another copyright infringement class action – this time in the us

Those silly Americans. Always copying great Canadian innovations, like class actions for copyright infringement by lawyers against large legal publishers. You’ll recall I put up a short post yesterday on a lawsuit along those lines that was recently certified to proceed. I’m a bit behind in my reading – apparently a similar suit was filed last week in New York, again by lawyers, and this time against Westlaw (a subsidiary of the target of the Canadian action, Thomson Reuters) and LexisNexis.

More details on the action in the Wall Street Journal (along with a copy of the claim), The Volokh Conspiracy and the ABA Journal. I’ve included the last link more for the comments, just to give a sense of opinions on the topic (which, perhaps not surprisingly, are all over the map). Volokh offers a brief analysis, plus another spirited debate in the comments.

Nice change to be first, I suppose.

us supreme court releases bilski decision on patents

The US Supreme Court yesterday released its decision on the Bilski v. Kappos case.

The bottom line:

Business methods can still be patented in the U.S.

The summary:

Bilski attempted to patent a method of hedging energy commodities, primarily in the form of a mathematical formula. The US Patent Office rejected the application. The rejection was upheld by the Board of Patent Appeals and the Court of Appeal for the Federal Circuit.

Most notably, the Court of Appeal rejected the previous test which had enabled the claiming of business method patents (the State Street Bank & Trust case), instead holding that “a claimed process is patent eligible [only] if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing”.

Needless to say, this new test would have put a bit of a damper on business method patents.

The Supreme Court did not agree with the Court of Appeal. It held that the “machine or transformation” test is not the only test for patent eligibility for a process and that business method patents are in fact permissible under the Patent Act.

That being said, they nonetheless agreed with the Court of Appeal that Bilski’s patent should be rejected, not because it failed to meet the “machine or transformation” test, but rather because it was an attempt to patent an abstract idea rather than a business method. The Supreme Court affirmed that abstract ideas are not patentable.


Many like the EFF seem to be disappointed, but from a jurisprudential perspective the judgement makes sense to me. The Supreme Court’s rationale was that courts “should not read into the patent laws limitations and conditions which the legislature has not expressed” and there was no reasonable basis on which the term “process” had to be specifically tied to a machine or the transformation of an article.

In other words, it’s not the job of the courts to make up new stuff when it comes to the law – their job is only to interpret the law correctly. And if there’s any issue with the Patent Act, then it should be dealt with through legislative change rather than a judicial decision.

Perhaps not quite the interventionist approach that some might have been hoping for.

So, as the EFF notes, all of you out there that have a glimmer of inspiration on how to make your fortune from, for example, a system for reserving toilets, (or suing others who come up with the same thing but didn’t apply for a patent) can still pursue that dream.

Bilski v. Kappos (PDF)

flash intro pages – a useful analogy

Just a short one today before I get back to work. Completely unrelated to law.  If you’re building a website, and thinking of using flash, and, moreover, thinking of having a flash splash page, you may want to consider this sage advice:

Jared said, “When we have clients who are thinking about Flash splash pages, we tell them to go to their local supermarket and bring a mime with them. Have the mime stand in front of the supermarket, and, as each customer tries to enter, do a little show that lasts two minutes, welcoming them to the supermarket and trying to explain the bread is on aisle six and milk is on sale today.

“Then stand back and count how many people watch the mime, how many people get past the mime as quickly as possible, and how many people punch the mime out.

“That should give you a good idea as to how well their splash page will be received. That’s the crux of it.”

MarketingSherpa: Uproar over Anti-Flash Intro Survey Results by way of The Oatmeal.

data/privacy breaches – costs are increasing – time for investment?

An interesting piece in E-Commerce News about a new report from PGP and Poneman about the cost of data/privacy/security breaches and the reasons for them. Some excerpts:

Data breach incidents cost U.S. companies US$202 per compromised customer record last year compared with $197 in 2007 according to the study. The average total per-incident cost rose to $6.65 million in 2008 up 5.3 percent from $6.3 million in 2007.

Healthcare and financial services companies experienced the highest customer churn rates — 6.5 percent and 5.5 percent respectively.

Third-party organizations accounted for more than 44 percent of all data breaches in 2008 and the resulting investigation and consulting fees made these the most costly form of data breaches.

Nearly 90 percent of all cases in the 2008 study involved insider negligence.

Many of the security problems companies face are preventable — but most organizations don t have the right software tools and security policies in place to deal with data breaches he observed.

“It s a combination of software and risk management ” explained Ponemon. “Good technology like encryption data-loss prevention tools and data-access tools can help — but they re not the complete answer because so many of these incidents are due to negligence and carelessness.”

Of course, there is a bit of of a conflict here given that the sponsors of the study also happen to offer security solutions. Nonetheless, the figures are important to keep in mind to drive home the point that the direct costs (not to mention the reputational costs) of a privacy or data breach are very real. And very substantial. Hopefully, some figures like this will prompt companies to invest more in proactive measures to reduce the risk (and costs) of privacy breaches.

If you’re beyond that stage, then you might want to read this: Practical Tips for Responding to Privacy Breaches (full disclosure: I work for the firm that published this article).

chrome a windows killer? i doubt it

Read an article in eWeek that left me scratching my head a bit. The nub below:

Then later:

And that would spell doom for Microsoft. It’s one thing to squeeze Microsoft out of the Internet game by dominating search and Web services. It’s another entirely to come after the software giant’s core operating system business, wielding the Web as your platform.

Must admit I have a lot of trouble seeing that, as I would have thought in order to supplant Windows, it would need to be gone, and to go from a browser that sits on an o/s to replacing the o/s seems to be a rather large leap. A huge leap, actually.

