In the first instance decision, Arnold J found that WP had copied substantial parts of the SAS manuals, including keywords and other vital components. However, Arnold J did not rule on the interoperability question, namely that World Programming had to decompile large parts of SAS object code in order to create its own clones of the software. These questions then were referred to the ECJ:

• Does copyright in computer programs protect programming languages from being copied?
• Does copyright in computer programs protect interfaces from being copied where this can be achieved without decompiling the object code?
• Does copyright in computer programs protect the functions of the programs from being copied?
• Arnold J required interpretation of several articles in both the Software Programs Directive and the Copyright Directive.

A few days ago Yves Bot, the Advocate General of the ECJ, produced an opinion in the case which seems to favour World Programming and interoperability.  For those unfamiliar with ECJ procedure, the Advocate General’s opinion is not a decision, it simply gives an overview of the case for the justices, and the Court may ignore it altogether, but generally influence the final result. The Advocate General broke down the referred questions into several main issues. To me the most important question is precisely whether the functional element of a computer program protected by copyright. The AG put it this way:

“First, by questions 1 to 3, the referring court asks, in essence, whether Article 1(2) of Directive 91/250 is to be interpreted as meaning that the functionalities of a computer program and the programming language are regarded as the expression of that program and thus qualify for the copyright protection provided for by that directive.”

Mr. Bot goes through the basics of software copyright. He reminds us that copyright does not protect ideas, but the expression of an idea, and while copyright does not only protect literal elements of software, he clearly states that “the functionalities of a computer program cannot, as such, form the object of copyright protection”. Furthermore, the Advocate General analyses whether a computer programming language can be subject of copyright protection. He states that:

“69. As we have seen, a computer program is first compiled in the form of a source code. That code is written in a programming language which will act as a translator between the user and the computer. It enables the user to write instructions in a language that he himself understands. The referring court explains that SAS language consists of statements, expressions, options, formats and functions expressed in tokens, that is to say, strings of characters used in accordance with certain conventions. One of the main types of token in SAS language is names, for example, LOGISTIC and UNIVARIATE. The referring court adds that SAS language has its own syntax and keywords.[...]
71. It seems to me, therefore, that programming language is a functional element which allows instructions to be given to the computer. As we have seen with SAS language, programming language is made up of words and characters known to everyone and lacking any originality. In my opinion, programming language must be regarded as comparable to the language used by the author of a novel. It is therefore the means which permits expression to be given, not the expression itself.
72. Accordingly, I do not think that it can, as such, be regarded as the expression of a computer program and thus be eligible for copyright protection under Directive 91/250.”

It is always a pleasure to read good legal opinions, of which this is one great example. So, computer languages are functional in nature, and therefore they cannot be protected under copyright. Mr Bot then goes on to analyse the extent of interoperability in software. The issue was “whether, under Article 6 of Directive 91/250, WPL was entitled to perform an act of decompilation in order to achieve interoperability between the SAS System and its WPL System.” He believes that World Programming was indeed able to decompile to achieve interoperability. He states in his conclusion:

“Article 5(3) of Directive 91/250, read in conjunction with Articles 4(a) and (b) and 5(1) thereof, is to be interpreted as meaning that the expression ‘any of the acts of loading, displaying, running, transmitting or storing the computer program [which the person having the right] is entitled to do’ relates to the acts for which that person has obtained authorisation from the rightholder and to the acts of loading and running necessary in order to use the computer program in accordance with its intended purpose. Acts of observing, studying or testing the functioning of a computer program which are performed in accordance with that provision must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source code or the object code.”

Hopefully this opinion will be carried by the court when they decide the case. On a more shallow note, I love the name Bot, I would have lots of fun with that name messing up Turing tests. “Are you a bot? Yes, as a matter of fact I happen to be a Bot”.

BitTorrent Inc has been sued for patent infringement by a company named Tranz-Send Broadcasting Network. I usually suspect the presence of a patent troll when it seems impossible to find the website of the claimant in the patent dispute, and when most of the Google results for the company include the news of the suit, and several prayer and transcendental meditation sites.

The litigation is in the Northern District Court of California (refreshingly not in Texas), and involves U.S. patent 7,301,944 (at USPTO) which protects media file distribution with adaptive transmission protocols. The abstract reads:

“A server/client media file distribution system is provided in which the server system is adapted to receive transmission requests from clients, status information from a network, and protocol information from each client. The server, based upon this information, adaptively transmits a given media file stored therein to one or more clients using the optimal transmission speed and/or network protocol based on the network status information and protocol information. Additionally, the present invention provides a looping file arrangement in which a plurality of clients can receive the same media file on multiple network channels, without the need to provide multiple copies of the same media file for each request of that file.”

