November 19, 2005
Canada lets Mega Bloks build on expired Lego patents

Michael Geist points to a new decision from Canada's Supreme Court ruling that Lego couldn't use a claimed trademark on the interlocking shape of its blocks to insulate them from competition after its patent expired. The ruling echoes a recent U.S. Supreme Court decision, TrafFix Devices Inc. v. Marketing Displays Inc. (2001), that an expired patent couldn't be extended by a claim that the design had acquired trade dress distinctiveness.

Lego (Kirkbi) had patented the Lego system of interlocking blocks and now claimed that even after the patent expired, the "distinctive orthogonal pattern of raised studs distributed on the top of each toy-building brick" had become "LEGO indicia" due protection as an unregistered trademark. Without this protection, Kirkbi protested, Mega Blok would be able to free-ride on the popularity established by Lego's hard work and reputation for quality.

One must start from the problem the appellant faced when its patents expired. ...[T]he very cleverness and flexibility of LEGO technology, of the combination of studs on top of the brick and tubes under it, had almost turned "LEGO" into a household word. Source and product became identified. LEGO bricks, for many, came to designate these small colourful building blocks, with their clever locking system. But when the patents expired, the LEGO technology fell into the public domain. The LEGO name, whether on the product, on its packaging or in its advertising, remained protected, but the monopoly on the wares themselves was over. The monopoly had been the key to the building up and preservation of LEGO’s market share, and so Kirkbi employed a number of different means to protect it, one of which was the assertion of a trade-mark.

The court properly recognized that the patent confers a limited monopoly. In Canada, as in the United States, patent protection is temporary: "Patent protection rests on a concept of a bargain between the inventor and the public. In return for disclosure of the invention to the public, the inventor acquires for a limited time the exclusive right to exploit it." Entry into the public domain after the patent's expiration is a core part of the public-private bargain -- a bargain that can't be abrogated by trademark claims.

True, Kirkbi had built a Lego empire, but as an empire founded on the functional properties of Lego's interlocking bricks, its moats came with an expiration date. "Free riding" after that date benefits society by giving more companies the chance to build interlocking bricks, giving more kids (and non-kids) access to reasonably priced building kits.

The fact is, though, that the monopoly on the bricks is over, and MEGA BLOKS and LEGO bricks may be interchangeable in the bins of the playrooms of the nation – dragons, castles and knights may be designed with them, without any distinction. The marketing operations of Ritvik are legitimate and may not be challenged under s. 7(b) [of the Trade-marks Act].

This reasoning, like the similar U.S. TrafFix decision, reflects a general feature of Anglo-American intellectual property law: Intellectual creations generate value that is shared between the creator and the public. We do not say, "if value then right to exclude," but rather that creators accept the bargain of limited-scope rights when they create.

Let us not forget these principles in the copyfight. Though the term of copyright may never expire in our lifetimes, its scope is cabined by fair use, first sale, and limits on the activities copyright reaches. The copyright bargain authors accept when they write and publish does not include the right to charge for every search index or to break your computer in the name of "securing" music.

Posted by Wendy at 10:04 AM
November 17, 2005
Boiling Frogs with Sony's Rootkit

For years, the entertainment industry's DRM strategy has seemed to follow the old story about how to boil a frog: Start it going in a pan of cold water and gradually turn up the heat.

So it is with digital rights management: Start consumers off with restrictions only the techiest edge-cases among them will notice, then quietly increase control. Apple's iTunes, for example, has downgraded the behavior of already-purchased music files. One day you could burn a playlist 10 times, the next day only seven.

Once you've accepted that "your" music comes with only a set of pre-defined uses -- and not any personal use you can invent -- you might not notice as you lose the ability to do your own format-shifting. Just as fans once re-purchased music as it moved from 45 to LP to CD, perhaps they could be conditioned not to complain if they were made to re-license when they replaced computers and stereo components. Instead of selling CDs, then, marketers will then be able to slice up the "music experience" and license pieces back to the fans whose rights they've taken, ideally for more than the one-time profit on a CD.

