The Richter Scale^®

One of the news services I get daily clips from about various intellectual property issues in this electronics age is Doug Isenberg’s Gigalaw. This morning one of the headlines caught my attention: Fair Use Bill would ‘Legalize Hacking.’ RIAA Says. Boo hoo for the RIAA.

”Fair Use” is a long standing doctrine under U.S. copyright law, which permits limited use of copyrighted material without permission from copyright holders for scholarly efforts and review. The fair use doctrine has also been applied to the right of consumers to make backups of software they have purchased. Under the fair use doctrine, we can backup our CDs to our hard disks to preserve our purchase and data. However, fair use does not permit one to wantonly make copies of things and distribute them to others.

But that distinction does not matter to the Recording Industry Association of America (RIAA), an organization which helped bully the Digital Millennium Copyright Act through Congress in 1998. The DMCA made it illegal to reverse engineer and disable most any effort used to protect digital content. The DMCA effectively slammed the door on fair use as provided for in copyright law.

Now, U.S. Representatives Rick Boucher, a Virginia Democrat, and John Doolittle, a California Republican, according to an article in InfoWorld, have introduced a bill called The Freedom and Innovation Revitalizing U.S. Entrepreneurship (FAIR USE) Act in order to restore fair use rights to consumers.

This new bill upsets the RIAA greatly, considering that they have worked hard to trample upon the rights of consumers with the DMCA, and then have embarked upon a “reeducation” campaign about file sharing, where the educational part involves suing everyone they think has been illegally sharing music files. Very consumer friendly organization, the RIAA - not!

Under the DMCA, without fair use provisions, we consumers are beholden to the whims and mercies of distributors of electronic media content under the guise (or curse) of something called Digital Rights Management (DRM). DRM is a bane to one’s being able to freely use purchased media for one’s own use. For example, if you buy a movie from Xbox Live Marketplace to view on your Xbox 360, you have a limited number of views and days in which to do the viewing, and then poof, the content is no longer accessible. With Apple iTunes music and video, you can only view the content on a limited number of “authorized” PCs or Apple iPod players. Should Apple decide to stop supporting iTunes platform at some point in the future, you would no longer have access to that content. And the future is even scarier as some companies have suggested that we should pay for every use of content - imaging being charged money for listening to the same song over and over, or having to pay something every time your kid wants to see Shrek on your TV, even if it’s the 17th viewing of the same movie.

On the flip side, if you take care of your CDs and DVDs, you can have them last decades (in theory), and you can also backup the CDs into whatever the most current safe storage form is (and DVDs too, but then arguably you’re breaking the laws created by the DMCA). And you don’t have to pay for repeated use.

Our use of content as consumers and purchasers should not be dictated solely by draconian organizations like the RIAA, nor by corporations looking to squeeze us for more money at every turn.

Boucher and Doolittle are doing a great thing by introducing this bill. One can only hope that their efforts to protect consumers will win against the big dollar lobbying by the music and movie industries. Boucher is no stranger to the fight for Fair Use, incidentally - in 2001, he gave a speech about this very topic.

There’s no question that copyright law needs to be respected. Artists and creators of works - whether they be musicians, writers, actors, software developers, artists, or any one of a near limitless number of professional content creators - need the respect (and revenue) their works generate. Making copies of content and given them to one’s friends is wrong (we call that stealing), and selling illegal copies for a profit is even worse (we call that piracy). But on the other end of the spectrum is the fair use doctrine, and the necessary right of people to protect the investment they have made in their purchases. That right needs to be returned to the people, and protected.

As an active (some might say hyper-active) consumer of digital media I find DRM (Digital Rights Management) to be annoying at the very least, and downright malodorous at worst. DRM is what prevents you from playing downloaded music from _________ (insert one of: iTunes, Napster (new one), Yahoo Music, Real/Rhapsody, etc.) on any device or platform you want, any time you want, for example.

And DRM is not limited to only music - it applies to eBooks (like those for my Sony Reader or the occasional standards documents I need to purchase from IHS/ANSI); videos (iTunes TV shows, for example), and movies (e.g. Xbox Live movie downloads which can only be stored for a few days, and played only a few times; Microsoft’s Vista operating system will require LCD (or other) displays to have HDCP - High Definition Copy Protection - in order to play back HD video content from Blu-ray and HD-DVD; Apple’s new iTV with iTunes; and the reason I cannot watch TV shows at ABC’s web site while back home on Bonaire because I am outside the U.S.).

