Location-based service Loopt has been allowed its first patent, and it could be a big one.
The patent, as described, seems relevant to numerous existing products, including Google’s Latitude. In layman’s terms, it describes using your location to display relevant ads and offers on top of a map, as an interstitial, or as a text ad — another claim also discusses displaying where your friends are on the same map. The patent was first filed in 2007, with Loopt founder Sam Altman listed as the primary inventor (Loopt got its start long before the likes of Foursquare and Google Latitude).
The patent, which is listed as Application Number 11/931,113 by the US Patent and Trademark Office, still hasn’t technically been granted. But it has been “allowed,” which is a precursor to being granted. At this point, it could still be a few months before the patent is granted, assuming that Loopt pays all the proper fees and files the proper paperwork. ? Read More
The Libertarian Party of New Hampshire has petitioned the US Supreme Court to reverse the New Hampshire secretary of state and two lower courts that previously rejected the party’s claim to have exclusive right to use the word “Libertarian” in connection with political candidates appearing on the state’s presidential ballot. The LPNH, joined by 2008 national Libertarian Party nominees Bob Barr and Wayne Allen Root, objected to the inclusion of a rival Libertarian ticket on the last presidential election ballot. The LPNH said that decision violated its constitutional rights under the First and Fourteenth Amendments.
George Phillies and Christopher Bennett unsuccessfully sought the national LP’s presidential and vice-presidential nominations. Nonetheless, they successfully petitioned to appear on New Hampshire’s general election ballot. The LPNH is not a recognized political party under state law, so the Barr-Root ticket had to qualify using the same petition process as the Phillies-Bennett ticket. The secretary of state produced a ballot listing both tickets under their preferred description of “Libertarian.” Both tickets were listed under “Other Candidates” along with the ticket of Ralph Nader and Matt Gonzalez, who were described as “Independent.”
The Democratic and Republican parties, which are recognized under state law, have the right to exclusive use of their names on the general election ballot. The LPNH does not, according to the First Circuit Court of Appeals, which rejected the group’s lawsuit this past July. Notably, the LPNH did not challenge the discriminatory state laws that confer special privileges upon the “recognized” parties; rather, the LPNH said it was entitled to the same privilege to exclude any other independent candidate from using the label “Libertarian” on the state ballot. In its petition to the Supreme Court, the LPNH said New Hampshire had no legitimate state interest in allowing the Phillies-Bennett ticket to use the “Libertarian” label, which had the effect of “confusing” voters and “diluting” the LPNH’s overall vote:
[P]ermitting rival sets of candidates for president and vice president to be listed with the “Libertarian” appellation in the “Other Candidates” column on the New Hampshire ballot operates to encourage factionalism, to foster vote dilution, to diminish order in the electoral process, and to promote frivolous candidacies. (emphasis in original)
The dilution argument is comical. In the 2008 general election, the Barr-Root ticket received 2,217 votes versus 531 votes for the Phillies-Bennet ticket. Even combined, the Libertarian tickets would have still finished in fourth place behind the Nader-Gonzalez ticket and well behind the Obama-Biden and McCain-Palin tickets. Furthermore, the dilution had no effect on the LPNH’s ability to attain “recognized” party status. Under state law, a party must receive at least 3% of the votes cast for governor to obtain official status. There was only one “Libertarian” candidate on the 2008 gubernatorial ballot, who received about 2.1% of the vote.
The larger constitutional issue, according to the LPNH, is that the presence of the other “Libertarian” ticket somehow violates the First Amendment’s prohibition on state interference with free speech and free association:
[P]lacing the Libertarian nominees and their unsuccessful rivals for the nomination on the same footing by identifying them only as “Libertarian” subverts the political and associational message inherent in listing a candidate on the ballot as a representative of his or her party.
The First Circuit previously considered and rejected this argument:
What the [LPNH] appears to be arguing is that it had a free speech right to use the ballot to advertise who its nominees were. But the Supreme Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), expressly rejected the argument that a party “has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate.”
