BC Law IPTF Blog

My suggestions for posters for the newly-refurbished office: Stephen Wolfram’s Mathematica Gallery Collection.

In Ethan Zuckerman’s blog: …My heart’s in Accra » A bitter fight brewing: Ethiopia and Starbucks clash over coffee:

Last year, the Ethiopian government filed trademark applications to protect the names “Sidaro”, “Harar” and “Yirgacheffe” - the hope was to prevent unscrupulous coffee dealers from buying inexpensive beans from other countries and selling them as “Sidaro”, whether or not they emerged from the region.

Unfortunately, the USPTO (US Patent and Trademark Office) rejected Ethiopia’s claims to these three names.

* * *

The absurdity of the situation, as I read it, is the need for a very poor nation to protect “intellectual property” they’ve owned for centuries in an expensive foreign market. The coffee situation makes me think of the notorious “turmeric patent“, where Indian scientists and attorneys had to present ancient Sanskrit manuscripts to overturn a US patent that introduced the “novel” use of turmeric for wound healing, a process used for thousands of years in India. The patent was overturned, but it’s a huge barrier for poor countries to have to litigate bogus patents in US court.

More controversy regarding indigenous property rights clashing with Western legal systems.

It’s Starbucks’ right to secure the patent in the U.S.–they applied for it first. Ethan is right that the problem is more with the USPTO than with Starbucks. There should, rather, be a certification system for marking beans from regions as being from those regions–this is being proposed now. This type of system is used already for apples and wines, among other products.

But can you trademark a name of a place? Could I trademark the name “France?” Have, for example, Native American tribes been able to protect use of their tribal names from being owned by products? The Crazy Horse malt liquor suit was settled. The case of some Native Americans suing the Washington Redskins for their trademark of their disparaging name is still alive. Pro-Football, Inc. v. Harjo, 415 F.3d 44, 46 (C.A.D.C. 2005).

Are we forced to extra-judicial resorts in resolving these types of issues? Everyone seems to be pushing for settlement and policy issues. Should the courts step in and take a stand?

As always, the Dreamhost Blog has a brilliantly funny post about the problems that Congress’s change in DST will have come 2007:

Now we can all sit back, have some fois gras, and laugh.

Or can we?

Not only is fois gras on the outs, maybe you’ve heard that Congress has recently legislated that starting in 2007, Daylight Saving Time will be extended for another four (or sometimes five) weeks!

POW! Just like that!

With less than two years warning, Congress decided to completely re-break what must again be millions of lines of time-related code across pretty much every computer in the world.

So it’s not *so* bad. But it does require a lot of wholesale code changes. The Dreamhost guys wonder why the world made such a huge deal about Y2K, when the coding issue is similar.

From Wikipedia on the changes to DST:

The bill amends the Uniform Time Act of 1966 by changing the start and end dates of daylight saving time starting in 2007. Clocks will be set ahead one hour on the second Sunday of March instead of the current first Sunday of April. Clocks will be set back one hour on the first Sunday in November, rather than the last Sunday of October. This will affect accuracy of electronic clocks that had pre-programmed dates for adjusting to daylight saving time. The date for the end of daylight saving time has the effect of increasing evening light on Halloween (October 31).

Again, one might ask, “Paul, what does this have to do with the law?” (And that’s because most people think of technology-related law as always IP. But it’s not.) The government made a change in DST, shortening the time our days are lengthened. This has energy policy ramifications–the obvious reasoning behind it–but it also shows how legislation, and not just regulation, has real impacts upon the business of operating technology.

On-line transaction service provider, FirePay, one of the leaders in converting credit card transactions into gambling money, has e-mailed its users regarding the Unlawful Internet Gambling Enforcement Act of 2006:

SUBJECT: New FirePay policy for US account holders

On September 30, 2006, the United States Congress passed the Unlawful Internet Gambling Enforcement Act of 2006.

Once President Bush approves the Act. FirePay (www.firepay.com) will no longer allow US consumer payments for online gambling merchants.

Beginning the day President Bush signs the Act, FirePay will decline any purchase transactions from US FirePay account holders at any gambling merchant site.

Ten days after President Bush signs the Act, FirePay will decline any transfer attempt made by any online gambling merchant to a US FirePay account.