The truly scary thing about DRMed content, at least to me, is that the company I bought it through could decide at some point that my right to view or listen to the content should be terminated, and there’s not much I could do about it (other than keep computers in Internet isolation, perhaps). Or that some technological mishap prevents me from playing purchased media forever.

And then there are changing standards and allegiances, as witnessed by Microsoft’s desertion of all of its Plays For Sure partners when the company decided to release the Zune player.

The big media publishers are driven by fear - fear of loss of control, fear of lost revenue, fear of alienating their artists - and that fear has more or less paralyzed them. Their knee jerk response has been to vastly restrict how digital content can be purchased and used, combined with an effort to scare those who don’t respect (or are ignorant of) intellectual property rights into submission. The result is an alienation of their customers. Like me.

With the rare exception of a TV show I may order and download from iTunes for my video iPod, knowing I will only view it once, my form of protest to DRM has taken the form of either viewing/listening to the material for free or simply purchasing physical media that I can play anywhere, anytime, and rip to my computer hard disk if I so wish. And apparently I’m not the only one doing this as is evident from the growing indications that the music industry is looking at options for selling non-DRMed MP3 music files to boost their electronic sales and also reduce their dependence on the monster they created - Apple’s iTunes.

A December 7, 2006 article in USA Today offered one of the first hints of this as Yahoo Music became one place where an MP3 (which is by definition not DRMed) file for a Norah Jones song as well as one from Relient K became available for sale.

Then, a couple of days ago, Billboard magazine (as republished by Yahoo News) released further hints that DRM is being reconsidered by at least some music publishers, especially under pressure from some large on-line sites, such as Amazon.com and MySpace.

I, for one, would be right there with my money in hand to buy non-DRMed MP3 music files at a reasonable price - like $0.50 each - and I suspect that folks who now knowingly steal music for their collections but have the means to pay for their music would do so to to be legal and support the artists they like.

Lower priced, unrestricted music files, combined with a marketing campaign to make the artists seem a bit more human and approachable would do wonders for the music industry, and perhaps create a revival for digital music at large.

Google yesterday announced a new feature - searching and displaying U.S. patents. And as with everything Google does, this new feature is well implemented and easy to use.

The location for the Google Patent search is http://www.google.com/patents.

You can do full text searches on published U.S. patents (published U.S. patent applications and non-U.S. patents are not supported at this time, but Google has indicated that those may be supported in the future).

When you get a result list back from a search and click on one of the results (which will be a patent), you then have the option to read the patent pages, as well as search further in that particular patent - a very nice feature. If you opt to read the patent pages, they are brought up in special Google-developed viewer, with search terms highlighted on the page - also a very nice feature. However, it’s only as good as the OCR quality, as I discovered.

With my Patent Fetcher hat on, I am a bit relieved that Google is not offering PDF downloads of resulting patents, although frankly that would be a nice feature to have.

While dedicated patent search sites like Delphion are still far superior in some of their search capabilities compared to Google Patent Search, Google’s new search offering is vastly better than what the U.S. Patent & Trademark Office offers for issued patents, and certainly its patent viewing feature is very useful too.

More details to be found at http://www.google.com/googlepatents/about.html.

If you’re interested in what’s happening in the world of patent litigation, the folks over at Rethink(IP) - a blog devoted to “Rethinking the Practice of Intellectual Property (IP) Law”, provide a nice service.

They have managed to get some software developed which generates a list of the most recently filed patent suits all over the U.S., and publish that information on their site. The most recent such list can be found here.

The lower case letters until the title of the suit (which names the litigants) indicates which court the action is taking place in, while the docket number and date of suit can be found in the third and fourth lines of each listing. That information is sufficient to get you access to the briefs filed with the court, in most cases, via a service like PACER.

Rethink(IP) provides similar listings for copyright and trademark litigation.

I subscribed to their FeedBurner RSS feed so that I get the patent suit listings e-mailed to me. Very convenient and a great service.

I’ll be spending all next week in Los Angeles for the E3 show and conference.

E3 is the video game and entertainment industry event of the year, where all the latest games in development are previewed for buyers and the media. Stay tuned here for on-going reports from the show, including some cell-phone photo and story blogging similar to my live posts from E3 last year.

I will also be convering industry trend issues and intellectual property matters for my column in Jon Peddie’s TechWatch.