[…]
Even if we assume arguendo that the Libertarian Party has some interest in preventing voter confusion of its nominated candidates with other candidates who also espouse Libertarian ideals, the question of whether it may enlist state officials to prevent such confusion is one we need not reach on the facts before us. Here, the Libertarian Party has made no claim that Phillies and Bennett were not in fact Libertarians or that the ballot was otherwise inaccurate. And it has provided no evidence that the ballot misled voters in any way. On its face, the ballot did not itself indicate that Phillies and Bennett were the nominees of the Libertarian Party. It identified them, as well as Barr and Root, merely as Libertarian.
It’s hard to find fault with the First Circuit’s logic. While it may be unfair that the LPNH doesn’t have the same ballot access as the Democratic and Republican parties, there is no constitutional “right” to demand what amounts to an intellectual-property monopoly over the use of the word “Libertarian” on a ballot where two tickets qualified using an identical process. Phillies and Bennett had just as much right to use the word as the Barr and Root.
And it’s especially disturbing that any group calling itself “Libertarian” would resort to litigation based on such a distorted reading of the Constitution. There’s nothing principled about using the state to censor competing speakers. The LPNH should be working to eliminate, not extend, state privileges. The last thing any group of libertarians should be known for is demanding a state monopoly over words.
This article is part of the trend of more and more people seeing that something is wrong with IP. But like most conventionalist criticisms, it’s unprincipled and confused. It misses the boat. The author does not challenge the notion that patents ought to be granted for truly “original” inventions:
In theory, patents are granted only after strenuous tests of originality and appropriateness have been met, and should only be conferred on inventions that are entirely original, are not obvious, and have the potential to radically transform the way things are done. In practice, the bar has been lowered to allow a proliferation of trivial and contestable patents, especially, but not only, in the area of software and business method patents.
This implies that copying the really original innovations of other companies is somehow wrong, and that allowing lawsuits for patent infringement in these cases is legitimate. This would be “stealing.” As the author writes:
Nobody seriously believes that any of the companies or individuals accused of infringement has practised industrial sabotage or stolen the ‘property’ of anybody else. The purpose of these actions has been to make a fast buck or to inhibit competition. Ownership of software patents is not about innovation or originality.
So according to the author, the problem is not intellectual property in general, nor even patents in general. It’s just software patents, since they don’t really cover “original” and “innovative” inventions–the “bar is too low”. The problem he sees is that obtaining a software patent “requires minimal investment in staff, research, manufacture or the trading of hard goods.” As if a patent obtained from greater investment and trading in “hard goods” reduces the harm of the granting of patent monopolies.
Further, while it is true that it is harder for the patent office to competently (whatever that means) find relevant prior art for software inventions, it is not the case that all software patents are “trivial” in the patentability sense.
The way it works is that the PTO examiners usually cannot find all the prior art for any invention claimed in a patent application. The budget for the search is limited since it is paid for by a “search fee” portion of the patent filing fee, which is about $620 (or half that for “small entities”). So the Examiner can only do a fairly cursory search given this kind of budget. Contrast this with the fact that in patent litigation the defendant will often spend tens of thousands of dollars, or more, to engage in a much more thorough search to try to turn up relevant prior art that the patent examiner did not find, to try to invalidate the patent being aggressively used against the defendant. Of course, even if the defendant finds damaging prior art, the patent still carries a “presumption of validity” that has to be overcome with “clear and convincing” evidence (see my Supreme Court Keeps High Standard for Invalidating Patents). This presumption is perverse given the limited ability of the PTO to conduct a thorough search.
What this means is that any given issued patent, whether software or not, is presumed valid even though there might be prior art “out there” that, if the PTO had known about it, would have caused the patent to be rejected (or narrowed). Now, it is true that for software inventions a good deal of the relevant prior art is found in publications external to the standard PTO patent database, so it is probably the case that a greater percentage of software patents are “really” invalid than regular patents. But so what? This is just a difference in degree, not in kind.