That seems generic enough.Perhaps reading the claims will help to elucidate precisely what this patent is supposed to cover. Claim 1 reads:

“1. A media distribution system, comprising: a media file database configured to store media files, wherein one or more of the media files have been compressed prior to storage in the media file database; a computing device configured to receive user requests for delivery of the one or more of the media files stored in the media file database, the computing device further configured to: identify average network throughput between computing device and the requesting users; and route the user requests for delivery of the requested one or more media files to a distribution server capable of servicing the user requests based upon at least the average network throughput; and a distribution server coupled to the media file database, the distribution server configured to simultaneously deliver a single copy of the requested one or more of the media files identified in the routed user requests to the requesting users in less-than-real-time, wherein the distribution server automatically adjusts delivery of the requested one or more media files to the requesting users based on current average network throughput between the distribution server and the requesting users.”

This is a more narrow claim. As far as I can see, what is claimed is the creation of a compression algorithm that also stores information about files in a database and which also identifies network load of transfer, and distributes the files adjusting resources to match the load and the number of requesting users.Further claims only add more detail to the first claim, and mostly deal with involvement of more servers as the load increases.

I have read all of the claims, and nothing seems to resemble what the Bittorrent protocol does. Bittorrent is a communications protocol that distributes file-sharing amongst users with an entire copy of the file (seeds), and/or amongst users with incomplete versions of the whole (peers). The information of who is sharing the files at any given time is distributed through a tracker file which allocates resources accordingly at the local level; all of the seeds and peers sharing a file form a network (swarm).  If a user wants to find a file, all he needs to do is to go to a search engine and type the name of say, a movie. If the film is being shared, there may be a torrent file that contains information of those who are sharing the file at the moment. All that is needed is for one person to initially have the file and upload the tracker to a torrent tracking site, for that reason this person will be seeding the copy. Once other users find it, they will start downloading the file, but at the same time, they will be sharing it with others in the swarm. Eventually, peers that complete the download and keep their Bittorrent client open will become seeds, the more seeds, the “healthier” a torrent is.

So, the court will have to rule if Bittorrent is at all like the claims in this patent. In my humble opinion, they are nothing alike.

The other interesting element of this case is that the patent was filed on April 16, 1999. This might be relevant, as Napster was released in June 1999, which could be considered the first peer-to-peer application. The 944 patent describes a distributed file sharing system, so the best way to bring it down would be to find prior art. Does anyone know of an adaptive file delivery system prior to April 1999? This alone could settle the case.

The insidious nature of software patents is that even if there is prior art, and even if the patent claim does not remotely describe the Bittorrent protocol, BitTorrent Inc will still have to spend a lot of money defending itself from the trolls. Software patents keep punishing innovators, not encouraging innovation.

It seems like Lodsys has decided to jump the gun and moved faster filing the lawsuits than anyone expected. According to Florian Mueller at FOSS Patents, the reason for this is:

“The only way I understand Lodsys’s claim that it needed “to preserve its legal options” is presumably that Lodsys feared Apple might seek declaratory judgment of non-infringement in a different jurisdiction than East Texas, the troll-friendly venue Lodsys chose (as I expected). Maybe it would have been a good idea for Apple to seek declaratory judgment much sooner, but Apple either didn’t want to do that or was just too slow.”

This patent suit is generating a lot of heat against patents in the venture capital circles as well as in the app developer community. Fred Wilson pretty much expresses the feelings of many when he says:

“The mess around the Lodsys patents should be a wake up call to everyone involved in the patent business (government bureaucrats, legislators, lawyers, investors, entrepreneurs, etc) that the system is totally broken and we can’t continue to go on like this.
First of all, the idea of a transaction in an application isn’t novel. That idea has been resident in software for many years. The fact that the PTO issued a patent on the idea of “in app transactions” is ridiculous and an embarassment.
Second, Lodsys didn’t even “invent” the idea. They purchased the patent and are now using it like a cluster bomb on the entire mobile app developer community. They are the iconic patent troll, taxing innovation and innovators for their own selfish gain. They are evil and deserve all the ill will they are getting.”

I still think that app developers in jurisdictions that are not encumbered with software patents may benefit greatly. My deepest condolences to those software developers affected.

For those unfamiliar with the background of this dispute, last year a hacker named George Hotz posted a set of keys that could be used to unlock the latest PS3 (at the time of writing the keys have been removed). This allows users to install a different operating system on the console (which is in the end just a computer), as well as allowing users to upload other applications, and perhaps most importantly, it might allow users to mod the hardware so that they can play pirated games. Sony did not like this, and initiated action against Hotz based on anti-circumvention provisions found in the DMCA. In a very interesting ruling (I would say unprecedented, but I’m afraid I may be proven wrong), a Federal Magistrate of the U.S. Northern District of California granted a subpoena against Hotz’s web hosting company to obtain the IP addresses of all of the people who had downloaded the key from the site. Needless to say, the Internet did not take this lightly, and started to post the aforementioned key everywhere. As it is often remarked in these pages, the Internet interprets censorship as damage, and reroutes around it.

