ACTA

As reported in “Meet SOPA’s Evil Twin, ACTA,” SOPA’s demise has brought the Anti-Counterfeiting Trade Agreement–ACTA–into focus. (The Office of the U.S. Trade Representative has posted ACTA’s text.)  The U.S. was among the group of nations that signed ACTA last October; 22 European countries signed it last Thursday, prompting protests throughout Europe (ars technica, “Opponents protest signing of ACTA without adequate debate“). The U.S. signed ACTA as an Executive Agreement that (the Obama administration claims) does not change U.S. law and thus need not be submitted to Congress, limiting public commentary on its provisions.  Jack Goldsmith and Larry Lessig challenged the Constitutionality of the administration’s secret ACTA negotiations in a  March 2010 Washington Post Op-Ed.

[ACTA’s] proposals [contained in a leaked January 2010 draft] might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis . . .

The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president’s express constitutional powers (such as the power to recognize foreign governments) . . .

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

Obscured by SOPA, ACTA managed to fly under the radar to multi-national ratification. The question is whether it’s too late.

Rep. Darrell Issa (R-CA) joined the chorus of criticism this week when he called ACTA “more dangerous than SOPA” at a panel at the World Economic Forum in Davos, Switzerland. “It’s not coming to me for a vote,” he said. “It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.”

SOPA Status

It’s been a consequential week for the Stop Online Piracy Act (SOPA) and the Protect IP Act, the two controversial pieces of copyright-protected legislation pending in Congress. I’ve posted about these bills in recent months but I’ve not attempted to post the play-by-play culminating in last week’s coordinated online protest against the bills. Now that the bills have stalled–the New York Times reports “the pressures of an election year make action this year unlikely”–over the next few days I want to take time to compare the bills’ stated purposes with their methods for achieving those purposes, and separate fact and myth from arguments of both the bills’ proponents and its opponents. These particular bills may be gone for good but the issues they address and, as important, the music, motion picture, and publishing industry lobbying effort that pushed for their creation are still patrolling the House and Senate.

EU Rules ISP Not Required to Monitor for Copyright Enforcement

While Congress considers passing legislation that imposes duties on ISP’s to monitor for and take affirmative steps to counter copyright infringement the European Court of Justice–the EU’s high court–held this week “that Internet service providers could not be required to monitor their customers’ online activity to filter out the illegal sharing of music and other copyrighted material.”

Stop SOPA

Here’s another NY Times Op-Ed, this one by Rebecca MacKinnon, titled Stop the Great Firewall of America. MacKinnon compares effects of the the proposed Stop Online Privacy Act–the Senate version is the Protect IP Act–to the Great Firewall of China, i.e. Chinese censorship of online content. These proposed laws would upend the DMCA notice-and-take down provisions that establish the ISP safe harbor from liability for copyrighted content and impose affirmative duties on ISPs to screen for unauthorized posting of copyrighted content. These are dangerous laws that would protect copyright at the expense of speech and other democratic principles.

Cost of Patent Trolls

In Study: patent trolls have cost innovators half a trillion dollars Ars Technica reports on findings of three Boston University professors who studied the economics of patent-infringement lawsuits filed by “non-practicing entities”–business entities that exist only to own patent portfolios and sue for infringement.  The cost for publicly-traded companies since 1990 is $500 trillion and lately has run at about $83 billion a year. The researchers used stock market event study analysis to calculate the cost.  Read the article to learn more.

Court Reinstates Tenenbaum Damage Award

The First Circuit reinstated the jury’s $675,000 damage award to Sony BMG in its copyright infringement case against music-sharer Joel Tenenbaum, but the decision did not reach the merits of District Court Judge Nancy Gertner’s holding that the original award was so excessive as to violate Tenenbaum’s Constitutional right to due process. Instead the court ruled that before addressing the Constitutional issue Gertner should have used her power of remittur (“the procedural process by which a verdict of the jury is diminished by subtraction,” Black’s Law Dictionary, 5th Ed.*) to reduce the award, which would have given Sony the choice either to accept the reduced award or seek a new trial. Sony wins this round with a warning that the court or Congress may drop the other shoe.

*Old I know–it’s the edition I bought in law school.  The current edition is the 9th.

Patents Sword and Shield

I’ve blogged recently (here and here) about businesses that acquire patent portfolios for the sole end of aggressive litigation intended to force royalty deals (as opposed to, say, acquiring patents to exploit their technology). Google’s planned acquisition of Motorola Mobility will give it control of MM’s portfolio of 17,000 patents to, as the Wall Street Journal reports, “defend itself against a rash of lawsuits against its Android software.” The Journal reports that also, “[b]esides countersuing in the event it is attacked, Google could use the Motorola patents to lend a legal hand to Android partners such as HTC Corp., which is entangled in litigation with Apple over Android.”

More Patent Abuse

The prior post was timely.  The Official Google Blog just ran a post titled When Patents Attack Android describing “a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.”  The culprits paid $4.5 billion for Novell’s and Nortell’s old patents–five times their pre-auction estimated worth of $900 million and $1.5 billion more than Google’s bid–and are “seeking $15 licensing fees for every Android device[,] attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Phone 7.”  Let’s get ready to rumble!

Patent Abuse

In When Patents Attack!–truly a great title–This American Life devotes an hour to uses and abuses of software patents, focusing on Intellectual Ventures, a Silicon Valley company that exists to acquire and enforce patents through litigation.  Outsiders view Intellectual Ventures as a patent troll–“a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a manner considered (by the party using the term) unduly aggressive or opportunistic, often with no intention to manufacture or market the patented invention” (I am perfectly comfortable citing Wikipedia for this definition).  Intellectual Ventures disagrees.  It’s a provocative episode if you have any interest in intellectual property and cutting-edge issues in patent law.  One criticism is that it leaves the impression that ideas themselves can be patented, when patent law protects the manifestation or implementation of an idea but not the idea itself.  As I said last night in class you cannot patent the idea <mousetrap>, only a particularly-described method or process for catching mice.  (“Use peanut butter” is not particular enough.)  The episode does address how software patent claims are often overbroad, throwing a net over far more than is legitimate, and I recommend it notwithstanding my criticism.