The problem is not software patents. The problem is not “trivial” or “junk” patents. Even if you get rid of software patents (though I’ve written maybe 100 of them and am not sure you can define it rigorously to carve them out), even if every patent that issues is 100% “valid”–still, we have companies using patents to stop competitors from competing. This is the problem that software patent opponents need to see.
Gene Quinn, a patent lawyer who insists on having an Opinion, previously banned me from commenting on his joke of a patent shill site, for daring to call a spade a spade.1 Now this intellectual buffoon has banned the heroic legal philosopher and IP abolitionist David Koepsell. I guess Kevin Carson is next. Purge, purge!
Of course it’s (legal) extortion; of course it’s a shakedown. Duh. Post by MG Siegler on Techcrunch:
Google On Microsoft’s Android Patent Tactics: It’s Extortion
Earlier today, Microsoft and Samsung disclosed that they reached a cross-licensing agreement over patents. The key point: it’s a bad blow to the notion that Android is free. Instead, it’s more like “free” with huge Android OEM partners like HTC and now Samsung agreeing to pay Microsoft to use Android. Google must be pissed off.
And they are. Here’s their statement:
“This is the same tactic we’ve seen time and again from Microsoft. Failing to succeed in the smartphone market, they are resorting to legal measures to extort profit from others’ achievements and hinder the pace of innovation. We remain focused on building new technology and supporting Android partners.”
It’s not technically extortion because it’s legal, but it’s otherwise the same. Just like taxation is theft except that it’s legal. Someone needs to read their Bastiat.
A promising new blog: The Patent Examiner, by the heroic Joe Mullin, which “focuses on tech-sector patent lawsuits—especially the widespread patent suits filed by companies that specialize in patent enforcement. These companies are sometimes known as “patent trolls,” but are also called non-practicing entities (NPEs), patent-holding companies, and other names.”
A new policy at Princeton prohibits (unless a special waver is granted) professors from assigning exclusive rights to publishers. This might at first appear to be a mandate but it is really a liberation. Professors have been browbeat for generations by publishers who demand all rights to an author’s work, which, under the law, they can keep for a lifetime. The new university rule makes it possible for the faculty to insist on a different policy. It is obviously true that faculty want open access and certainly do not want publishers to maintain exclusives to an author’s work. This policy might also help to crack the cartel and force a change of policy at major publishing outlets, which have been reluctant to change even in the digital age.
Amazon introduced a new tablet today, the Kindle Fire, which uses the “Silk” browser, which is discussed here, and in the video below. One smart thing Silk does to speed up web browsing as seen by the user of the Kindle Fire by “pre-loading” content into Amazon’s “cache” in its own “Amazon computer cloud” (i.e. Amazon’s servers)–and to optimize them for the Kindle Fire (e.g., a 3MB image is scaled down maybe to 50k because that would look the same on the Kindle Fire as a 3MB image, but could be transmitted more quickly). But to do this Amazon’s servers have to store copies of files obtained from other websites, including images (as explicitly stated at 3:07 to 3:26) and other files which, of course, are covered by copyright. At 3:54, it’s explained that if Amazon’s computing cloud sees you looking at the New York Times home page, and it predicts, based on other user statistics, that you are somewhat likely to next click on some NY Times subpage link, then the Amazon servers will go ahead and download that next link, and cache it, in case you do click on it next, so that it can serve it up more quickly.
Now this makes sense technically, but what it really means is Amazon’s servers are making copies of other people’s copyright-protected content: images, files, NYTimes web pages, and serving them up to Kindle Fire users as if the Amazon computer cloud servers are the host of those images. It is a bit like if Amazon ran a site called NYTimes2.com, and had its servers constantly copying content from NYtimes.com and duplicating it on NYTimes2.com, and serving up the content on NYTimes2.com (which was copied from NYTimes.com) to browsers. And who can think that would not summon a lawsuit?
Now, does the idea make technical sense? Yeah. It’s brilliant. Does it infringe copyright? Well, I guess we’ll see! But thank God copyright is there to promote innovation!
