The case of Bilski v. Doll, set for oral argument in the U.S. Supreme Court on November 9, may be one of the more significant patent cases in recent memory.  At issue is the scope of subject matter that is eligible for patent protection, governed by section 101 of the Patent Act.  The petitioner Bilski is seeking to patent a “business method,” an allegedly novel process for hedging risk in commodities trading.  His claims were rejected as unpatentable by the Patent and Trademark Office, and by the Federal Circuit appellate court.  The Federal Circuit held that a process must (1) be tied to a machine, or (2) transform matter to a different state or thing, in order to be patentable.  Bilski challenges that ruling and asserts that pure methods can be patentable.

Friday, October 2 saw the latest round of amicus (non-party, “friend of court”) briefs filed in the case, among them a brief by the Software & Information Industry Association.  The SIIA agreed with the results in the lower court, arguing that Bilski’s method is unpatentable.  The SIIA, however, urged the Court not to go “too far” and call into question the patentability of computer software.  The SIIA explained that software inventions have long been treated as patentable by the courts and the Patent and Trademark Office, and that the software and information industries have thrived with the availability of patents.  The promise of patent exclusivity is one factor that leads to investment in the industry.

Over 30 amicus briefs have been filed in the case, with many more still pouring in.  Further updates will follow after oral argument in the case.

Microsoft is bundling anti-piracy tracking software with routine updates.  The updates include a validation process that allows Microsoft to determine whether the operating system and productivity software installed on the user’s computer are genuine.  This is part of Windows Genuine Advantage Program (WGA) and Office Genuine Advantage Program (OGA).  These global anti-piracy efforts began in 2004 and 2006 respectively and have been slowly rolled out to more than forty countries worldwide.  Microsoft says that these programs “are part of Microsoft’s on-going effort to protect its customers and partners from counterfeit software and to increase customer awareness of the value of genuine Microsoft software.”

WGA currently has the capability to check the validity of Windows XP, Vista, Windows 2000 Professional and some versions of Windows 7.  OGA checks the validity of Office XP, Office 2003 and Office 2007.  But it is a controversial move by the software giant that is garnering criticism and legal action.  Lawsuits have been filed in the United States and China alleging that the anti-piracy measures violate privacy, anti-trust and product liability laws.  It also has been criticized for producing false positives – invalidating legitimate software.  Microsoft stresses that these cases are rare and can easily be resolved by visiting their technical support website.  Microsoft also claims that these “automatic updates” are optional and can be rejected by users before installation.

Users that are operating legal software will not see any alerts or messages and can install all available updates.  However, users who are using pirated software will be alerted either by a pop up dialogue box, a black screen or a message in their system tray that says: “This copy of Microsoft Office is not genuine.”   The message directs the user on how to obtain a legitimate copy of Microsoft product.  They will not be allowed to install any available updates.

Some have criticized the programs as the heavy handed tactics of a software giant.  However, it is important to realize the impact piracy has on the software industry including contributing to unemployment rates.   Piracy also impacts computer users.  People that use counterfeit software forfeit the benefits that come with the purchase of legitimate software like technical support, updates, patches, user manuals.  You also risk the possibility of being infected with a computer virus.  So get your piracy check-up!

The long-running case of Solers, Inc. v. Doe in the District of Columbia raises the interesting dilemma of balancing significant free speech rights with the interest of an alleged "victim" to pursue claims against an alleged anonymous defamer.  Usually, this issue arises in the context of an online message board poster's public diatribe against someone or something, made under a pseudonym.  The alleged victim then sues the poster under the name "John Doe" and immediately subpoenas the web site host or publisher to try to discover the real identity of the poster.  Thus far, courts have acknowledged the transcendental importance of free speech and, for the most part, blocked disclosure of the posters' identities.  A collection of some of those cases is described here.  In Solers, there is a twist.  An informant ("whistleblower") made a private report to the SIIA via a piracy reporting link on the SIIA's web site, and Solers subsequently embarked on a quest to unmask that informant.  The latest appellate ruling in the case is a mixed bag for Solers, establishing significant hurdles that make it unlikely for Solers to acquire the identity of the informant, but giving Solers one more shot to try.  More significantly, the decision adds to a body of case law addressing when an alleged claim of wrongdoing may overcome the First Amendment right to make anonymous speech.