Until Sony BMG turned up the heat too fast with its rootkit. As eHomeUpgrade puts it, this "DRM Nightmare" has been good for consumer rights.

Given that Sony has taken to installing spyware to protect their music, you may be wondering why this episode in the DRM struggle has been good for the consumer. Simple: consumer awareness. For the past several years, much has been made of viruses and spyware and their adverse effects on our computers. The industry designed to stop these threats brings in tens of millions of dollars every year to stop these vicious pieces of software. The average consumer understands what a virus or spyware is. However, stop most consumers and ask them to explain DRM and you'll probably get a blank stare. Up until now, the consumer has been uneducated on what DRM is and how it will affect their daily lives. The major music and movie studios have been fine with this; and now that awareness is changing.

The average fan, who may never have been blocked from playing music from the (new) Napster music store on an iPod; who may never have tried to create her own version of the Daily Show from a TiVo-to-Go'd evening news program but been stymied by copy controls; suddenly has a vivid example of how DRM takes your music -- and your computer -- away from you. CERT, the US Computer Emergency Response Team, is advising users, "Do not install software from sources that you do not expect to contain software, such as an audio CD."

I think the frog may be ready to jump out.

Posted by Wendy at 11:55 AM
November 08, 2005
Everything is an API: Amazon's Mechanical Turk

Amazon recently introduced the Amazon Mechanical Turk (in beta, naturally), an interface by which programmers can insert tasks for humans into their code. Amazon will turn around and farm the tasks out to people willing to determine "which of these photographs best resepresents the 'Psychic Believers' storefront" for a few cents a pop.

All software developers need to do is write normal code. The pseudo code below illustrates how simple this can be.

 read (photo);
 photoContainsHuman = callMechanicalTurk(photo);
 if (photoContainsHuman == TRUE) {
 else {

There's evidently an eager pool of people ready to become subroutines -- overwhelming the beta site on which Amazon is using the identifications to match storefronts to the "Find it on the block" feature of its A9 search.

For the humans in the loop, completing these "human intelligence tasks" isn't a road to riches. If you could match 3 images a minute, you'd barely make minimum wage. On the other hand, it might be more profitable than doodling during a dull conference call.

For developers of hybrid applications, Amazon's offering an infrastructure for outsourcing: a generic API to call upon an army of workers ready for photo matching, distributed proof reading, or CAPTCHA deciphering. For Amazon, it's a commission each time someone uses their matchmaking services.

Funny, science fiction writers told us that we'd become part cyborg by implanting computers into ourselves and harnessing their processing power for human goals. I guess we're entering the Matrix instead.

Posted by Wendy at 12:13 PM
November 06, 2005
NSLs on the rise: Reporter's sleuthing is no substitute for government transparency

Barton Gellman of the Washington Post has a terrific article: The FBI's Secret Scrutiny, on the rising use of National Security Letters, the secret subpoenas the government can use to collect information on communications and transaction information. The constitutionality of NSLs was challenged before the Second Circuit last week.

The Post did some careful sleuthing to find the details of of some recent NSL uses:

The Washington Post established their identities -- still under seal in the U.S. Court of Appeals for the 2nd Circuit -- by comparing unsealed portions of the file with public records and information gleaned from people who had no knowledge of the FBI demand.

When more than 30,000 NSLs are served each year, on mere suspicion that the records sought will be relevant to terrorist investigation, it's likely some of the demands will overreach. Yet the total, perpetual secrecy that enshrouding the demands prevents the public from learning enough to challenge them. The government can dismiss the stories that do come out -- like the demand for records of all visitors to Las Vegas in December 2003 -- as aberrations, and the public can do little to verify that the situation has changed.

