1. 1(#total) CS5038: The Electronic Society Intellectual Property: Patents, Software Patents/Copyright and Open Source Outline Patents What are they, Advantages, Criticisms Software patents Uses, Effects, Problems, Solutions Open source software Copyleft and GPL Enforcing GPL Open source difficulties DMCA, money, image Note: Much of this lectures material was written by Georgios Kritikos and Chris Walker, and later modified by others.

2. 2(#total) What is a Patent? Exclusive rights granted for a Fixed period of time (4-20yrs) for a: device, method, process or substance (known as an invention) which is: new, inventive, and useful or industrially applicable. as could be seen by any person `skilled in the art …

3. 3(#total) Advantages of Patents Disclosure Encourage disclosure into the public domain Otherwise keep inventions secret Innovation Research and development costly Production investment Commercialisation cost high (testing, developing market and manufacturing process) Designing around Incentive for companies to develop workarounds Improved or alternative technologies Inventor need not manufacture, but can concentrate on innovation.

4. 4(#total) Criticisms of Patents Confers a "negative right" upon owner Legally exclude competitors from using invention Even if competitor independently develops same invention Monopolies create inefficiency, stifle competition Higher prices, lower quality, and shortages. Tragedy of the anti-commons Intellectual property rights may become fragmented No one can use them Examples: DVD player 12 devices patented by different companies Microchip can contain over 5,000 different patents Software could be a big problem All patent holders must agree to license Copyright example: WKRP in Cincinnati, extremely popular sitcom unlikely to make DVD release because of music

5. 5(#total) Stifling Development? From: Boldrin & Levine: Against Intellectual Monopoly, Chapter 1 In 1769 James Watt got a patent for an improved steam engine.James Watt He went into business with Matthew Boulton (one of the great industrialists of the age – mass maufacturing - very powerful) and got the patent extended to 1800.Matthew Boulton Watt then spent his time fending off rival inventors, rather than innovating: 1790s -> superior and independently designed Hornblower engine (?) Boulton and Watt took legal action against Hornblower Jonathan Hornblower found himself ruined and in jail Fear: many other improvements were kept idle until the Boulton and Watt patent expired. [Id suggest that this may be slightly unfair - there were a lot of mechanical problems that Watt had to fight with (and Boulton financed) to make reliable engines, and this took years.]

6. 6(#total) Stifling Development? Before 1800: Not many of Watts engines in use Watts activity mainly extracting royalties. (?) After patent expiry: Watt heavily involved in manufacture Steam becomes driving force of industrial revolution. Fuel efficiency: Not thought to have changed at all during Watts patent Between 1810 and 1835 increased by a factor of five. Irony for Watt: Needed to convert linear movement into steady rotary motion: The crank and a flywheel patented in 1780 by Pickard Watt had to use a less efficient mechanism until Pickards patent expired in 1794.

7. 7(#total) Stifling Development? Some possible conclusions Watt possibly set back the industrial revolution by a decade or two by delaying the mass adoption of the steam engine Innovation was stifled until his patents expired Competitors waited until expiration before releasing innovations Few steam engines built during Watts monopoly Watts skills wasted Patent too long – estimated break even by 1783

8. 8(#total) Trolls and Wars Patent wars between large technology companies: You show me your stack of IP violations I show you mine We usually cut a deal out of court But not always. Companies have to accumulate patents just to defend themselves against others. Patent trolls buy patents from inventors. Hold them and look for opportunities to make money by claiming infringement.

9. 9(#total) Exclusions Patentability exclusions Business methods are explicitly excluded Cannot patent a mathematical formula, or a rule, Cant usually patent pure programs/software either Usually have to copyright or keep secret. But can (UK) if part of a wider system with significant `technical effect. Substantial variation between systems for granting patents in US and Europe. US often more liberal in what is patentable.

10. 10(#total) Ambiguities The law in this area appears far from settled. Even where principles are supposed to be clear, interpretations in particular cases is confusing. Apparently confusing and contradictory judgements. Successful appeals. Different results in different jurisdictions.

