November 2008

The EFF "Unintended Consequences" White Paper Update Marks the Ten Year Anniversary of the DMCA

November 10, 2008

It’s easy to forget that the Digital Millennium Copyright Actis really two separate laws. One protects publishers from “inadvertent” copyright infringement by creating the “notice-and-takedown” regime that requires copyright owners to demand that publishers take down copyrighted works published by third parties before asserting infringement. The other part of the DMCA is the anti-circumvention rule that generally prevents anyone from from bypassing copy protection schemes. The Electronic Frontier Foundation (“the leading civil liberties group defending your rights in the digital world”) has published the fifth update to its comprehensive white paper, “Unintended Consequences: Ten Years Under the DMCA.”This 19 page report details the extent to which the DMCA’s anti-circumvention provisions have been used to not to mount legal challenges against pirates who develop technologies to circumvent copy protection, but against consumers, scientists, and legitimate competitors in ways not fully anticipated when the law was passed. The EFF paper provides a comprehensive history of this side of the DMCA, including the famous “Felton/SDMI challenge” incident in 2000 (“bet you can’t defeat this protection. You did? Well, any disclosure of that would violate the DMCA, so put a sock in it”), and the efforts to claim that an end-user license agreement may constitute an access control measure protected by the DMCA. This is a “must read” document for anyone interested in anti-circumvention enforcement under the DMCA. Articles by Joe Laferrera of my…

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Hmmm … I Guess Two Weeks Notice is Enough

November 9, 2008

From a Department of Justice press release, November 7, 2008 – WASHINGTON — Attorney General Michael B. Mukasey issued the following statement on the resignation of Assistant Attorney General Thomas O. Barnett of the Antitrust Division: “Tom Barnett has been an effective enforcer of the antitrust laws and a strong advocate for consumers. Under his leadership, the Antitrust Division has increased cartel enforcement to record levels with unprecedented fines and prison sentences, improved the efficiency and efficacy of its merger enforcement, and enhanced cooperation with our foreign counterparts.” …. Barnett was confirmed by the Senate as Assistant Attorney General of the Antitrust Division on Feb. 10, 2006. He became acting Assistant Attorney General on June 25, 2005, and previously served as Deputy Assistant Attorney General since April 18, 2004. Barnett’s resignation is scheduled to be effective Nov. 19, 2008. Click here for full press release.

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Are Apple and IBM Competitors?

November 8, 2008

Many people knowledgeable about these two companies may be surprised to learn that IBM has persuaded a U.S. District Court judge in New York that indeed, they are competitors.  The judge has enjoined Mark Papermaster, a 25-plus year employee of IBM, from working for Apple Computer.  While at IBM Mr. Papermaster was a product development executive in the area of blade servers.  After Apple engaged in an extensive, year-long interview process it hired Mr. Papermaster as the senior executive for the iPod/iPhone development team. Of course, Apple was well aware of Mr. Papermaster’s non-compete agreement with IBM, which prohibited him from working for a competitor, and I assume that it seriously considered whether it could defend a challenge of this sort by IBM.  Apple probably concluded that servers and iPods were sufficiently far apart that it would be safe hiring Mr. Papermaster.  The fact that this decision went against it highlights once again the extent to which the outcome in a case of this sort is determined by the disposition of the judge who happens to draw the case, rather than the underlying legal principles, which give the judge an enormous amount of discretion to rule either way. The Justia page for this case is here.  It appears that Justia has decided to make access to court filings in the case free of charge, and therefore the legal memoranda arguing…

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Nation Finally Shitty Enough To Make Social Progress

November 6, 2008

Nation Finally Shitty Enough To Make Social Progress: Although polls going into the final weeks of October showed Sen. Obama in the lead, it remained unclear whether the failing economy, dilapidated housing market, crumbling national infrastructure, health care crisis, energy crisis, and five-year-long disastrous war in Iraq had made the nation crappy enough to rise above 300 years of racial prejudice and make lasting change. “Today the American people have made their voices heard, and they have said, ‘Things are finally as terrible as we’re willing to tolerate,” said Obama, addressing a crowd of unemployed, uninsured, and debt-ridden supporters. “To elect a black man, in this country, and at this time—these last eight years must have really broken you.” See also:Black Man Given Nation’s Worst Job

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Uniform Trade Secret Act Legislation – In Massachusetts, the Sixth Time May Be a Charm