Update: In comments on Facebook and elsewhere, several people have asked whether this isn’t just “temporary” or “ephemeral” caching that somehow does not “count” as copyright infringement. I’m of course aware of various provisions of the 1998 Digital Millenium Copyright Act (DMCA) (I taught this in a computer/Internet law class for two years at a local law school in 1998-99 and have written in this general area)1 There is a provision of the DMCA that purports to limit ISP liability for the purposes of caching (see 17 U.S.C. § 512(b); and Wikipedia articles on on this section and on web caching). For example, in the 2006 case Field v. Google (discussed here), a federal court ruled for Google when it was accused of copyright infringement because it was caching the plaintiff’s website and making a copy of it available on its search engine.
However, it is not immediately clear to me that the “caching” Amazon plans to do is the same as that done by Google or, in any case, that the “caching” is protected under the statute. Google is providing search results; it is not serving up web pages in place of the original host. And Section 512(b) of the DMCA, which concerns the practice of caching, specifies that “A service provider shall not be liable … for infringement of copyright by reason of the intermediate and temporary storage of material … ” It also provides conditions that must be met for this limitation of copyright liability to apply, including “the material … is transmitted to the subsequent users … without modification to its content….” What is “temporary”? The way I understand the amazon cloud working, it could store sites, pages, and files for months, or even longer. Is that temporary? And if a 50k version of an image is sent to the user instead of a 3MB version, is that a modification of the content? It seems to me that there is enough uncertainty here in the statutory language that some content provider or copyright troll wanting to cause trouble could make an argument against Amazon’s caching practices. Professor Tushnetin the comments to the Mises cross-post says that Amazon needs to “follow any rules that the originating website has about refreshing content” [which is in Sec. 512(b)(2)(B)] and observes that there is no reason to think Amazon will cache the files “forever.” It’s not clear to me that satisfying the rules for refreshing implies that “temporary” in the statute means “not forever.” If the files for a relatively static site, that changes rarely, are downloaded by the Amazon server, it could be serving up the files for a whole website or web page for months or more. This is compliant with the originating site’s rules on refreshing, perhaps, but is it “temporary”?
Professor Tushnet also says that that “automatic conversion for convenience into a different format or resolution is fine,” i.e., that there is no concern about modifying files, pointing to the case IO Group, Inc. v. Veoh Networks, Inc. Again, she may be right; but that case dealt with Sec. 512(c), not (b), so it’s not clear to me that Amazon’s scaling and optimizing of the stored files satisfies the “without modification” requirement of Sec. 512(b).
Professor Tushnet also says, “You could say that anything is uncertain until specifically litigated. But I don’t think that’s true, and I don’t think people should behave as if it is true; that just lets copyright expand ever further.” I appreciate this, but the problem with legislation as a general matter is that it is almost always inherently vague2 and its provisions self-contradictory or contrary to those in other statutes or natural rights. When we have copyright trolls suing left and right, is it possible someone might sue Amazon for copyright infringement despite Amazon having good arguments that they qualify for the DMCA’s caching safe harbor rules? Sure. Is it possible Amazon would lose? I could be wrong, but it seems to me they could.
Now, I suspect Amazon’s lawyers have gone through this and think they have good arguments that their caching is not copyright infringement. But who knows? My point in this post was not that this is definitely copyright infringement–just that there is legal uncertainty, and it “could” be–that’s why I concluded the original post, “Does it infringe copyright? Well, I guess we’ll see!” If it turns out that it is, this just shows another problem with copyright: that it would prevent this kind of great technology. And even if it doesn’t prevent it, until we know for sure, there is legal uncertainty. And, of course, one problem with legislation is that it increases uncertainty (see my “Legislation and Law in a Free Society”).
guess why the amazing band Hooverphonic had to change their name from Hoover to Hooverphonic? You guessed it, evil IP law (trademark). And see https://t.co/WVJiBxAnVT Congrats IP socialist libertarians
As background, be aware that the two big comic competitors for decades have been DC and Marvel. DC is the home of Superman, Batman, the Flash, the Green Lantern, and Wonder Woman. Marvel is the source of Spider-Man, the Hulk, Thor, the Fantastic Four, and so on.
