Subject: Re: Patents (was Re: DiBona, Allman, Tiemann, O'Reilly, Perens interview)
From: <kmself@ix.netcom.com>
Date: Mon, 31 Jan 2000 10:54:35 -0800
Mon, 31 Jan 2000 10:54:35 -0800
On Mon, Jan 31, 2000 at 06:39:14PM +0900, Stephen J. Turnbull wrote:
> >>>>> "kms" == Karsten M Self <kmself@ix.netcom.com> writes:

>     kms> There's still the problem of providing an incentive for a
>     kms> stricter rating of patent applications.  I don't see this
>     kms> happening, whether the resources for doing it are available
>     kms> or not.
> 
> Same one as you have for writing good software:  pride in one's work.
> Plus some push from the outside: examiners will not like having their
> names associated with egregiously bad patents.  Nor will their
> downstream employers.

Until you can show me that there is a downside to having one's name
associated with bad patent submissions (and AFAIK examiners' names are
not attached to patents cleared by them), I'll stick to my position on
this one.  Incentives in this case are much more likely to be set within
the bowels of Congress and the executive branch, not at the examiner's
desk.

>     kms> provisions, with DMCA it's possible to make a common carrier
>     kms> pull content on *assertion* of infringement, not proof.  I'm
>     kms> not sure if this requires and injunction or not, my reading
>     kms> of the applicable law is not.
> 
> "Make" != "injunction"?

I'm having trouble locating the current text at Cornell's USC online, but
it should be 17 USC 512 (c), as amended by the DMCA which spells out the
infringement and required actions as a result.  My general understanding
is that ISPs are not liable for infringing content on their systems if
they had no prior knowledge of its existence, doesn't directly benefit
(monitarily) from the material, and:

    (C) upon notification of claimed infringement as described in
    paragraph (3), responds expeditiously to remove, or disable access to,
    the material that is claimed to be infringing or to be the subject
    of infringing activity.

(a copy of the text of the Act may be found here:
http://www.loc.gov/copyright/legislation/hr2281.pdf)

My reading, again, is that this is not injunctive relief for the alleged
infringed party, but essentially a bit of legalized blackmail -- take
this down and you're not liable for any potential damages -- which
violates due process.  The removal is on notification -- "claimed to be
infringing" -- without any requirement of proof.  Bad juju.

Again, the subject is copyright, not patent law, but we've now got
legislative precedent for a cease-and-desist without proof of
infringement or court mandate (injunction), based on unsubstantiated IP
claims.

>     kms> How about, say, and E-brokerage house defending its market
>     kms> turf against other comers.  Leaving IBM alone, but picking on
>     kms> smaller targets.
> 
> The other comers are going to be Morgan Stanley Dean Witter, Merrill
> Lynch, et al.  "Small"?

I had in mind the other e-brokerages.  New kids on the block.  Not a lot
of capital or much of a patent portfolio yet.  The first of these to
emerge with a blocking business-methods patent could squat on all the
others.

>     kms> Thanks for making my day, Steve.
> 
> <BOW>
> We ain't called the "dismal science" for nothing.
> </BOW>

;-)

> It's possible that we can educate those F 500 firms, of course.  But I
> don't think their natural tendency is going to be to blow away IP
> protections, since most of them have legal departments with vested
> interests in that.

I sense a circle here -- isn't this pretty much how I opened this
discussion?

-- 
Karsten M. Self (kmself@ix.netcom.com)
    What part of "Gestalt" don't you understand?

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