Perhaps the most interesting incident occurred when a Sony Twitter account accidentally re-Tweeted the key, and in a gigantic case of corporate “doh” immediately removed it, but not before it had been copied by various people.

So right now we are engaged in the eternal game of cyber-cat-and-mouse as Sony has posted a new firmware update to the PS3 which is set to remove this and other vulnerabilities.

But what about the legalities of jailbreaking? I will make the distinction here with modding and other specific exploits that are designed specifically to remove technological protection measures in order to facilitate infringement, I believe that regardless of your opinion on DRMs and TPMs, the law is clear (see Art. 11 of the WIPO Copyright Treaty). Jailbreaking however is designed mostly to allow a user to upload un-approved or unofficial software to a hardware device. Strictly speaking, this does not constitute circumvention of technological protection measures, that type of protection is designed to keep the manufacturer strictly in control of whatever software and firmware gets into the device. So the question is whether users have the right to remove such restrictions. The U.S. library of Congress thinks that they do, so in their latest update to DMCA exception regime they included iPhone jailbreaking as an exception to the DMCA anti-circumvention provisions.

Outside of the U.S., the question is still in the legal limbo, but I honestly think that there is a very good legal case in favour of jailbreaking devices if it is done with the intention of installing a new operating system, or installing applications not sanctioned by the manufacturer. If users want to tinker with the software, just void the warranty and let it go, but do not pursue them for wanting to get creative with their own property.

All of this talk leaves me wanting to play a game, but most of mine are still in a crate making its way through Costa Rican customs. I guess Solitaire will have to suffice.

In the case of ACS:Law, they sought NPOs against several UK ISPs (forgive the gratuitous use of acronyms in that sentence). Only Virgin Media and TalkTalk fought the orders, and the rest went unopposed. As with any other instance, ACS:Law refused to pursue matters further after the first hint of opposition. The ACS:Law email leak has had the effect that it has certainly left TalkTalk and Virgin looking like the victors in this whole affair. TalkTalk’s Andrew Heaney has been an outspoken opposer of the Digital Economy Act, and he has been adamant about the danger of disclosing user information through NPOs. He comments:

“Tracking down illegal filesharers is complex and the current approach isn’t working. The first problem is around detection: if you can only see what’s being downloaded at each connection, how do you know which of the several users has actually infringed copyright?

Secondly, we’ve demonstrated before how it’s possible for connections to be hacked by serial filesharers. Again, this can result in false accusations being made against subscribers and is the key reason why we’ve refused to hand over our customers’ details to ACS:Law or any other law firm working in this way.”

The case has moved this week, as another firm pledged to seek to pursue individual infringers. Law firm Gallant Macmillan went to court today to seek a Norwich Pharmacal Order against British Telecom, in which they were seeking to obtain details of customers matching IP addresses of BT users allegedly sharing Ministry of Sound music. Funnily enough, Anonymous targeted MoS and Gallant Macmillan with denial-of-service attacks in their operation Payback over the weekend, and at the time of writing the Ministry of Sound website was still down.

Simon Bradshaw from Queen Mary University attended today’s hearing, and he has reported on Twitter and to an ORG list that BT has decided to oppose (or to be seen to oppose) the NPO. Simon comments that the mood in the court was informed by what happened last week, and that the hearing was adjourned until January 12 so that the parties could provide Chief Master Winegarten, the Chancery official, with proper technical evidence. Hopefully Simon will provide a full report in the next days, which will be linked to as soon as I see it, so stay tuned. (ETA: here are Simon’s notes).

In other words, the rules have changed, no longer will NPOs go through court unopposed.

I know I was rather sceptical of Anonymous last week, but if everything else remains the same, this one single outcome is a tremendously positive thing, so they get a partial thanks from yours truly. I still do not believe in vigilante justice, but I am willing to grant them a Batman benefit of the doubt. Not like they care what the likes of me think, but some good might come out of this.

There are some interesting legal issues here about the interaction between copyright, fair use and contract. Most of these have been dealt with in great detail by Aurelia Schultz at the 1709 blog. The main legal question is whether That’s Great News is indeed infringing copyright, and the answer according to Aurelia is that there is 7th Circuit precedent that similar actions have not been deemed as derivative works, and therefore are not infringing. The other legal question that Aurelia accurately points out is that one cannot use a CC licence to contract out of fair use and other copyright exceptions.

This case is just one of a growing number of cases that is trying to explore the interaction between copyright and contracts, this is one of my pet subjects so I won’t bore you with the arguments, but if you are interested you can read an article about the subject here. There are however two points about this case that I have not seen explored elsewhere.