11. 11(#total) The importance of E-Commerce Software Patents: NOTE: stronger than copyright; patents the idea independent of a particular implementation E-Commerce patents: Patents a way of selling online E.g. shopping cart, or financial transaction system The driving force of E-Commerce patents Proliferation of WWW $1.4 – $3.8 billion e-commerce annual global revenue (2003) Intellectual property most valuable asset Technologies becoming more complex and costly to develop -> need to patent E-Commerce patents estimates ~450 annually granted in the US since 2001

12. 12(#total) The Beginning E-Commerce patents The beginning US patent case State Street Bank v. Signature Financial Group(1998) Signature won System produces 'a useful, concrete and tangible result' Computer implemented process is patentable Patent applications rocketed (not all granted though) [This type of patent now seems to have been rejected by US Supreme Court (since 2008/2009). Useful, concrete, tangible test not enough Does not pass the machine-or-transformation test. "unclear whether tying a process to a general purpose computer is sufficient to pass the machine-or- transformation test Very confusing situation. ]

13. 13(#total) The Beginning Controversial E-Commerce patent claims Stylesheets (Microsoft) 1-Click, Cookies, Consumer reviews (Amazon) Database operations (Allan Conrad) WAP (GeoWorks) Name your price auction (Priceline.com) Shopping Cart (OpenMarket->divine->bust)

14. 14(#total) Current Software Patent Usage How should e-commerce patents be used? To protect IPR (main reason) To recognise the inventors creativity To reward the inventor How are e-commerce patents used? Market exclusion Product promotion (exclusive product) Licensing Extortion – typically SMEs (Prodigy, Structured Document Browser – frame based browsing) Protection of companys own techniques against extortion (Novell paid $15.5M for patents) Slow down competitors (Amazon 1-Click: Barnes&Noble had to remove express lane system) Help start-up companies enter market

15. 15(#total) The Effects Who is primarily affected Companies (get sued / or afraid to use ideas) Users/Customers (have to pay more) WWW Open Source Community Why are they affected? Popular web features are unused Pay higher prices for products Evolution/R&D is slowed down if not stopped altogether

16. 16(#total) The Effects Targets Large companies Allan Conrad sued General Motors, Boeing, Ford, DaimlerChrysler Soverain vs. Amazon (shopping cart – Amazon paid $40M) Juliette Harrington vs. Yahoo (single universal shopping cart for many shops) SMES PanIP filed 50 claims for financial transaction system divine – basic shopping cart system – 150 companies paid licensing fee

17. 17(#total) Problems and Criticisms E-Commerce patents problems Patent granting process Too easily granted Patentability criteria not clearly defined Business methods E-Commerce patents criticisms Overly broad claims (Cybergold, Amazon) Novelty and obviousness (Priceline.com) Selective enforcement of patents – go after soft targets

18. 18(#total) Patent Problems for Open Source Software Reduced ability for OSS to offer alternatives to proprietary software. Programmers rarely search patent databases. Lack of funds available to apply for patents, defend patents, or to fight competitors patents Patent pooling a solution? (cross licensing) Problems not unique to OSS?

19. 19(#total) Protection How can someone be protected Buy patents Cross-licensing – sign agreement with another company on no lawsuits Patent first Costs of defending Settle with $30000 - $40000 Or go to court and spend 10-fold

20. 20(#total) Solutions and the Future Solutions and suggestions Stricter Laws Patent office standards + database of prior art Redefine what an e-commerce patent is Change the duration of the validity From 17-20 to 3-5 Boycott businesses Future of E-Commerce patents Venture Capitalists refuse to back companies without patents IPR companies - Intellectual Ventures – buy and lease patents - Trolls – buy patents just to sue other companies

21. 21(#total) Open Source Software and Intellectual Property Issues Open source philosophy Free to modify program in any way Free to feed back changes into community Business models Software for free, but charge for support Charge for different versions/warranties What legal problems might OSS face? Relatively untested in court? Compatibility with copyright law? Threat from software patents Risk of violating DMCA (US) / EUCD (EU)?

