BC Law IPTF Blog

This woman did: Barbara A. Ringer, who joined the Copyright Office at the Library of Congress straight out of Columbia Law School, and 21 years later oversaw the passage of the revolutionary Copyright Act of 1976. At the time Ms. Ringer joined the Copyright Office, the 1909 law in place provided for 28 years of copyright from date of publication, after which works could pass into the public domain; the ’76 Act extended the term to life of the creator plus 50 years, and also created the statutory fair use exception. While some may disagree about the merits of copyright term extension, Ms. Ringer’s objective was always to protect the rights of authors and content creators.

Ms. Ringer also won a gender discrimination suit to become the first woman Register of Copyrights in 1973. She died on April 9th.

Today in Stockholm the Swedish District Court handed down a  $3.5 Million fine and one year in jail time for the people behind The Pirate Bay, a popular bittorrent tracker.  While the people fined say they would rather burn down their homes than pay the fine, (Ars interview), it appears they will have to serve the imprisonment.  The IFPI, a European version of the RIAA in the United States, prosecuted for the copyright holders in the case.  Sweden typically has a more lax attitude towards copyright infringement, which is one of many reasons The Pirate Bay hosted there.  In Sweden, a law recently went into effect mandating the disclosure of private data by ISP’s of file-sharers.   The trial has major implications for all of the European countries implementing the IPRED, as well as bolstering the position of copyright enforcers in the United States as well. The Pirate Bay website is currently still functioning and hosting torrent files. 

The Supreme Court’s recent decision in Wyeth v. Levine held that FDA approval of a drug’s labeling does not preempt a state law tort claim for inadequate labeling.  So what do you do if you’re counsel to a pharmaceutical company making physician-administered drugs?  Put the biggest, scariest black box warning you can on every prescription drug you sell.  There’s no downside!  Physicians frequently don’t read labeling, relying instead on prior experience with the drug, or what they learn from pharmaceutical reps and colleagues.  Patients rarely even see these labels, and instead hear only the doctor’s summary of risks.  This course of action would provide a complete defense for the drug manufacturer so that tort liability will stop with the administering physician.

This seems absurd and counterintuitive; shouldn’t drug warning labels communicate actual dangers and not just be a proxy for a tort defense?  FDA needs to step in and address this before physicians and patients have no way of knowing the actual dangers of these drugs.

Pfizer’s purchase of Wyeth is big news for the pharmaceutical industry, and for big business in general.  Because its blockbuster cholesterol drug Lipitor comes off patent in 2010, probably ceding much of its $12.6 billion market to generics, Pfizer went looking to boost its pipeline in search of the next blockbuster drug.

Despite the generally gloomy outlook on Pfizer’s own pipeline, it still has a number of blockbuster drugs that remain on patent (based on rough projected global sales for 2008): rheumatoid arthritis drug Celebrex ($2.5 billion, on patent until 2014), Xalatan for glaucoma ($1.8 billion, on patent until 2011), Detrol for overactive bladder ($1.2 billion, on patent until 2012), antibacterial drug Zyvox ($1.1 billion, on patent until 2021) and schizophrenia drug Geodon ($1.0 billion, on patent until 2012).  The company still makes money from off-patent drugs, such as erectile dysfunction treatment Viagra ($2 billion, off patent since 2000), but sales generally drop off dramatically as patents expire and exclusivity ends.  See high blood pressure medication Norvasc ($2.2 billion, but down from $4.9 billion in 2006 since it came off patent in 2007), antidepressant Zoloft ($142 million, but down from $3.3 billion in 2005, off patent since 2006) and antibacterial Zithromax ($121 million, but down from $2 billion in its patent expiration year of 2005).

Pfizer acquires a major player in Wyeth, with blockbuster drugs including antidepressant Effexor ($3.9 billion, off patent in 2010), children’s vaccine Prevnar ($2.7 billion , off patent in 2007 in the US, but extended to 2012 in Europe), arthritis drug Enbrel ($3.8 billion, off patent in 2009), antibiotic Zosyn ($1.3 billion, off patent in 2007) and sales from nutritionals, vitamins and Advil totaling $3.0 billion in 2008.