The Superman character was created by Jerry Siegel and Joe Shuster in 1932, and sold to Detective Comics, Inc. (later DC Comics) in 1938. Superman debuted in Action Comics that year. A “similar” character, Captain Marvel, sometimes known as “Shazam!”, was originally published by Fawcett Comics, and created in 1939 by artist C. C. Beck and writer Bill Parker. Both are powerful, both have alter egos. But of course there are many differences. In any case, Captain Marvel is now a DC character. Wanna know why? Because, as the Captain Marvel wikipedia page explains:
Fawcett ceased publishing Captain Marvel-related comics in 1953, due in part to a copyright infringement suit from DC Comics alleging that Captain Marvel was an illegal infringement of Superman. In 1972, DC licensed the Marvel Family characters and returned them to publication, acquiring all rights to the characters by 1991. DC has since integrated Captain Marvel and the Marvel Family into their DC Universe….
Got that? DC killed Fawcett’s “Captain Marvel” character, using copyright law, on the grounds that he was a copy of Superman. Evidently not too much of a copy, as they gobbled the wounded character up and then incorporated him into the DC universe–since he’s a distinct character, you see, and not a mere copy of Superman.
Interestingly, however, DC can no longer use “Captain Marvel” for comics featuring, er, Captain Marvel. This is because Marvel Comics has its own Captain Marvel which it secured trademark rights to during the copyright squabbling between DC and Fawcett over the DC Captain Marvel.
Marvel Comics trademarked their Captain Marvel comic book during the interim between the original Captain Marvel’s Fawcett years and DC years, DC Comics is unable to promote and market their Captain Marvel/Marvel Family properties under that name. Since 1972, DC has instead used the trademark Shazam! as the title of their comic books and thus the name under which they market and promote the character. Consequently, Captain Marvel himself is frequently erroneously referred to as “Shazam”.
Even though the Marvel character is not that popular, lore has it that Marvel publishes some kind of book featuring their Captain Marvel every year or two, just to keep their trademark alive so that DC can’t get it back.
In another copyright-superhero twist, the young or alternate version of Superman, known as Superboy, has also had name problems. The estate of one of Jerry Siegel, the original creators of Superman, sued DC claiming that it owned “the original ‘Superboy’ character” and that it “is an independent creation that used ideas from Jerry Siegel’s original rejected pitch and was created without his consent.” In 2006, a judge ruled “that Jerry Siegel’s heirs had the right to revoke their copyright assignment to Superboy and had successfully reclaimed the trademark to the name as of November 17, 2004.”
“Since the ruling, the name “Superboy” has rarely been used in print to refer to any version of the character,” and the Superboy character (in his current “Superboy-Prime” variation) started being referred to as Superman-Prime.
As Mises explained, controls breed controls.1 But monopolies also breed monopolies.
First the state is granted a monopoly in dispensing justice.2 Then, it uses this position to grant monopolies, such as patent and copyright, to favored recipients. These recipients are thus able to charge monopoly prices, and to establish oligopolized industries relatively immune from competition. This allows them to afford the purchase of more state monopolies (such as expensive patents) that smaller upstarts, newcomers, and competitors cannot, further entrenching their monopoly position.3 Barriers to entry are maintained, allowing the entrenched, established firms to reap monopoly profits. A portion of these profits are returned to the state in the form of legal bribes (campaign contributions) which keep the legislators from rocking the boat. And so the cycle continues.
This is not too surprising to libertarians used to seeing state corruption. What is surprising is the spectacle of some libertarians bending over backward to try to justify this, in the name of intellectual “property.”