All US FirePay accounts holders will continue to be able to make purchases and receive payments from non-gambling, online merchants, as well as “Deposit From” and “Withdraw To” their US bank account.

The UIGEA prohibits the transfer of US funds to an internet gambling business.

One of the big changes is in a few word changes in the bill. Previous to this Act, on-line poker players argued that most anti-gambling laws prohibited “games of chance,” and that poker had enough of a skill component to avoid this categorization. The new bill now re-phrases prohibited games as those “subject to chance.”

The on-line poker rush in the US may now be a bust for now. But I’m sure the fanatics out there will find a way to circumvent this. There’s too much money to be made.

Virtual Economies Attract Real-World Tax Attention - Reuters via Yahoo! News.

The article looks to the virtual economies underlying virtual communities such as Second Life and World of Warcraft:

“You could argue that to a certain degree the law has fallen (behind) because you can have a virtual asset and virtual capital gains, but there’s no mechanism by which you’re taxed on this stuff,” [Dan Miller, senior economist for the Joint Economic Committee of the U.S. Congress] told Reuters in a telephone interview.

* * *

Inside Second Life, users can buy and sell virtual objects from T-shirts to helicopters, develop virtual real estate, or hire out services ranging from architecture to exotic dancing. Up to $500,000 in user-to-user transactions take place every day, and the Second Life economy is growing by 10 to 15 percent a month.

“Ownership, property rights, all that stuff needs to be decided. There’s just too much money floating around,” said game designer Sam Lewis, who trained as an economist and has worked on games such as Star Wars Galaxies. He is currently lead designer for an upcoming game from Cartoon Network.

This is becoming such an important topic that Reuters has even opened up a Second Life virtual news bureau: http://secondlife.reuters.com

Politicians host community meetings. People advertise within the community. There is an exchange rate for the Linden dollar (as of Oct. 16, 2006 the exchange rate is L$243/USD). Business and progress are bustling in the virtual space.

Now that Google has acquired YouTube, Warner–amongst others–is re-routing their copyright violation claims up the ladder to Google. A Reuters article speculates that many others will follow, especially now that Google has deeper-pockets.

This particular case is interesting because Google now owns a 5% stake in Warner’s AOL.

This, again, is another technology-related post, tangentially related to the law.

I’m using the Torbutton Firefox plugin to route my brower requests through Vidalia/Privoxy and onto the Tor network. Tor is a technical method of constantly re-routing your web (or other Internet-related) requests through different Tor servers such that each “server step” along the way doesn’t know where the original request came from. (That’s an attempt at a simplification.) Using Tor, you can anonymize your web traffic.

So when I tried to search on Google, I was a bit confused when I was at the Danish Google - google.dk. I tried again, and then I was at the German Google. And then I realized what’s happening. My web request was getting routed from a Danish Tor server, google.com recognized my Danish “origin,” and then served me the Danish home page.

So, if anything but a little bit of a pain, it’s at least proof that my Tor-surfing is working. And my anonymity is somewhat retained.

(I’m working on a paper including a practical guide for Fourth Amendment privacy-protection of electronic communication.  That’s my justification for this post.)

Intel is currently being investigated by the European Commission on anti-trust charges stemming from alleged pricing pressure put upon retailers.  Microsoft has also faced the wrath of European anti-trust regulators for the past several years over several business practices.  Several European countries have also independently sparred with Apple over the closed format of its iTunes store.  Does this signal increased hostility to dominant US-based high tech companies?

From TechNewsWorld:
European regulatory authorities have taken a step toward bringing allegations that Intel (Nasdaq: INTC) is violating antitrust law closer to a resolution — and the company’s probable prosecution.

Officials investigating claims against the chip maker reportedly have presented their evidence to an internal panel of so-called “devil’s advocates,” a step taken before formal legal proceedings are launched.

If charges are levied, the competition commissioner will issue a statement of objections to the company. Intel’s European antitrust woes began several years ago in Germany, with allegations that retailers were being pressured into stocking only PCs that were equipped with Intel chips. Complaints also surfaced over Intel’s manufacturer rebate program.

Navigating the Rebate Issue

Surprisingly, rebates can be a gray area in anticompetition law, even in the United States, commented Tyler Baker, a partner with Fenwick & West in Silicon Valley.