This represents a trend in the pharmaceutical industry towards consolidation, in the hope of producing the next Lipitor, a drug which can net a company tens of billions of dollars each year.  Of course, monopoly profits only come with exclusivity, so I’m guessing patent lawyers and IP litigators will continue to find themselves very busy, even in the down economy.

On January 6th, Apple announced that it will offer music from all four major music labels (Universal, BMG, Warner Bros. and EMI) for the first time as DRM-free downloads.  This is a huge step for iTunes, finally catching up with the method Amazon MP3 has used since its inception.  This represents a policy shift towards allowing users to freely transfer songs between their computers and mp3 players, something previously made extremely difficult and awkward by Apple’s DRM scheme.  Though iTunes allowed authorization of up to 5 computers to play content purchased from its iTunes Store, this always seemed like an artificial and arbitrary restriction to place on its users (not to mention the fact that DRM protected content couldn’t be played on other mp3 players).  Apple of course was well within their legal rights to negotiate licensing however they pleased and to implement their DRM scheme, but this decision marks a clear statement that it was a failed policy as a business decision.

Even though iTunes clearly maintains the content advantage over Amazon MP3 (10 million songs versus only 6 million), I will continue to use Amazon MP3 exclusively, and recommend my friends do the same, both because of the universality of the mp3 format, and my general disdain for Apple products (don’t get me started on the pathetic quality of iTunes as a music player/manager).

More generally, this marks a business trend towards a new method of dissuading piracy: Give users the autonomy to view and use content in the way they please, and they will be more likely to legitimately purchase copyrighted material, and less likely to resort to illegal copying and dissemination.  This move by Apple, along with the free streaming video content offered by Hulu (a collaboration between NBC, Fox, MGM, Sony, Warner Bros. and more), and most other major networks making their shows available streaming for free on their websites, represents a win for end users, freed from arbitrary and cumbersome restrictions on the use and enjoyment of the growing variety of digital content becoming available on the web.

Should I have a property right in the parking space I laboriously shoveled out after yet another New England winter storm?  Can I lay any legal claim to that space when I leave it, such as by placing a marker of some kind in it?  Should I be entitled to slash the tires or break the windows of a car that takes the space I shoveled out?

I’m sure these thoughts seem absurd (especially to those outside of urban areas in New England), but I can’t help but ponder them when I spend hours trying to find, clear out and keep a parking spot on my street in Somerville, MA (New England’s most densely populated city).  It doesn’t help matters when the city declares a snow emergency, towing cars parked on the even side of the street and cutting the number of available parking spaces in half.

The visceral notion that “I shoveled it, I should get to keep it,” rings true in a classic Lockean way: the labor of your body and the work of your hands is properly yours.  See John Locke, Second Treatise of Civil Government, Chapter 5, §27.  But from a modern legal standpoint, it would seem impossible for a private citizen to obtain any kind of property right in what is certainly government property.  It’s not the wild west, you can’t stake a claim to a piece of pavement simply because you surveyed it, dusted it off and tied your horse up there.  Methods other than simply staking your claim don’t look promising.  Generally, adverse possession is not an option, as most States explicitly exempt public roadways from adverse possession by statute.  See, e.g., Colo. Rev. Stat. § 38-41-101(2) (2008).  Notably, Massachusetts is an exception to this rule, only disallowing adverse possession against the commonwealth and its political subdivisions except in connection with land used for certain environmental purposes.  See Mass. Gen. L. Ch. 260, §31; Lawrence v. Concord, 439 Mass. 416 (2003).  Still, because of the unlikelihood of occupying a city parking space for 20 years in any urban area of the Commonwealth without someone breaking the continuity, adverse possession isn’t a realistic option, even in Massachusetts.