Those of you who feature links to patents on the U.S. Patent & Trademark Office (USPTO) web site on your own sites or in your Favorites, beware. On Tuesday, May 2nd, around 4:30pm EDT, the USPTO switched their patent search system over to a new set of servers which changed a number of things.

This change, as best I can tell, was not announced (if anyone finds an announcement, please let me know).

The biggest change in the new patent search database form are that all patent numbers now must be seven characters in length, padding the left end of patent numbers with zeros. So, the design patent D123,456 now needs to be specified as D0123456, for example.

This change to new servers at the USPTO also resulted in links to search results no longer working as the URLs for search results have changed subtly too. So, any Favorites you might have stored in your web browser to link to a particular patent are now broken too.

I noticed the change a couple of hours after it happened because of both high error reports and a user complaint the that Patent Fetcher service I developed a few years ago had stopped functioning properly for fetching patent publications from the USPTO servers not already on the Patent Fetcher file server. It took several frantic hours of coding, but Patent Fetcher now works just as it did before (and leading zeroes are not required).

I should note that U.S. patent applications were unaffected by this change, as they are located on other servers at the USPTO.

As I predicted a few weeks ago, the threat of an injunction against Blackberry owner RIM by NTP for patent infringement, and the way patent litigations tend to work out, it was announced a couple of hours ago that RIM and NTP have settled the litigation, with RIM agreeing to pay NTP $612.5 million in exchange for laying to rest all current litigation.

Presumably, any such agreement will also grant RIM a non-exclusive license to use the patented technology, a license which would be conferred upon RIM’s customers as well, at least while they are using RIM’s products.

I’ve been catching up on my magazine and journal reading and recently finished the February 2005 issue of MIT’s Technology Review, which has a fascinating article by Sam Williams entitled “Unnatural Selection”.

The article explores using machines programmed with genetic algorithms to create new technology. An example given is NASA having a computer design an antennae for a trio of miniature satellites which feature both wide beam and wide bandwidth. The resulting antennae looks like something of a corkscrew, but is better than anything designed purely by humans (at least so the article implies).

What I found particularly interesting however was in the closing paragraphs, where Stanford University’s John Koza, professor of biomedical informatics, has developed a genetic program to design, among other things, electronic circuits. The paragraphs in particular which drew my interest are:

By the time Koza’s group tested the fourth or fifth versions of their program, however, something even more surprising began to happen: the program kicked out circuit designs unpublished anywhere in the patent literature. Two of these designs—a pair of controller circuits that regu­late feedback—were so original that Koza and his colleagues have taken out patents on them.

As proud as he is of his software, Koza isn’t about to assign responsibility for the new designs to the program itself. The patents credit Keane, Koza, and Streeter, in that order. But there are a few new pseudophilosophical conundrums lurking here: If something is invented with no human near, is it really an invention? Who is the inventor? And if the invention actually works, does it matter if we don’t understand how?

I find this a rather troubling commentary. Section 102(f) of U.S.C. 35, the law governing patents, clearly states:

35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.
A person shall be entitled to a patent unless —…
(f) he did not himself invent the subject matter sought to be patented, or...

If it was a machine which invented the new circuit design, then arguably, no person did. Sure, a person programmed the machine at some point, but genetic programming includes by definition evolution of the program. So, arguably Keane, Koza, and Streeter should not be able to file for a patent on something they themselves did not invent. Or should they? In the plant world people are claiming they invented (discovered?) naturally occurring compounds. Perhaps the belief is that as artificial intelligences have no status under U.S.C. 35, then it’s perfectly fine for a human to take credit for discovering the results a machine has produced.

I would love the insight of some others in the patent field on this subject.

If you’re like me - married, with two pre-teen kids whose hands never seem to be clean enough, and whose abilities to put things away without being asked are utterly lacking - you have undoubtedly seen your CDs or DVDs get damaged or even lost.

Further, if you travel a lot, while it’s nice that most notebook computers now have DVD drives, they suck a noticable amount of extra power if you want to play a movie while in flight and power jacks aren’t available.

For CDs, you can simply back them up by ripping them to your computer - my whole collection of hundreds of CDs is stored digitally on my system at home, and the original CDs are put in my storage room.

