26 February 2010

Facebook granted a dubious patent

what shows up in your newsfeedphoto © 2009 Cambodia4kids.org Beth Kanter | more info (via: Wylio)

The readers of the Reguligence Weblog are familiar with the fact that I am not a supporter of software and business method patents. Moreover, I am rather a doubter as to those patents’ furtherance to the Information Technology at all. Nevertheless, I should be grateful to Facebook for giving me an occasion to have another post on this issue.

As you might have already perceived, Facebook has been granted the patent #7669123 for “dynamically providing a newsfeed about a user of a social network”. Basically, Facebook has patented the news feed that provides a user of their social network with the information about what other users are currently doing or at best have done on that network.

To me this is a trivial patent par excellence. While the patent eligibility could be easily satisfied under the Federal Circuit’s holding in Bilski, in pursuance to which “a method claim is surely patentable subject matter if (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. ” and a social network could (arguably) serve as an “apparatus”, there are some doubts with respect to that patent’s novelty and non-obviousness. According to GIGAOM, the social network Multiply.com had a similar interface for keeping track of friends’ actions before Facebook launched its own. As regards the inventive step applied, I believe that aforementioned “invention” would be laughably obvious even to a person having just basic knowledge in social networks, not to mention a “person skilled in the art”.

Notwithstanding, the patent, albeit a “weak” one, has been granted and – unless successfully challenged and invalidated- will be valid for the next 17-18 years. I am personally curious whether Facebook will at some time take the risk and attempt enforcement, and hence share the destiny of Amazon and their one-click-patent.


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23 February 2010

Is the Austrian gambling monopoly coming to an end?

photo © 2010 Bonnie Craven Francis | more info (via: Wylio)

The subject matter of this post is not necessarily related to Information Technology or Intellectual Property. Arguably, it could be deemed to be somewhere in the orbit of regulatory matters, but…”wait a moment” – might some of you ask – “what is the name of this guy’s blog again?”, and that is true – it reads “From Vegas To Legal”! So, in recognition of my blog’s name, I consider the time ripe to risk a dive into gambling’s deep waters.

In the instant case of criminal proceedings against Ernst Engelmann that was filed with the Regional Criminal Court in Linz, Austria, said court referred three questions to the European Court of Justice (ECJ) and asked the latter for a preliminary ruling. In particular, the court in Linz wanted to know whether

– Article 43 EC derogates a national provision mandating that only corporations established in a member state may there operate games of chance in casinos, thereby necessitating the establishment or acquisition of a corporation in that member state?

– Articles 43 and 49 EC derogate a national monopoly on games of chance in casinos, if the member state  in question maintains an inconsistent policy to limit gaming, inasmuch as national licensed organisers encourage participation in gaming – such as public sports betting and lotteries – and advertise such gaming, for instance, on TV?

– Articles 43 and 49 EC derogate a national provision under which a member state may exclude Community competitors (that do not belong to that member state) from a tender where a license to organise games of chance in casinos are granted.

In his today delivered opinion on the above questions, Advocate General Jan Mazak starts with a very good introduction into the federal gambling law of Austria, followed by a dissection of the same. From my perspective it is a must-read for all those interested in the matter.

Having come to the first question referred to the ECJ, the Advocate General opines that the Austrian legislation is incompatible with the freedom of establishment to the extent it reserves the operation of games of chance in casinos exclusively to corporations which have their seat in Austria. Companies registered in other member states of the European Union thus suffer a direct discrimination as they are excluded from the license grant to operate a casino in Austria. Such discrimination would be justifiable only if it grounded on deliberations with respect to public policy, public security or public health and a genuine and sufficiently serious threat affecting a fundamental interest of society existed. In Mr Mazak’s view the latter condition was not satisfied since Austrian authorities would not face a “genuine and sufficiently serious threat affecting a fundamental interest of society”, if the had to administer and supervise gaming operators which reside in other member states. Unfortunately, the Advocate General remained silent as to whether the operation of games of chance in casino should be reserved solely to corporations.

With regard to the second question, the Advocate General states that encouraging of participants in games of chance and advertising undertaken by operators does not necessarily mean that the national policy of limiting games of chance lacks consistency. Moreover, the Advocate General is of the opinion that it is the referring court to determine whether the said advertising is consistent with the objectives of the member state, since, among the various objectives which it pursues, the Austrian legislation seeks to combat fraud and criminality in the games of chance sector, by orienting demand for gaming towards an offer controlled and supervised by the State. Such determination, however, should be limited only to a sector where there is a gaming monopoly which would develop disproportionate and inconsistent advertising.

As to the third question, the Advocate General finds that the exclusion of non-residential Community competitors contradicts the freedom to provide services. Furthermore, and – in the absence of a genuine and sufficiently serious threat affecting a fundamental interest of society – the instant case’s restriction is discriminatory and unjustifiable on the grounds of public policy, public security or public health.