22. 22(#total) Copyleft - prehistory 1975: Bill and Paul get Altair 8800, get BASIC implemented with help. Hobbyists `rip-off the Micro-Soft owned BASIC. Jan 31, 1976, Bill gets tetchy : http://en.wikipedia.org/wiki/File:Bill_Gates_Letter_to_Hobbyists.jpg http://en.wikipedia.org/wiki/File:Bill_Gates_Letter_to_Hobbyists.jpg Others implemented own versions of BASIC. Some wanted their versions to remain free, for example:

23. 23(#total) Copyleft – More History Origin: Early 80s Richard Stallman worked on a Lisp interpreterRichard Stallman Symbolics wanted it, Stallman gave a public domain version Symbolics extended and improved it Stallman wanted access to improvements Symbolics refused Public domain problem: Software in an unprotected state Developers can take public domain originals, modify them, and sell without providing the source code. Free Software, Free Society: Selected Essays of R.M. Stallman

24. 24(#total) Copyleft Uses copyright law to remove restrictions Free distribution of copies and modified versions Same freedoms must be preserved in modified versions.

25. 25(#total) Copyleft - GNU General Public Licence GPL uses copyleft ideology : the right to run the program, for any desired purpose. the right to study how the program works, and modify it source code access is a precondition the right to redistribute copies. the right to improve the program, and release the improvements to the public source code access is a precondition All derivative works must use GPL Enforced by copyright law Can be seen as viral Restrictive: software often distributed under multiple licenses

26. 26(#total) Is the GPL enforceable? Preliminary hearing, MySQL AB vs Progress NuSphere, 27/02/2002. NuSphere violated copyright by linking code for the Gemini table type into the MySQL server. Ended in settlement – no precedent set Judge Patti Saris "saw no reason" that the GPL would not be enforceable.

27. 27(#total) Is the GPL enforceable? Netfilter/iptables Project vs Sitecom Germany Sitecom distributed Netfilters GPLd software in violation of terms of GPL. April 2004 Netfilter granted preliminary injuction against Sitecom. July 2004 Munich District Court confirmed this injunction as a final ruling.

28. 28(#total) Actions against GPL Price-fixing Allegations Daniel Wallace sues the Free Software Foundation (FSF). Alleged that the GPL is tantamount to price-fixing (at $0). The case was dismissed, with Wallace to pay costs.

29. 29(#total) Difficulty with New Copyright Laws How to make a legal DVD player under Linux? PyMusique was a program used to interface with Apples iTunes Music Store. Downloaded songs are unencrypted AAC files (.m4a). Apple officially provides encrypted AAC (.m4p). Interesting: PyMusique did not remove encryption, it merely failed to add it iTunes Music Store Terms of Service: You will not access the Service by any means other than through the software that is provided by Apple for accessing this Service. Use of PyMusique is in breach of ToS. But is ToS legally binding? This particular clause is below the fold...

30. 30(#total) Difficulty With New Copyright Laws Ironically... The 2005 Sony BMG CD copy protection scandal was a public scandal dealing with Sony BMG Music Entertainment's surreptitious distribution of software on audio compact discs. Sonys XCP rootkit software was designed to protect copyright of artists... But it was illegally copied from sections of the LAME MP3 library and the program VLC written by Jon Lech Johansen and Sam Hocevar not adhering to the terms of the GPL would require the release of the complete source code for XCP.

31. 31(#total) Open Source Difficulty: Money The Law and Money Money required for patent application. Money required for patent defence. Money required for patent enforcement. Money required for DVD licensing. Money required for DRM licensing.

32. 32(#total) Open Source Problem : Image Open source movement not sympathetic to copyright holders - no open source copyright system developed yet - future development unlikely - no DRM-enabled software – less support from copyright holders Companies stay from away Linux for fear of using GPL code Apple requires you to use an official client, but no official iTunes client provided for Linux Richard Stallman

33. 33(#total) Summary Patents What are they, Advantages, Criticisms Software patents Uses, Effects, Problems, Solutions Open source software Copyleft and GPL Enforcing GPL Open source difficulties DMCA, money, image