Nonetheless, a longstanding snowstorm practice, especially in South Boston, is to put lawn furniture, traffic cones, trash cans, cinderblocks and any other large object in resident-cleared parking spaces in order to reserve them.  These rights are vigorously defended in that neighborhood, resulting in the aforementioned slashed tires, broken windows, and even the occasional assault.  This is a place where you simply do NOT want to take someone’s clearly marked space.

Despite the questionable legality of this process, it has been sanctioned by Boston mayor Thomas M. Menino, to a limited extent.  In 2003, in response to some South Boston residents reserving spaces for three weeks after a two-inch snowfall, Menino put in place a 48-hour cap on the reservation of shoveled out spaces, implicitly endorsing the practice.  A long battle between Menino’s garbage crews (who pick up the milk crates, barrels and shopping carts used to save spaces) and South Boston residents have ensued, epitomized by South Boston city councilor James M. Kelly’s declaration to Menino that “I’ve got more barrels than he’s got trucks.”

It’s questionable whether Menino even has the authority to allow the private reservation of public property, even for a limited time, but only in the most academic sense.  The fact is that parking spaces will continue to be reserved in South Boston and other urban areas of Massachusetts, whether legally or not, and municipalities will implement their own policies to prevent, curtail or begrudgingly accept the practice for practicality’s sake.  So as I continue to battle the relentlessly falling snow, increasingly discolored by salt, sand and cat litter, I will consider the prospect of defending the product of my labor as John Locke would say I should… and probably just look for another parking space.

An entertaining and informative piece on the “game book” for conducting e-discovery, using the metaphor of a basketball game. Practical and specific points and tips for anyone interested in the new world of electronic discovery.  

“[I]f you play hide the ball in e-discovery, and get caught, you may not only lose the case, but you may lose your job, and maybe even your license. … Instead, an e-Discovery Team plays a series of games that culminates in throwing the ball to the other side, not hiding it.”

Given the way that the gov’t can discover your personal information–name and address–from your IP, if you care about privacy, then you should care about how your IP is revealed. Now this can be done in many ways regarding web browsing, but how about web-based e-mail? I’ve looked at Gmail and Yahoo!, and Yahoo! puts your client PC’s IP address in the e-mail headers; Gmail does not. Yahoo! makes this clear in their “privacy” policy:

Yahoo! Mail includes IP addresses in outgoing mail message headers, as specified by standard Internet protocol.       

And I’ve verified this through some e-mail tests. So if you send e-mail to a government address–whether it’s fake, spoofed, a honeypot, what-not–through Yahoo! Mail, then you’re basically telling the recipient who you are in real life. Even anyone with easily Google-able tools on the Internet, can find out your general location and information on your ISP.

Update: Hotmail also passes your IP address in the headers, too. (It’s passed as “X-Originating-Ip.”) So watch out for Yahoo! and Hotmail.

Pretty straightforward description of how to grab an IP (probably via a honeypot) and attribute it to a downloading user.

From U.S. v. Carter, No. 2:07-CR-00184-RLH (GWF), 2008 WL 623600, at *4 (D. Nev. March 6, 2008):

The Affidavit then described the steps taken by the Government to identify the user of Internet Protocol (IP) address 68.108.184.145. A search of the publicly available website arin.net revealed IP address 68.108.184.145 was controlled by Cox Communications. On October 31, 2006, the Government served an administrative subpoena on Cox Communications to identify the individual subscriber to IP address 68.108.184.145 on October 25, 2006 at 7:12 p.m. PDT when a user of this IP address first attempted to download the posting created by SA Luders on the Ranchi message board. On November 10, 2006, Cox Communications responded to the subpoena by identifying Luana Carter, 3815 North Nellis Boulevard, Number 26, Las Vegas, Nevada 89115, telephone number 702-860-7293, as the subscriber to IP address 68.108.184.145. Exhibit “A”, p. 16, ¶¶ 35-38. On January 17, 2007, the Government conducted a search of the public records data base LexisNexis which indicted that Luana Carter resided at the above listed address and that Defendant Travis Carter was a household member at that address. Id., ¶ 39. On January 17, 2007, the Government also checked Nevada Department of Motor Vehicle (DMV) records which revealed a current driver’s license for Luana Carter, with the same social security number, date of birth and physical address obtained through LexisNexis. Exhibit “A”, pp. 16-17, ¶ 40. On February 8, 2007, the Government also served an administrative subpoena on Nevada Power Company for subscriber information for 3815 North Nellis Boulevard, Number 26, Las Vegas, Nevada 89115. Nevada Power Company’s response to the subpoena listed Luana Carter as having an active account at that address since June 22, 2001 and listed her home telephone number as 702-860-7293. Id., ¶ 4.