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As noted earlier in this blog, two weeks ago the Supreme Court denied cert in the case of Cable News Network, Inc. v. CSC Holdings, Inc. (“Cablevision”).  That order leaves in place Cablevision’s appellate victory, allowing it (for now) to continue offering its “remote DVR” service to cable customers, without payment of additional royalties for the storage and delivery of that programming.  The result was somewhat surprising to experts, and many had expected the Supreme Court to hear the case.  But more than anything else, the result signals a looming battle over secondary liability principles – principles that the plaintiffs chose not to put into play in the Cablevision case – and how the landmark Universal Pictures v. Sony (“Betamax”) case will be applied to similar digital services.

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According to Wikipedia, “Teamwork is a joint action by two or more people or a group, in which each person contributes with different skills...to achieve common goals.” Companies are founded on teamwork but often employees get caught up in the day to day duties of their jobs and forget that they are an integral part of a team. This is especially true when employees are allowed to purchase their own software without accountability.   I am not suggesting that companies engage in team building exercises, retreats or motivational speakers to fix the problem.  What I am suggesting is that companies create their own Software Management Team.

In past blogs, I have emphasized the importance of centralizing software purchases.  Certainly this is important, but we must take a step back and look at the bigger picture.  Every company should have a Software Management Team in place.  Representatives from Information Technology, Accounting, Purchasing, Legal, Human Resources should be included.  The heads of individual business units should also be present.  Each of these departments has a stake in the game and should not be left out when managing a company’s software assets.

Once a company has designated at least one person from each of these departments to be part of the team, the team should convene and set goals and directives.  Each department will be individually responsible to the team.  Goals may vary within each company but definitely should include a software audit.  IT will likely be responsible for selection and deployment of the audit tool.  After the results are analyzed, Accounting may advise as to an appropriate budget for software purchases for each department. Department heads certainly will want to have input.  The Legal department should draft User Policies and Procedures for employees to follow.  And Human Resources will need to communicate the plan to company employees and take corrective action if necessary.More...

I’d like you to take a trip back with me to the early 1990’s -- a time when the high tech industry was exploding with new and innovative hardware and software in the form of business applications, games, and much more.  Unfortunately, with these new innovations came rampant copyright violations.  Adults and kids were beginning to copy software, almost without thinking about it.  Some were doing so knowingly.  While others were simply not aware that their actions were illegal.

As any good trade association would do, SIIA (then known as SPA, the Software Publishers Association) jumped in and took immediate action.  We decided to embark on a broad education campaign to enlighten the public at large – particularly focusing on school kids.  Our message was simple – to teach kids the importance of copyright protection as a means for encouraging innovation and creativity and the dangers of software piracy.

The result of our efforts was the VERY popular video called “Don’t Copy That Floppy!”  

The video was a huge success in the schools in the 90’s.  Year after year, the video – along with the copyright lesson plans – were used by thousands of teachers across the country to educate their students to respect copyright and to not copy software illegally

Now, lets fast-forward to 2009.  Floppies are long gone.  SPA is now SIIA.  And people generally know much more about copyright -- thanks in large part to the likes of Napster, YouTube and John Doe lawsuits brought by the recording industry.

But, as they say, the more things change, the more they stay the same.  The high-tech industry continues to explode with new and innovative hardware and software in the form of business applications and games.  And, just like in the 90’s, if not more so, copyright violations continue to be rampant.  In fact, today it’s not just software that’s being pirated.  It’s music, movies and, of course, digital content (like newspaper and magazine articles, books, and test materials).