The examples the Post collects are more than anecdotes: the Connecticut library asked for all records of a particular computer's use, records that could include books checked out, emails composed in a webmail system, or web pages visited, perhaps with patron-identifying details; the North Carolina school asked for all records pertaining to a former student who was later exonerated from any suspicion but whose records the government will not expunge; the Las Vegas hotels and casinos asked to rat out all their guests. Without systematic government accountability for NSLs, we can only assume that these examples are the norm. The government has never pointed to a case in which evidence gathered by NSL helped thwart or prosecute terrorism, the Post adds.

The ACLU argued forcefully for the NSL statute's unconstitutionality last week. The statute's secrecy provisions deny those with the most incentive to challenge it -- those whose data is gathered -- the knowledge that they have a challenge to raise. Perpetual secrecy denies the public the ability to evaluate tradeoffs between liberty and security. By peeling back the veil of secrecy just a bit, this Post story shows how much of the debate we're missing -- and why the entire secrecy statute should be declared unconstitutional.

Posted by Wendy at 05:23 PM
November 04, 2005
Content Protection on the Hill

The Berkman Center asked me a few questions about yesterday's broadcast flag hearing. Messrs Glickman and Bainwol spoke in favor of greater control, while Ms. Sohn and Mr. Petricone talked of the need to protect innovation and fair use, and the public's concerns were picked up by Reps. Boucher and Lofgren. See the Berkman Center site for more.

The question that left Dan Glickman cold came from Rep. Meehan, asking about the compulsory licensing of technology standards: (paraphrase) Do you think tech companies should have to surrender their intellectual property to protect yours?

Posted by Wendy at 06:49 PM
November 03, 2005
Broadcast Flag Hearing Today

Public Knowledge posts information about today's Judiciary Subcommittee hearing, "Content Protection in the Digital Age," including a link to the webcast, at 2:45 PM EST.

Along with a bill giving the FCC a blank check to reimplement the once-killed Broadcast Flag Rule, the hearing has proposals on the table to close the "analog hole" and to restrict digital radio receivers. Like the Broadcast Flag, these additional controls won't stop "piracy," but they will block user innovation and non-infringing uses of media content.

Posted by Wendy at 09:44 AM
November 02, 2005
Second Circuit Hears NSL Challenge

The Second Circuit Court of Appeals heard arguments in Doe v. Gonzales, two cases challenging the constitutionality of National Security Letters. NSLs are secret subpoenas for communications records -- so secret that NSL recipients are gagged from even revealing their identities as recipients, hence "Doe." The FBI's power to send NSLs demanding server logs, library patron records, and other sensitive communication details was expanded by the USA PATRIOT Act, but challenges have been frustrated until now by the gag orders that the NSLs include. Under the law, NSL recipients are forever barred from disclosing the subpoena, so the actual targets of the subpoena may never know that their communications have been scrutinized.

Does, represented by the ACLU, are an ISP and a member of the American Library Association. Both had won decisions below, one that the NSL law was unconstitutional on First and Fourth Amendment grounds (SDNY), the other that the recipient could disclose its identity (D.Conn.) The government appealed. The Second Circuit panel of Cardamone, McLaughlin, and Parker heard arguments.

ACLU argued the NSLs frustrated judicial review because under the text of the letters and the law, it was not clear the recipient could even speak about the matter to a lawyer. The government suggested it was obvious that NSLs could be discussed with counsel, but could not commit to changing the language of the subpoenas when pressed by the court.

The court, with fairly active questioning from Judges Parker and Cardamone, seemed concerned with the perpetual secrecy that NSLs impose. "This throws our society under a great shroud of secrecy," as Judge Parker put it in questions to the government. The Connecticut ALA member, in particular, argued that it should be permitted to speak of its particular experience -- to exercise its First Amendment rights to participate in government debate over PATRIOT re-authorizatoin.

Judge Marrero's decision below, finding the NSL statute unconstitutional, accounted for the First Amendment rights of online speakers and their service providers. Let's hope the Second Circuit's concerns are reflected in a similar decision.

For more detail, see Kurt Opsahl's report in EFF's deeplinks.

Posted by Wendy at 09:06 PM