EFF fights bad patent, copyright claims

I'm going to close the week with another intellectual property post. From where I sit, it can be hard to see the downside of overly strict copyright law. Patent law, on the other hand, can be a little more clear. To people on the outside looking in, anyway. The problem is real. According to the EFF's "Patent Busting Project,"

Now some patent holders have begun to set their sights on the new class of technology users - small organizations and individuals who cannot afford to retain lawyers. Faced with million-dollar legal demands, they have no choice but to capitulate and pay license fees - fees that often fund more threat letters and lawsuits. And because these patents have become cheaper and easier to obtain, the patentee's costs can be spread out quickly amongst the many new defendants. Our patent system has historically relied on the resources of major corporate players to defeat bad patents; now it leaves these new defendants with few if any options to defend themselves.

Here are some examples of patents considered bad by the EFF:

• One-click online shopping (U.S. Patent No. 5,960,411.)
• Online shopping carts (U.S. Patent No. 5,715,314.)
• The hyperlink (U.S. Patent No. 4,873,662.)
• Video streaming (U.S. Patent No. 5,132,992.)
• Internationalizing domain names (U.S. Patent No. 6,182,148.)
• Pop-up windows (U.S. Patent No. 6,389,458.)
• Targeted banner ads (U.S. Patent No. 6,026,368.)
• Paying with a credit card online (U.S. Patent No. 6,289,319.)
• Framed browsing; (U.S. Patent Nos. 5,933,841 & 6,442,574.) and
• Affiliate linking (U.S. Patent No. 6,029,141.)
  

Imagine if the holder of U.S. patent No. 4,873,662 - the hyperlink - were to sue all of the websites using hyperlinks. Every website would have to either pay up or cease to exist. Ok, they could refuse to pay up and continue to exist, but they'd be pretty boring without any links to click on.

The EFF also asserts that bad patents can also threaten free expression by allowing the patent holder to threaten anyone using the technology for any purpose, whether or not the use causes any harm to the patent holder, is used for non-commercial purposes, or the user had any idea they were even using an infringing technology.

The latest patent infringement claim on the EFF's radar is made by a company called Flightprep against a company called RunwayFinder. The EFF believes the copyright is one that should never have been granted. In their words:

this dispute is emblematic of a patent system that has lost sight of its purpose. Instead of spurring innovation by encouraging folks to invent new and better ways to do things, the system is often used to impede the development and use of interesting and valuable new tools and services.

And that is a problem. The EFF works both to fight bad copyrights and to educate people about their rights when it comes to intellectual property. To facilitate the latter they have formed a joint venture with several university law departments called the Chilling Effects Clearinghouse.

The Chilling Effects website has information for people who are active online, whether it's commenting on blogs, creating fanfiction, blogging or creating an information site about your favorite hobby, or giving your opinion of your favorite (or least favorite) person. But it's primary purpose is to catalogue, analyze and clarify cease and desist orders so if you receive one the legaleze won't overwhelm you.

The purpose of the Chilling Effects Clearinghouse isn't to enable IP infringement, it is to help people stand up to IP bullying. In the last twenty years it has become much easier to steal intellectual property. It has also become much easier to threaten and bully people into submission if what they're doing could hurt your business - regardless of whether they're doing anything wrong or not. Especially if you have a lot of money and they don't.

What is happening to Intellectual Property law in this country?

The last couple of months have seen interesting developments in Intellectual Property (IP) law. The Combatting Online Infringement and Counterfeits Act (COICA) made it through Committee in the Senate. The Department of Homeland Security (DHS) is being used to enforce IP law by the Department of Justice (DOJ). Internet domains are taken down with no warning to disrupt the sale of counterfeit goods. According to the press release from the DOJ:

The coordinated federal law enforcement operation targeted online retailers of a diverse array of counterfeit goods, including sports equipment, shoes, handbags, athletic apparel and sunglasses as well as illegal copies of copyrighted DVD boxed sets, music and software.

Makes sense and seems reasonable. But they seized at least one search engine that never hosted torrents or knock-off items. That is disturbing. What would happen if DHS suddenly decided to seize Google? Bing? You can find torrents and knock-offs on those sites, too. Shutting down a search engine because you can find pirated movies is like shutting down a library because you can find the formula for TNT.

Historically IP crimes have been civil matters. But recently they have begun to be pressed as criminal offenses. Take a case reported by Wired.com, the case of Matthew Crippen. Crippen is charged with two counts of circumventing DRM on XBox video consoles by installing mod chips that allowed people to run homegrown software, RIPped DVD's, and other 'unofficial' content, although he could have been charged with many more counts. His lawyers are trying to use the recent decision granting jail-breaking the iPhone an exemption under fair use as part of their defense strategy. If they lose he's facing 3 years in jail, although it could have been as long as 10 years.

Why is the Department of Homeland security enforcing copyright law? Why are IP cases being tried as criminal cases? Why are we changing our IP suspects guilty until proven innocent? How can we fix these problems?