The first is that I am troubled by the use of Creative Commons licences by GateHouse Media. I may be entirely mistaken, but it seems like GateHouse has released some content under CC licences precisely to stop companies like That’s Great News from doing precisely what they are doing, namely to make commercial derivatives of the original work. It cannot be a coincidence that GateHouse is releasing some of its content under an Attribution-NonCommercial-NoDerivatives licence, which is the less open and more restrictive CC licence out there. What I find disturbing is that a commercial enterprise looked at different licensing options and chose a CC licence in order to restrict commercial uses of the work, which seems to be counter to all of the definitions of openness and freedom that people in the open camp use, and lends credence to the many arguments against NonCommercial CC licences out there. When a company believes that the best way to close down content is to use a CC licence, then there must be something wrong happening.

The other interesting issue in this case is a more subtle question, one that I have encountered since the early days of open source licensing. There seems to be a myth that free and open licences, including CC, require court cases in order to prove that they are enforceable. I remember that this was a common FUD (Fear, Uncertainty, Doubt) tactic employed by free software detractors for years in order to instil doubt in the minds of potential adopters of FOSS. The argument went something like this: “The GPL has not been tested in court, so you should not adopt it”. I remember clearly being at a conference where a well-known German professor dismissed the GPL as entirely unenforceable because it had not been declared valid by a court of law. How ironic that the first jurisdiction to enforce the GPL was Germany.

I have been reminded of this because of an article by Glyn Moody entitled Are the Creative Commons Licences Valid? This is going to be one of the few occasions when I disagree with Glyn. I do not think that CC licences, or any licence to that effect, requires a court decision in order to be valid. There are thousands and thousands of commercial End-User Licence Agreements that are never tested in court, yet they manage to have legal effects and are usually followed to the letter by its users without producing a conflict. True, many licences contain clauses that when analysed by legal practitioners and scholars may seem doubtful. But even then a court case is required to declare the clauses invalid. One could say that a licence is valid until proven otherwise.

Having said that, CC licences have already been declared valid in the Netherlands, Germany and Spain (and Bulgaria, thanks Javier). While favourable court cases help to promote CC adoption by commercial enterprises and the public sector, it is important to remind everyone that there is no reason to doubt their validity. CC licences have been the subject to incredible legal scrutiny in hundreds of jurisdictions, they have been ported and translated to accommodate legal systems around the world, and there has been little doubt in the literature about their validity. My humble opinion is that they are as valid as any commercial licence out there.

“Microsoft has been a leader and innovator in the software industry for decades and continues to invest billions of dollars each year. [...] We have a responsibility to our customers, partners and shareholders to safeguard that investment, and therefore cannot stand idly by when others infringe our [intellectual property] rights.”

There are some quite interesting aspects of this suit. The first is the quality of the patents that Microsoft is using in their litigation. To put it bluntly, they raised my eyebrows to put it mildly:

• Method and system for mapping between logical data and physical data (7,251,653)
• Timing and velocity control for displaying graphical information (6,542,164 and 6,281,879)
• Automated web site creation using template driven generation of active server page applications (6,263,352)
• Aggregation of system settings into objects (6,122,558)
• System and method for controlling access to data entities in a computer network (5,941,947)
• Method and system for identifying and obtaining computer software from a remote computer (5,845,077)
• System and method for providing and displaying a web page having an embedded menu (5,742,768)
• Method and system for stacking toolbars in a computer display (5,644,737)

“Method and system for stacking toolbars in a computer display”? Really? The abstract is a beauty:

“A plurality of toolbars that include graphic objects, which can be selected by the user, are arranged in a stack. Only the graphic objects on one or more selected toolbars are displayed. The user can selectively choose a toolbar that has graphic objects currently hidden by the selected toolbar(s), causing one or more of the toolbars to move aside, exposing the group of graphic objects associated with the toolbar newly selected by the user. Movement of the toolbar(s) to disclose the graphic objects on the newly selected toolbar is preferably accomplished by animating the toolbar(s) to slide to different positions, so that the graphic objects or buttons on the newly selected toolbar are displayed. For added realism, the animation sequence used to disclose graphic objects on a selected toolbar includes an audible sound and a “bump” as the toolbar(s) reach a rest position.”

My gasted is flabbered.

Anyway, the real question is why exactly is Microsoft doing this? Apparently, the answer might be the most popular use of the patent system, you use it to attack competitors. The WSJ claims that Microsoft has recently started its own consumer relationship management service called Microsoft Dynamics. As cloud computing is set to continue to grow in the next years, it makes sense that Microsoft might be trying to cut down the competition. This is normal business practice, but I am a bit surprised that they are using such bad patents to do it.