“interventionism cannot work as a permanent system of society’s economic organization. The various measures recommended must necessarily bring about results which—from the point of view of their own advocates and the governments resorting to them—are more unsatisfactory than the previous state of affairs which they were designed to alter. If the government neither acquiesces in this outcome nor derives from it the conclusion that it is advisable to abstain from all such measures, it is forced to supplement its first steps by more and more interference until it has abolished private control of the means of production entirely and thus established socialism. The conduct of economic affairs, i.e., the determination of the purposes for which the factors of production should be employed, can ultimately be directed either by buying and abstention from buying on the part of consumers, or by government decrees. There is no middle way. Control is indivisible.” Mises, Economic Freedom and Interventionism, ch. 10. [↩]
Hoppe defines the state as: “What must an agent be able to do to qualify as a state? This agent must be able to insist that all conflicts among the inhabitants of a given territory be brought to him for ultimate decision-making or be subject to his final review. In particular, this agent must be able to insist that all conflicts involving himself be adjudicated by him or his agent. And implied in the power to exclude all others from acting as ultimate judge, as the second defining characteristic of a state, is the agent’s power to tax: to unilaterally determine the price that justice seekers must pay for his services. Based on this definition of a state, it is easy to understand why a desire to control a state might exist. For whoever is a monopolist of final arbitration within a given territory can make laws. And he who can legislate can also tax. Surely, this is an enviable position.” See The Nature of the State and Why Libertarians Hate It. [↩]
Despite serious Constitutional concerns in the US, and significant legal questions in the EU, it appears that the US and the EU, along with most of the other participants in the ACTA negotiations are planning to sign ACTA this weekend in Japan. In the US, this may very well lead to a Constitutional challenge. President Obama, via the USTR, is ignoring the Senate’s oversight concerning treaties, by pretending ACTA is not a treaty, but rather an “executive agreement.” Pretty much everyone else agrees that ACTA is a binding treaty — in fact, EU negotiators have been quite vocal on that point.
But even if this is considered “an executive agreement,” the President does not have the authority to sign an executive agreement concerning intellectual property issues. Executive agreements can only be signed if they cover issues solely under the President’s mandate. But intellectual property issues are clearly under Congress’s mandate, and nowhere in the Constitution is the President given a mandate over IP issues. This is a clear end-run around Congress, and seems likely to be unconstitutional.
What I really don’t get is why they’re making such an end-run. As we’ve seen with things like PROTECT IP, most of the Senate seems to have no problem propping up the entertainment industry’s legacy players with bogus laws and “greater enforcement.” It seems likely that ACTA would probably sail through the Senate with little problem. But the administration seems to not even want to have the slightest debate on the topic — which is greatly troubling, considering that the USTR negotiated the agreement in near total secrecy, refusing to allow public comment or debate (outside of leaks which it tried to block) until after the document was done.
The others that are listed as planning to sign the document are Japan, Australia, Canada, South Korea, Mexico, Morocco, New Zealand, Singapore and Switzerland. Basically all the countries who took part in the negotiations. The fact that Mexico is on that list is interesting, given that the Mexican Congress has already told the Mexican President that it will not ratify ACTA, and made it clear that Mexico needs Congress to ratify ACTA to have it go into effect. In other words, it sounds like Mexico is facing a similar executive run-around as in the US.
It’s pretty amazing. This isn’t even just about Presidents doing an end-run around the public, but around their own legislatures. And for what? A bailout of some legacy entertainment industry players who are unwilling to adapt.
Interesting NYTimes profiles of Brazilian novelist Paulo Coelho, “Best-Selling Author Gives Away His Work”:
A publishing industry that is being transformed by all things digital could learn some things from Paulo Coelho, the 64-year-old Brazilian novelist. Years ago he upended conventional wisdom in the book business by pirating his own work, making it available online in countries where it was not easily found, using the argument that ideas should be disseminated free. More recently he has proved that authors can successfully build their audiences by reaching out to readers directly through social media. He ignites conversations about his work by discussing it with his fans while he is writing.
Whether you agree with the original purpose of patents in America or believe (as I do) that all patents are improper, the America Invents Act is repellant.
I discussed the America Invents Act in detail in a recent Mises Academy Webinar, discussed here; audio is here and streaming below; the powerpoint slides are below.
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
We provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation perspective.
Location-based service Loopt has been allowed its first patent, and it could be a big one.
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