Put it all together, this Advocate General’s opinion has the potential to cause a ruling that would strengthen the principles framing the European Union. By the same token, it could deprive member state of the few sinecures they still possess in the realm of, say, gambling.

As regards the Austrian gambling monopoly, I personally believe that it will survive a ruling (almost) untouched.


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20 February 2010

Templates designed to capture a physician-patient encounter are not copyrightable

The case of Utopia Provider Systems vs Pro-Med Clinical Systems was recently referred to the United States Court of Appeal for the eleventh Circuit. The claimant Utopia had developed paper templates to capture a physician-patient encounter, and had obtained a Certificate of Registration as “compilation of terms” with the US Copyright Office. The claimant had also concluded a license agreement with the defendant Pro-Med with respect to the templates. Somewhen the defendant began to copy the templates and to create derivative electronic files thereof and has eventually ceased to pay the contractually agreed royalties. No wonder, the claimant sued for copyright infringement and the defendant, not surprisingly, argued that the templates were not copyrightable because they were blank forms that did not convey information.

The District Court for the Southern District of Florida, being the court of first instance, dismissed claimant’s action and found in favour of the defendant.

The Court of Appeal for the eleventh Circuit affirmed the District Court’s ruling and delivered a reasoning based on its previous judicature.

The Court started with stating the statutory requirements for copyrightability in 17 U.S.C. § 102(a) and cited the Supreme Court’s ground-breaking decision in Feist vs Rural, according to which a work under copyright law need possess at least some minimal degree of creativity in order to be original and hence copyrightable. The Court’s relevant precedent as to whether the templates in suit were copyrightable was its previous decision in Clarke Checks. Accordingly, blank forms which “do not convey information” or contain original pictorial expression were not copyrightable. The relevant test for copyrightability of the templates, therefore, was whether their forms “conveyed information”. The Court went then further citing the Second Circuit which in Kregos vs Associated Press offered examples of works that “conveyed information” opposing them to such that did not. Accordingly, and as the originality claimed in the templates in suit was in the “selection and arrangement of their terminology”, the Court did not find that such selection and arrangement conveyed information, wherefore they were not sufficiently original and hence failed to attract copyright protection.

Coming to my analysis, it is positive that a higher court in the US has fortified its authority in barring trivial templates and forms from copyrightability. Copyright law is, in the sense of the ruling in Feist, supposed to grant a limited monopoly over works of creativity. There is nothing creative in non-informative templates and their unauthorized use should not be referred to copyright law, but rather to provisions relating to unfair competition.


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13 February 2010

Will Verizon adopt a "three strikes and you are out" policy?

Verizon was once acclaimed for its firm standing in opposing copyright holders’ attempts to access the personal data of subscribers who had allegedly infringed copyrights by means of peer-to-peer file sharing platforms. That was 2003 and, no doubt, everything flows, but same company’s newer policy nearly condemns those glory days to oblivion.

CNET as well as Wired have recently reported that Verizon has begun terminating some subscribers’ Internet access due to said subscribers’ alleged copyright infringing dealings.

According to FindLaw columnist Anita Ramasastry this is to be viewed as the result of RIAA’s “alternative approach” to work with ISPs to police illegal downloading, instead of – after having lessons learned – suing the downloaders themselves. In this respect a crucial question is awaiting an answer – does RIAA by any means “support” Verizon or how does Verizon learn of its subscribers’ alleged copyright infringement at all? In the state of such intransparent policies, I personally could only encourage subscribers to Internet services to play question-and-answer games with their ISPs, and with Verizon in particular, in order to gain as much information thereon as just possible.

While Canadian law professor Michael Geist blogs that Verizon’s actions are not exactly “three strikes and you are out”, as concerned subscribers still can go to another ISP, he nevertheless points out that the lack of due process is very disturbing.

It is hard to predict as to whether Verizon will introduce a zero tolerance three strikes policy, it is nonetheless just pity that one of America’s major ISPs has yielded to copyright holders’ and their representatives’ demands by thus demonstrating readiness to sacrifice its customers’ fundamental rights in the information society.

12 February 2010

German court discharges family accused for file sharing

The District Court of Mainz has recently dismissed phonorecord producers’ charges against a family although their

Subscriber Line Was Demonstrably Used to Access, Download and Make Music Files Available

on a file sharing platform. The Court’s ruling bears the file reference 24.9.2009 – 2050 Js 16878/07.408ECs and has been published in the German journal Multimedia und Recht (MMR). The family’s attorney, Dr Jan Peter Müßig, has prepared an abridgement that is publicly accessible on MMR’s website.