November 6, 2008

Steve Chow at Burns & Levinson has sent me the legislation attached below, which the Massachusetts Uniform Law Commission, of which he is a member, filed with the Massachusetts House of Representatives on November 5, 2008. This is the sixth attempt since 1995 to get the 1985 Uniform Trade Secret Act (UTSA) enacted in Massachusetts; although there was no opposition, the furthest that a prior attempt progressed was to third reading in the House. The uniform act has been adopted by 45 states and the District of Columbia. Apart from Massachusetts, the only other states that have not adopted the act are New York, New Jersey, Texas and Wyoming. Steve Chow advises me that, because of some interest from the Joint Committee on Economic Development and Emerging Technologies and the Associated Industries of Massachusetts, there is a better than even chance that the legislation will be adopted in Massachusetts before the end of this legislative session, which ends in July 2010. Here is a link to the proposed legislation

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George Gilder on "The Coming Creativity Boom"

November 5, 2008

OK, I know that George Gilder is a very controversial guy, and that he lost a lot of money for his investors (and himself) in the late ’90s and early 2000s. So, he’s a lousy investor. But, that doesn’t detract from the fact that he can speak and write about the future of technology in ways that can make your head spin and leave you gasping for breath (and, if you’re not very careful, calling your stockbroker to increase your margin account). His article in the November 10, 2008 issue of Forbes is typical Gilder – thought provoking, inspirational, optimistic and (I hope) right: The real source of all growth is human ingenuity and entrepreneurship, which often thrive in the worst of times–and are always surprising. Knowledge is about the past; entrepreneurship is about the future. In a crisis the world of expertise pulls the global economy ever deeper into the past, where accountant-economists ruminate on the labyrinthine statistics of leviathan trade gaps, tides of debt and deficits, political bailouts and rebates, regulatory clamps and controls, all propping up the past in the name of progress. The crucial conflict in every economy, however, goes on. It is not between rich and poor, Main Street and Wall Street, or even government and the private sector. It is between the established system and the new forms of wealth rising up to displace…

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The FTC and DOJ – "So Sorry, but When it Comes to Sherman Action Section 2 Conduct, We Can't Agree on What the Law Is, or What it Should Be"

November 4, 2008

The Federal government has two antitrust enforcement authorities – the Antitrust Division of the Department of Justice and the Federal Trade Commission. These two agencies have partially overlapping enforcement authority over civil cases, and they often collaborate in setting antitrust policy. Although the federal courts are the final arbiters of the federal antitrust laws (which are statutory, and therefore originate with Congress), the business community relies heavily on the Justice Department and the FTC to provide their views on the law. Accordingly, from time-to-time the Justice Department and FTC issue detailed joint guidelines. (Examples include: Collaborations Among Competitors, 2000; Antitrust and IP Rights, 2007; and Antitrust Licensing Guidelines, 1995). The DOJ/FTC joint reports are a big deal – they often include lengthy hearings, prepared testimony and position papers from interested parties, proposed guidelines, revised guidelines, and so on, until (drum role ….) the big day when the final report is issued. And, as a result, these reports are given great weight by the antitrust community – and by that I mean the vast army of antitrust lawyers and economists who endeavor to understand this stuff, harmonize it with court decisions (where possible), and advise their clients on how to behave. So, it’s no understatement to say that it is an unwelcome surprise when the federal antitrust enforcement agencies can’t agree on the law. Yet, this is what occurred when the…

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In re Bilski – The Pendulum Swings

November 2, 2008

Those who take an interest in patents — inventors, litigants, lawyers, judges, pundits, trolls, and on and on — have been waiting with bated breath for the CAFC’s decision in In re Bilski. Is it a game changer for much-maligned “business method” patents? How far does it go in narrowing the patentability of business method processes? How will the courts apply it? How does it affect pending or contemplated cases? Is the Supreme Court likely to accept an appeal? It seems that almost every patent lawyer in the country feels compelled to write about this decision. Tens of thousands of words will be written. Indeed, I would swear that some lawyers pulled all-nighters on Thursday night so they would be the first to write about this case by Friday morning, and get a jump on the competition. To sort through the noise, my recommendation is that you go to the Patently-O blog. Start here, then search Patently-O for “Bilski”. I’m confident that this blog will collect most of the commentary on this case you are likely to need. See also: The Most Anticipated Patent Case Ever

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