Even though floppies no longer exist and the video is very outdated, it continues to be as popular as ever.  You can find groups devoted to the video on facebook, discussion groups and various websites (where you can even buy your very own "DCTF thong!).  There are close to 100 versions of the video posted on YouTube. When you search for the video on Google you get tens of thousands of hits.  Perhaps, most importantly, despite being quite outdated, Don’t Copy That Floppy continues to be shown to students throughout the country.

Even now – 17 years after it was first launched --  the Don’t Copy That Floppy video is easily the most successful and most popular copyright educational video of all time.  If you don’t believe me just ask yourself – when was the last time someone actually copied a floppy. (insert laugh track here).

So, 17 years after we first released the original Don’t Copy That Floppy, after being swamped with requests, we have decided to make a sequel, aptly named Don’t Copy That Too (DCT2).  Even though the video won't be released until next month you can check out a preview of the new video.

In one of the more significant statements against piracy in recent memory, four founders of one of the world's most notorious "pirate" sites, the Pirate Bay web site created in Sweden, were sentenced on Friday to a year in prison and ordered to pay a $3.6 million fine by a Swedish court.  Sweden had long been considered somewhat of a "safe haven" for Internet pirates to operate in, and is known for a culture (especially among its younger citizens) that not only widely accepted, but promoted, piracy of copyrighted materials.  There is even a political party in Sweden, the "Pirate Party," whose primary agenda is making copyrighted materials freely available.  Copyright owners in the United States and other countries, along with their governments, had been working with the Swedish government to step up enforcement of copyright laws and change the perception of Sweden as a lawless territory when it comes to intellectual property.

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Organizations that centralize their software purchases stand a much better chance of being software compliant than those that do not have a formal process in place.  This is true for small and large organizations alike but certainly the risk of non-compliance increases as the size of the organization does.

The advantages of centralizing software acquisition cannot be overstated.  For those organizations that do not centralize their purchases, they run the risk of being either underlicensed or overlicensed.  After performing a software audit, many organizations have found that they are both underlicensed for some software titles and overlicensed for others.

Some organizations that are underlicensed have found themselves in the middle of an enforcement audit or lawsuit simply because the IT department did not have control over the software their employees were purchasing and using on a daily basis.  Organizations that are the target of these types of investigations run the risk of monetary fines and negative publicity. More...

Who knew that The Jeffersons had predicted the future with the theme song “Movin’ On Up”, but it looks like they nailed it on the head.  Technology is now up in the “clouds”. 

Cloud computing, by its most basic definition, is a computing environment where software and data are accessed over a network (e.g. the Internet), rather than stored on a local desktop or server.  With this model, users have the feel of software applications and data residing in the “clouds.” By more technical definition, the network of servers and connections is collectively known as “the cloud.” Computing at the scale of the cloud allows users to access supercomputer-level power. Using a thin client or other access point, like an iPhone, BlackBerry or laptop, users can reach into the cloud for resources as they need them. Other similar terms often used to refer to the cloud computing model are “on-demand computing,” and “Software as a Service,” or “SaaS.”More...

If the beginning of 2009 is any indication, there seems to be a couple of new trends in copyright litigation.  The first trend is suits alleging copyright infringement against those who illegally access a copyright owner's website to view copyright content that they don't have permission to view.  Presumably, such illegal access violates the copyright owner's exclusive rights of display and distribution under the Copyright Act.   Examples of these claims can be seen in two cases:

 

• CoStar Realty Information sued Dumann Realty for copyright infringement in the U.S. District Court for the District of Maryland, alleging that the defendant’s managers illegally accessed the CoStar website by using another customer’s user information to access the site.  Through its website, CoStar provides its clients with real estate information by charging a subscription which costs hundreds of dollars a month.  In the complaint, CoStar argues that, by accessing its website illegally, Dumann’s managers engaged in the illegal distribution of CoStar’s content in violation of the Copyright Act.  Costar is demanding that Dumann pay $150,000 for each instance of infringement.

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