The accused faced a criminal charge for having made available a certain amount of music files whose copyright was owned by different phonorecord producing companies.  Representatives or agents of those companies managed to download some of the files and

Succeeded To Detect The IP Address

and consequently the subscriber line of the accused. The subscriber line led to a family consisting of two adults and two minors. The Court ordered the search of the family’s home and thereafter the seizure of the computers and an external hard drive that the enforcement officers retrieved. The mother in the family could be identified as the principal of the subscriber line.

Initially, the Court found that identifying the subscriber line used for file sharing purposes equated the identification of that line’s principal as perpetrator and ordered  the mother to pay a fine of 1.500 Euro. On appeal she referred to the doctrine “in dubio pro reo” as she was not the sole user of the computers and the line in suit.  She further pointed out that the prosecution could not demonstrate her presence at home while songs were made available to the public and successfully downloaded by the right owners.

Failing to determine a proper perpetrator, the Court accepted the reasoning of the accused, vacated its previous order and did eventually

Dismiss The Charge Against Them

Having done so, the German court has demonstrated that it abides by nothing, but the law.

10 February 2010

Do not post on Facebook while wanted

Facebook for Dummies, anyone?photo © 2008 David Fulmer | more info (via: Wylio)


Imagine you are wanted by law enforcement officers who, upon discovery, would imprison you without any delay. What would you do? I bet you would hide and keep beneath surface. Moreover, you would very likely think twice before using social media, whereby proudly communicating your wanted poster to the public. No, you would not? Your case then would pretty much equate Christopher Crego’s current situation.

It is somehow surprising that some society’s members do not recognize social media as well as other web 2.0 applications to be “public”.  This appears even weirder as the desire to “communicate with the public” is considered the main drive behind the use of such platforms. In the field of internet, hence, public is where others could look into your content, get notice what you do or otherwise interact with you. Everything leaving your privacy almost automatically enters the public realm.

In this regard social media has the potential of great convenience – communication with others is just a click away. Equally important, however, social media has also proved problematic – think of people that got fired for being on Facebook while actually on sick leave or of recently reported recruiters’ practices.

So, be careful because the social media has you!

3 February 2010

ACTA – a much ado about nothing or a real menace to our digital freedom?

2propuestas para el #TwitterShowcase 24 #ACTA #openACTAphoto © 2010 Neto González  | more info (via: Wylio)

In the last couple of weeks I have been confronted with numerous and contradictory information on the Anti-Counterfeiting Trade Agreement (ACTA), its ongoing negotiation rounds, and – of course – its possible impacts on our digitised society.

Curiously enough, the information flow appears to be largely one-sided, as it originates from critics of the planned agreement at the utmost. Official European authorities’ statements are either rare or more or less expressionless. The Intellectual Property Watch has quoted the Commissioner Designate for International Trade, Karel de Gucht, saying “If there is confidentiality, I will respect it and I have to respect it.  It is impossible to change the terms during the negotiations”. Clearly, confidentiality obligations – when assumed – need be abode by. However, why should an issue of such importance be kept under secrecy?

ACTA is meant to be a multilateral trade agreement whose framers claim it to be a response “to the increase in global trade of counterfeit goods and pirated copyright protected works.”

The Scope of ACTA is Broad

including counterfeit physical goods, as well as “internet distribution and information technology”. In regards to the latter, ACTA is feared by many to bring the so called “three strikes and you are out” rule that would eventually lead to an internet denial for, say, users of infringing file sharing platforms. Such rules, for instance, are currently reported to be either implemented or seriously discussed in France, the United Kingdom, New Zealand, South Korea, and Taiwan.

ACTA is further frequently pulled together with the Directive 2004/48/EC (IPRED). Allegedly, the European Institutions await ACTA’s coming into force in order to align it with the IPRED II that was proposed in 2005 and aims to introduce criminal measures to ensure the enforcement of intellectual property rights.

Put it another way and given the validity of the above, ACTA will provide for

Some Atrocious Amendments

of the intellectual property legislations around the globe.

Indeed, I acknowledge that we live in an intellectual property driven society. Peterson J’s dictum “what is worth copying is worth protecting” in the University of London Press vs University Tutorial Press case seems to be as relevant today as it was in 1916.  And yes, it is true that the advent of Internet brought an inexpensive way to copy digital works and to distribute them without suffering any loss in quality. It is thus understandable that authors and right owners sought and are still going to seek sufficient protection for their works. Legislation on intellectual property, however, has always sought to

Provide for a Societal Balance

i.e. a balance between right owners’ limited monopoly over their works and society’s interest to access these works. The changes considered to be introduced by ACTA will, in my humble opinion, cause an imbalance in favour of the right owners.

As a consequence, ACTA is to be viewed – at least on the realm of Internet –  as a

Menace to Our Digital Freedom

rather than as much ado about nothing. If I were asked to advise the content industry, I would emphasize on business models and licensing schemes somewhat different than the current ones instead of employing a “seek and destroy” strategy to fight digital infringement.
There are many voices out there presenting good ideas, the content industry should just listen up.