What they’re suggesting might happen is already a possibility today. There is definitely something that can supplant Windows altogether, and provide access to all the web-oriented apps, etc. that Google offers. Its cheap (sometimes free), stable and has pretty good UIs – in fact, a selection of UIs and different flavours. Its called Linux. However, for a variety reasons, it hasn’t kicked Microsoft’s ass yet (at least on the desktop – there are a few areas where it definitely does, such as web and other server functions).

To suggest, then, that, because Google has come out with a browser, that that will lead to the supplanting of Windows seems, IMHO, to be a bit far-fetched. I’m not suggesting that Google wouldn’t have the wherewithal to try to go after the desktop. They may do so. Though I’m not sure if they’d want to – they have a pretty good business model already…

Anyway, if and when they do something like that it will be so much larger an undertaking than Chrome that the links between that and Chrome would be tenuous at best, other than possibly bundling Chrome within whatever o/s they create.

Even possibly on the application front, I can see Google putting some pressure on MS, and how this might tie with Chrome. But not the o/s on which the whole thing runs.

So I think for the time being, Bill and Steve probably don’t have much to worry about with Chrome’s introduction, at least when it comes to the o/s business (IE on the other hand, is another matter altogether…).

antigua – sun, fun and… pirates?

Probably only catching up on things as its been quite busy and alas this blog is unfortunately low on the list of priorities… Anyway, I was stunned to read in Variety that

The government of Antigua is likely to abrogate intellectual property treaties with the U.S. by the end of March and authorize wholesale copying of American movies, music and other “soft targets” if the Bush administration fails to respond to proposals for settling a trade dispute between the two counties, according to the lawyer representing the Caribbean island nation.

The history is quite interesting. Apparently Antigua has prevailed several times at the WTO in respect of US trade practices related to offshore gambling sites which are hosted in Antigua but the US has taken no action. After roughly five years of proceedings, apparently Antigua is now looking to this course of action as a retaliatory measure. The WTO has to some extent, blessed this course of action. From the article:

The most recent victory was in December, when the WTO ruled that Antigua could exact damages by ignoring IP agreements with the U.S. should a negotiated settlement fail.

Somewhat surprising but the ruling can be found at the WTO site (note – link is to a 74 page PDF) and awards Antigua:

6.1 For the reasons set out above, the Arbitrator determines that the annual level of nullification or impairment of benefits accuing to Antigua in this case is US$21 million and that Antigua has followed the principles and procedures of Article 22.3 of the DSU in determining that it is not practicable or effective to suspend concessions or other obligations under the GATS and that the circumstances were serious enough. Accordingly, the Arbitrator determines that Antigua may request authorization from the DSB, to suspend the obligations under the TRIPS Agreement mentioned in paragraph 5.6 above, at a level not exceeding US$21 million annually.

I’m surprised this hasn’t gained more prominence, since the implications could, needless to say, be huge, particularly given other trade disputes that the US has with the EU and others (and in which it has taken a similar course of action). I did not an article that mentioned that Slysoft, the company which broke Blu-Ray’s DRM system, is based in Antigua.

Then again I have been living (or rather working) under a rock lately so may just be late to tune in to this news.

regrettable absence

Apologies to all ten of my loyal readers for the absence. It has been a very, very busy summer and, unfortunately, when it comes to relative priorities, getting work done for clients, playing with my 2 year old, sleeping and then blogging take priority, in that particular order. I’ve also been surprised so far by some of the informal comments I’ve received (not on the blog but in person), most of which have been negative or have negative implications. I must say that has also played a bit of a role in my absence. So who knows, this little blog may not be around much longer. Still giving it some thought.

In any event, a brief quote from one of my colleagues that you may find amusing: “The practice of law is very much like a pie-eating contest where the prize for winning is more pie.”

taking the fun out of blogging

As a lawyer, I understand the need for policies, procedures, practices, etc. when running a business, managing vendors, employees, etc. Of course. Sure. That’s part of work – both my work and the work of my clients. But when I see an article entitled “Blogging Policies and Best Practices for Lawyers and Law Firms” well, gotta say, my eyes start glazing over.

Not that there’s anything particularly bad or wrong about the article. In fact, it offers some good advice on avoiding “ethical minefields”, creating “powerful marketing tools” and ensuring you realize a good return on your “investment”.

Ugh. To be perfectly honest one of the primary reasons I blog is not to realize a return on investment, or to create a powerful marketing tool, but rather just to offer casual observations (or ruminations) on my work or things related to my work. In other words, its a bit of fun, as compared, for example, to writing a formal research paper, journal article, or a 100 page outsourcing contract. For those types of writing, there are many, many rules, requirements and policies to remember and adhere to, amongst other considerations. And relatively speaking, its not quite as much writing that stuff as it is posting what are ostensibly meandering ramblings about the next new thing. Don’t get me wrong, its certainly interesting and challenging work, but its not the type of thing one typically does to relax.

I guess what I’m getting at is along the same lines as the previous post about making blogging part of someone’s job. Its kind of like saying that its part of your job to chat up your friends at work on a regular basis. Its kind of like saying that there should be internal policies governing who you go to lunch with, and what you talk about over lunch. In other words, to me, it seems to take all the fun out of it. It makes it seem like work. It puts you in the mindset that it is work. And, to be perfectly honest, I think it makes it less interesting, because you’re too worried about the time being put into it. Too worried about whether you’re writing for your “target market”. Too worried about “visualizing and addressing your market”. Too worried on making your blog sound “informal and conversational”. Too worried about this, that and the other thing, none of which have much to do with the subject matter of what you’re writing about.

Of course, this is just my take on blogging and what I hope to achieve (or perhaps rather not to achieve) by doing it.