ip & tech law cites

  • Supreme Court denies cert. in Verizon [10/12] Justices won’t weigh Net music lawsuit tactics | CNET News.com
  • Robertson v. Thomson Corp. [10/6] Cite from slashdot. — apparently this case is Canada’s Tasini, regarding the copyright rights of freelance writers (right?)
  • Novell honors the ancient compact between men and elves in the fight against Mordor: Novell Statement on Patents & Open Source Software. [10/12] See press release. Cite from slashdot. The Statement, in relevant part:
    • We believe that customers want and need freedom of choice in making decisions about technology solutions. …
    • In reality, open source software poses no greater risk of patent infringement than does closed source software. [emphasis in original]
    • Consistent with this belief, Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell’s offerings, as dictated by the actions of others.
    • In the event of a patent claim against a Novell open source product, Novell would respond using the same measures generally used to defend proprietary software products accused of patent infringement. Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.
    • As appropriate, Novell is prepared to use our patents, which are highly relevant in today’s marketplace, to defend against those who might assert patents against open source products marketed, sold or supported by Novell. Some software vendors will attempt to counter the competitive threat of Linux by making arguments about the risk of violating patents. Vendors that assert patents against customers and competitors such as Novell do so at their own peril and with the certainty of provoking a response. We urge customers to remind vendors that all are best served by using innovation and competition to drive purchasing decisions, rather than the threat of litigation.
    • Novell has previously used its ownership of UNIX copyrights and patents to protect customers against similar threats to open source software made by others.
  • RIAA files cert. request in Grokster [10/8] (pdf at EFF).

    my bet? cert. denied. why? *

eta: I lost that bet ….


  1. No circuit split. Altho some have described Grokster as creating a circuit split between the 7th (Aimster) and the 9th (Grokster), I disagree. The Aimster language interpreting Sony and suggesting a quantity-of-infringement test is in conflict with the 9th circuit in Grokster, but the 7th circuit language on that issue is dicta. The Aimster court on the fact that Aimster never showed evidence of any non-infringing uses, and stated that mere hypothetical uses don’t count. While the notion that mere hypothetical uses don’t count is at odds with the standard announced by Sony (“merely capable of substantial noninfringing uses”), it’s not as large a split as it might seem. The Sony standard invites a court to examine whether the technology is “merely capable of substantial noninfringing uses”; Aimster can be reconciled with that standard simply by reading it to suggest that the court requires someone to advance some evidence of “mere capability of SNIUs”. In other words, in Aimster the court won’t go looking for it all by itself, and we must be of course reasonable in hearing what the parties present. I don’t love the Aimster standard (understatement) but I think any harm can be minimized, because …
  2. Again, no circuit split. … because Aimster is on the facts distinguishable from Sony, Grokster, and any post-Aimster technology with smart lawyers. Again, because the defending technology will have to demonstrate some kind of reasonable uses.
  3. Internal circuit split. To the extent that Grokster is seen as a circuit split with Aimster, not on fine legal points, but on the outcome and the overall thrust of the decision, Grokster is also in conflict with Napster. On the one hand this might be interpreted as suggesting even more confusion and reason for the Supremes to step in. But actually I think that the 9th Circuit can be reasonably viewed as trying to figure out a decent middle ground between bad guys and good guys, and Aimster fits in there. In this view, none of the three decisions is a significant departure from Sony requiring either corrective action or a change in course. (Of course, I may be biased: I think that the cases most in need of correction were Napster and Aimster.)

* Caveat: I swore I would re-read Sony, Napster, Aimster, and Grokster, before writing up these thoughts, but that’s a lot of pages of opinion, and, well, I just haven’t gotten around to re-reading them all in sequence. So if I’m wrong in my analysis, that’s my first line of defense as to why. ;-)