LAS VEGAS, January 8, 2013 – One of the biggest public policy challenges facing the information technology industry is the ability for patent holders to sue entrepreneurs, according to a panel on “patent trolls” here at the Consumer Electronics Show.
A panel of entrepreneurs, non-profit groups and attorneys for major technology companies and Rep. Peter DeFazio, D-Ore., said that patent trolls cost more than $29 billion, a number produced last year by two Boston University professors. The professors were attempting to quantify the cost of patent litigation instigated by “non-practicing entities.”
Such non-practicing entities, derisively called “patent trolls,” are seen as purchasing intellectual property rights to patents, and then suing to stop businesses from developing products, applications or services that could be construed as infringing their patent.
Suzanne Michel, senior patent counsel at Google, took care to distinguish the business model of a company like Qualcomm, which owns patents on chipsets, which it then licenses to foundry companies to produce, from entities that she considered as a “troll.”
“Companies that come up with an idea, patent it, and license it is great for innovaiton and consumers.” By contrast, an undesireable situation occurs when “Somoene went out, bought a patent, and asked, how can I broadly construe this patent? It is simply a tax on innovation,” she said.
Morever, said Michel, the opportunity cost of distracting patent litigation imposes costs far greater than the $29 billion.
From the perspective of Rep. DeFazio, getting the attention of Congress is an uphill battle because Congress completed a signficant patent overhaul legislation with the America Invents Act of 2011. As DeFazio is not a member of the House Judiciary Committee, he said he had to struggle even to find a co-sponsor for his legislation addressing the issue of patent lawsuits.
In August 2012, he introduced his bill, Saving High-tech Innovators from Egregious Legal Disputes (SHIELD) Act.
An attorney with the Electronic Frontier Foundation urged the technology industry to flex their new-found political muscles against the entertainment industry.
“One year ago [at CES 2012], we were all taking about [the online piracy measures Stop Online Piracy Act, or the PROTECT Intellectual Property Act], and we all thought that SOPA and PIPA was going to become law,” said Julie Samuels, staff attorney for the Electronic Frontier Foundation. A few short weeks later, the tech industry was instrumental in defeating those bills.
“We weilding a lot of power last January, and we are still sitting on this,” Samuels said. “While there are a lot of roadblocks, now is the time; now is a moment” for legislation against patent trolls.
Lee Cheng, Chief Legal Officer and Corporate Secretary, Newegg Inc., urged measures that would limit the damages that non-practicing entities could obtain from patent lawsuits.
Google’s Michel urged the patent office to implement “better procedures for challenging these over-broad patents.”
Even though US Patent and Trademark Office procedures permit challenges of this sort for financial business methods, she said those measures should be extended to all software patents.
Follow Broadband Breakfast’s coverage of the Consumer Electronics Show at http://twitter.com/broadbandcensus. Our goals for #CES2013 are to promote the upcoming series of Broadband Breakfast Club events; to get the latest information on how broadband is driving digital technologies in 2013; and to test ideas for a book on technology, broadband, and digital media that Broadband Breakfast’s Publisher Drew Clark plan to write in 2013. He is on Google+ and Twitter.
Public Knowledge Celebrates 20 Years of Helping Congress Get a Clue on Digital Rights
February 27, 2021 – The non-profit advocacy group Public Knowledge celebrated its twentieth anniversary year in a Monday event revolving around the issues that the group has made its hallmark: Copyright, open standards and other digital rights issues.
Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.
Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.
The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.
The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.
In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.
Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.
“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.
Congress didn’t have a clue on digital rights
What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.
Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.
Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.
Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.
During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.
Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.
Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.
U.S. and EU Privacy and Intellectual Property Landscape Complicate Data Use Requirements
February 7, 2021 – Differences in the intellectual property and privacy landscape between Europe and the United States account are among the forces complicating the regulatory landscape around commercial data, partners at Covington’s Second Annual Technology Forum said on January 27.
Further, because intellectual property laws do not provide robust protection for databases, organizations are increasingly relying on contracts that define rights and restrictions to protect their data.
When learning how to best to handle data, companies need to know what sources it is coming from, said Lee Tiedrich, a partner at Covington. Knowing the type of data is quite important, he said, since data comes in many forms. For example, open or proprietary data should be handled differently than user contributions and scraped data that comes off of public websites.
Differences between U.S. and European intellectual property laws also factor into database protection. Clients need to know how to source data properly because they want to protect their rights to their data and reduce their liability risks, Tiedrich said.
There is no sui generis database protection in the U.S., a term which means databases do not have strong legal protections. This is not unusual as intellectual property laws in the U.S. typically do not provide protection for databases, said Tiedrich.
From a EU legal perspective, there may be some form of IP protection in data but that does not eliminate privacy requirements applying to that data, said Freddie Argent, a partner at Covington.
The panelists also discussed key terms of contracts for data licensors. Data licensors need to employ best practices, have standardized terms, and apply consistency across deals, said Adrian Perry, partner at Covington. Terms of service and privacy policies require clarity with the licensee acknowledging and accepting it, Perry added.
In Google v. Oracle, Supreme Court Hears Landmark Fair Use Case on Software Copyright
October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.
The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.
The company has sued Google for more than $9 billion in damages.
Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.
Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.
He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.
“Google had the right to do this,” said Goldstein.
Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.
Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.
“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.
“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.
Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.
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