A recent thread of comments on Lifehacker shows how non-governmental organizations are using this method to track down copyright infringers. If you use a P2P service such as BitTorrent, you reveal your IP to any seeder (or any other leecher in the swarm), and if the seeder is, for example, the RIAA, then they know your IP. A simple request to your ISP will cough up your name and address. And then they can get a search warrant to grab your computer(s).

If you read the rest of the case, then you’ll see that part of defense hinges upon a “wireless defense”–the “I have an open wireless router, and it could have been someone else besides me” defense. Well, that might be true, but it can’t upset the “fair probability” that the person doing the downloading the IP might have been the owner of the wireless router. I wonder, though, what the physical circumstances of the defendant was… Was he merely positing the hypothetical for his house in the countryside? Was he merely hoping for war drivers? Or was he living in an apartment building where folks on his floor and the floors above and below him–as well as war drivers–could leech his wireless bandwidth?

I wonder if the “fair probability” might erode a bit more in a high-density situation. If you really do share your wireless bandwidth with a handful of other users, is there still a “fair probability” that any Internet traffic is attributable to the router owner? Looked at another way, if someone could leech off another person’s wireless bandwidth, then maybe that person would be given freer rein to use the bandwidth in less savory ways. I mean, that’s largely why people war drive in the first place.

Recently on Bill Heinze’s I/P Updates, I read about a note published by George Mason authors entitled “Improving Patent Examination Efficiency and Quality, An Operations Research Analysis of the USPTO, Using Queuing Theory“. 17 Fed. Cir. B. J. 133, 163 (2007).    The authors were attempting to validate validate the PTO’s concern with excessive continuation filings and proposed new rules regarding continuations.  The model, which incorporated feedback and branching of applications, was based on two assumptions:

1. A priority queue processes higher priority items first, giving them a shorter queuing delay – but at only at the expense of longer queuing delays for lower-priority arrivals. Since the USPTO gives higher priority to RCEs and continuing applications than to regular new applications, large numbers of RCEs and continuing applications should result in disproportionate waiting times for regular new applications.
2. At the very least, a limit on the number of continuing applications would be desirable because continuing applications can produce multiple generations of unlimited numbers of high priority offspring. RCEs and multiple non-final office actions both contribute to the risk of starvation, but pose less potential risk than continuing applications because they do not produce parallel offspring (branching feedback).

Surprisingly, the study found that continuing applications were not the primary cause of congestion of patent applications at the PTO.  According to the model, the excessive number of non-final rejections per application was the main culprit. The non-final rejections in each round of prosecution exceeded by far the number of second and later RCEs and continuation applications.   Thus, limiting or prohibiting successive generations of RCEs and continuation applications as the only change will not be effective in reducing the backlog.  Instead, reducing non-final rejections per application would be more effective because it would relieve the PTO of its primary burden on the system. 

The note went on to say that hiring additional examiners is not an effective solution because the PTO would need to exponentially increase its personnel in order to keep up with its load of patent applications.  Instead, a policy change addressing the source of the problems is required.

 Thus, it looks like it is time for the PTO to revise its rules, which have already been brought into question by Tafas v. Dudas, described in my blog from Nov. 2.  Using research data and mathematical models may prove to be a valuable aid as the PTO leadership considers its next move.