“I don’t know all of the details about the rebate systems Intel uses, but I can tell you it is a very much unresolved question in this country,” he told the E-Commerce Times.

Many U.S. courts are hesitant to find that rebates are illegal, because they are a form of price competition — which antitrust laws encourage, he explained.

However, pricing can subtly morph into a de facto exclusive dealer’s arrangement when companies are required to buy large quantities of product to qualify for a manufacturer’s rebate.

“Some courts have found that rebates can be set up or structured to be more than just price competition,” Baker said.
Following Microsoft

Intel may be poised to head down the same path in Europe that Microsoft (Nasdaq: MSFT) has been on for the last several years. Microsoft’s antitrust legal problems extend into many different areas, Baker noted, so the analogy is not a perfect one. It is, however, close enough.

“Intel is a very dominant company, and dominant companies are sometimes judged by different standards. That is true both [in the U.S.] and in Europe,” he pointed out.

Intel might find, as Microsoft did, that business practices are not judged in isolation. While it might be unclear whether one activity could be considered an antitrust violation, the combination of several ambiguous business practices can add up to antitrust concerns in the eyes of regulators.

Whether charges will be filed is still uncertain, and it is too early to extrapolate any lessons from the latest events, Baker noted.

“If the EC brings a case, then other companies will have to pay greater attention, of course, to these issues,” he said.

On the other hand, the European Commission may decide not to press charges. After all, the panel of devil’s advocates was established precisely to ensure that poorly investigated cases do not enter the legal system. “That will also send a message,” Baker said.

Yesterday, Oct. 3, was the Day Against DRM (see Defective by Design’s Ten things to do on the Day Against DRM as well as their primer on DRM).

DreamHost Blog » iTunes Music Store

What is it?

It’s a new service (during the beta only open to DreamHost Customers) that allows you to sell your own digital files, a la iTMS.. but with a few key differences:

# No DRM is allowed.. period!
# Once you upload your file to sell, you pay a tiny one-time storage fee, and we serve it FOREVER at a nice, permanent, URL.
# Anybody who buys a file somebody offers via Files Forever get an online backup of it included.. that is, they may re-download the file as many times as they want, FOREVER!
# Any file you buy from Files Forever you can also “loan” to your friends via the service! They are then allowed to download the file as much as they want until you ask for it “back.” (This is awesome, trust me.)
# We handle all the payment processing / shopping cart stuff, and take just 5% 50c for credit card fees. (We combine purchases to minimize these costs too.)
# You can even offer an “affiliate cut” for people who re-sell your files!

Dreamhost is releasing this in protest of iTunes continued use of DRM (Digital Rights Management) restrictions on its multimedia files. This product is a mixture of file-sharing/sending services and a way of selling that content. So while it’s not its own iTunes store, it is the backend for anyone else to set up their own iTunes-like store.

In LabCorp v. Metabolite, LabCorp claimed that Metabolite infringed on its patent for assaying total homocysteine levels and correlating an elevated level with one of two vitamin B deficiencies in patients.  [Homocysteine is an amino acid in the blood, elevated levels of which may indicate cardiovascular or neurodegenerative diseases.]  

The Supreme Court granted cert to resolve the question of whether LabCorp’s patent was valid since it involves detecting a natural correlation between homocysteine and vitamin B, noting that “laws of nature, natural phenomena, and abstract ideas” are not patentable.  Recently, however, the Supreme Court dismissed the LabCorp v. Metabolite case as being “improvidently” taken in the first place.  

 

It has been argued that the Supreme Court’s dismissal of the case will encourage defendants to raise the issue of patentability of scientific principles whenever possible.  I am not sure I understand this argument, as the claim does not appear to be for the phenomenon of the natural correlation itself, but for an assay that will identify it.  It is a diagnostic tool.  LabCorp’s patent required utilizing scientific principles in a medical treatment, and the creation of a process shaped by knowledge of a biological system.  Most diagnostic tools and pharmaceuticals take advantage of the workings of biological systems; one must understand the system in order to manipulate it.  It is unclear to me why this assay is different.  Now it is left to the lower courts to hash it out for awhile until the Supreme Court is ready to grant cert again.