborne to question the interaction between the firmware and the BusyBox, especially as to whether the firmware were to be considered a “derivative work” of the BusyBox.

BusyBox has been referred by many to as the “Swiss Army Knife” for Linux and is thus a common component of numerous household devices that employ Linux as an operating system. Not surprisingly, the present lawsuit discovers how many commercially offered devices and appliances embody open source software.

16 December 2009

Would you still use Yahoo!, if you knew they sold your personal data at a fixed price?

Have you got an e-mail account on Yahoo! or do you use any of the services, such as messenger, groups or Flickr, provided by the Sunnyvale company? You were certainly aware of Yahoo!’s privacy policy, weren’t you? What you most probably did not know is the fact that Yahoo! surveil your personal data and then offer them to law enforcement at a fixed price. Not bad, huh?

Cryptome, a website hosted in the US that functions as a repository for information about freedom of speech, cryptography, spying, and surveillance got the ball rolling since it has obtained and made Yahoo!’s Compliance Guide for Law Enforcement available on its website. Seemingly, Yahoo! were not amused and served Cryptome with a takedown notice based on the US Digital Millenium Copyright Act (DMCA). Stretching copyright law for the purposes of preventing access to information is an interesting, albeit not novel, strategy.
By the way, this is the reason why the DMCA and, particularly, its Section 512 has come under criticism – it causes a so called chilling effect on free speech.

So long Cryptome has not complied with Yahoo!’s demand and is still hosting the document in suit. It starts to get exciting!

14 December 2009

Will the data retention directive be fully implemented across Europe: a reprise.

About a year ago I composed one of my first blog postings and asked “Will the data retention directive be fully implemented across Europe?”. The reason behind was the then pending decision of the ECJ caused by Ireland’s concern on the data retention directive’s grounds legitimacy and, the wrong way the directive was initially  implemented in Bulgaria.

Recently, I covered the startling decision of the Romanian Constitutional Court that rejected the data retention implementing act due to inconsistency with constitutionally guaranteed and fundamental human rights, such as the right to privacy. Seemingly, this decision will not remain a single one.

In a hearing, appointed for tomorrow, the German Constitutional Court is expected to deal with the mass-complaint filed by nearly 35 000 citizens in which they ask the Court to abrogate the provisions on data retention. I believe the whole data retention concept would then fall apart, if the German Constitutional Court decided in favour of the complainants.

Press releases in Austria which, in my view, attempt to encourage the government in its Fabian position towards data retention, even call for a final ruling by the ECJ on the overall legitimacy of the data retention concept. In such a case, the ECJ will have to scrutinise whether the data retention directive is conciliate with the Charter of Fundamental Rights of the European Union that, together with the Treaty of Lisbon,  is in force as of 1 December 2009.

13 December 2009

The Federal Circuit invalidates business method patent on obviousness

In a recent patent infringement case, the US Court of Appeal for the Federal Circuit decided that claimant’s patent claims were infringed, but invalid as the Court held them obvious and thus non-inventive.

Claimant’s alleged invention claimed a “method of purchasing goods or services over a data network”. In fact the claimed invention offered an e-commerce platform to both purchasers and vendors and filtered their requirements in order to achieve a match between their demands. Could that be inventive nowadays? Upon outlining the existing prior art, the Federal Circuit said “No”.

Nothing unusual, at least from a european perspective.

2 December 2009

In Re Bilski: a setback for business method and software patents?

The PTO addresses Bilski and software patentsphoto © 2010 opensource.com | more info (via: Wylio)


In October 2008, the US Court of Appeals for the Federal Circuit (CAFC) issued its decision in re Bilski en banc, describing it as “an historic opportunity to fix the US patent system, as the Bilski rehearing will directly address the boundaries of the subject matter of patents.”

The re Bilski appeal arose from the rejection by the USPTO of all claims because they failed to limit the method’s performance to a specific machine or apparatus, and the method did not involve a transformation of one thing into something different from the original, with the machine-transformation test having been previously articulated in the decisions of the US Supreme Court in Gottschalk v Benson, Parker v Flook and Diamond v Diehr. The Federal Circuit’s decision is thought to have turned the tide for business method patents in the United States.

While Affirming That Business Methods Are Still Patentable

the Court has rejected State Street Bank’s “useful, concrete, and tangible result” test, which many believed had cleared the way for improper patents on fundamental principles and everyday activities that had no connection to technological innovation.

In January 2009, Bilski petitioned the US Supreme Court for a writ of certiorari, seeking to overturn the Federal Circuit decision.

In the meantime the Court

Granted Certiorari

and heard oral arguments on 9 November 2009.

Reading that transcript is a quite funny thing. The Justices seem to openly show their reluctance and, even malice, against petitioners’ alleged invention. Mr Jakes, counsel for the petitioners, had to stand for questions like the one of Justice Breyer “You know, I have a great, wonderful, really original method of teaching antitrust law, and it kept 80 percent of the students awake. They learned things — (Laughter.) — it was fabulous. And I could probably have reduced it to a set of steps and other teachers could have followed it. That you are going to say is patentable, too?”

Chief Justice Roberts went even further asking “I’m looking at your Claim 1, in Joint Appendix page 19 to 20. How is that not an abstract idea? You initiate a series of transactions between commodity providers and commodity consumers. You set a fixed price at the consumer end, you set a fixed price at the other end, and that’s it. I mean, I could patent a process where I do the same thing. I initiate a series of transactions with sellers. I initiate a series of transactions with buyers. I buy low and sell high. That’s my patent for maximizing wealth. I don’t see how that’s different than your claim number 1.”

I would not be surprised if the Supreme Court affirmed the Federal Circuit. In such an event, the Justices should take their awaited decision to, hopefully, provide for a long-expected clarity on the patentability of business methods and software implemented inventions.