With DVDs no such simple option exists, or should I say, existed. That’s because the movie industry decided to encrypt DVDs, and then using its political clout, got the U.S. Congress to pass a bill (the Digital Millennium Copyright Act - the DMCA) which made it illegal to circumvent encryption. By doing that they technically robbed consumers of the right to make back-ups.

It didn’t take long for ingenious teenagers to figure out the encryption and break it, for the stated purpose of being able to play DVDs on Linux systems. While the simple code needed to break the CSS decryption spread over the Internet like wildfire, the movie industry and U.S. government worked hard to try and curtial this dissemination of information (and failed, in my opinion).

There are now dozens of programs which let one rip a DVD to one’s hard disk (one of the better ones, as I understand it is DVD Decrypter, but the problem is that the resulting files run 4.5-9GB on average, and even with today’s latest 500GB drives, it makes ripping a whole DVD collection (we have over 300 DVDs in ours here at home) unfeasible.

Enter a program called RatDVD, which will take a non-encrypted DVD image and produce a 1.3GB (on average) .ratDVD file which is the entire DVD movie with all menus and controls. The output quality is surprisingly good, with .ratDVD files playing back in Windows Media Player 10 on Windows-based machine.

It takes a couple of hours to convert a 4.7GB DVD to a .ratDVD file on a moderatly fast PC.

The only drawback I have found is that there appears to be no way to fast forward or rewind a movie.

One added bonus - you can take a RatDVD file and expand it to burn back onto a DVD should you want to have a physical back-up instead of one on your hard disk.

In any event, for a free piece of software it’s pretty good, and it meets a so-far unfulfilled need, namely making back-ups of DVDs in a reasonable amount of space. No doubt the movie industry will not be happy with RatDVD, but since it actually does not circumvent encryption, it’s unlikely they will have much ability to stop RatDVD from proliferating. Plus it can be used for archiving home-made DVDs.

I’ve already started using RatDVD to archive DVDs I have made from my own home videos and slide shows I have made of group vacations for friends. And yes, I am making back-ups of some of the movies I plan to watch during my next set of travels so I don’t have to waste power and face potential damage to my original DVDs in transit.

I give RatDVD an 8.5 out of 10.0 on The Richter Scale.

Alan Nelson is the person who helped me make sense of blogging during a flight from Bonaire to San Juan, Puerto Rico a few months ago, and thus inspired me to start this blog (thank you Alan!).

Recently, Alan launched the latest of his many blogs - Seat 1A. (As an anecdote, I should mention that when I met Alan, he sat in Seat 1A of our ATR-72 to San Juan, while I sat in 1B - row 1 being the only row with leg room on these small planes.)

In his latest blog entry, Alan succinctly covers the issue of pruning, as suggested by the author of the most excellent book Getting Things Done (a must-read for anyone who has problems getting through his or her to-do list on a regular basis, and in a timely fashion).

Basically, as I understand it, pruning involves taking what one has written and then removing words without destroying the essence of what one needs to convey.

This is something I have tried to work on over the years as I have gotten involved in patent litigation matters - brevity for things like claim constructions is a highly prized skill, and one that causes great agony as the meaning of each word - and every nuance thereof, must be carefully analyzed before being permanently committed to paper. That’s because the other side will then attempt to rip your work apart, and you must be able to defend what you commit to - every nuance of it.

However, as a matter of practice, I pretty much suck at “pruning”. I find it far easier to write 800 words to say something than to use 400 words to say the same thing. The most difficult writing assignment I ever had was for PC Magazine about 15 years ago, when I was asked to describe in detail this very cool (at the time) technology from a company called Edsun Labs, in a 400 word article. That article took me about five times as long to complete than doing the same thing in double the number of words would have taken. And while my editor liked the result, I was not happy with it because I felt it left too much unsaid.

If you’ve seen Milos Forman’s movie Amadeus starring Tom Hulce, you may recall a scene where Mozart presents his latest composition to the King, who after a moment’s contemplation asks the court composer for comment. The response is “too many notes”, and the King, apparently not wanting to appear ignorant, agrees, although the comment is pretty nonsensical. Mozart then asks “Which notes should I take out, your highness?”.

Any reader of my blog might also note that brevity (at least in writing) is not my strong suit. But for that I make no apology. It’s the way I have learned to enjoy writing (this coming from a person who dodged writing-dependent courses in high school and college as if they were poison), and will likely continue to do so in the future.

And thus I may suffer from “too many notes”, but at least I will have said what I wanted to say, with just the right number of words for me.