BC Law IPTF Blog

Metacafe via Lifehacker:

Make a pair of noise-canceling headphones from a pair of sound-proof earmuffs (~ $20) and some old headphones.

The gist is you get the sound-proof earmuffs—think what people wear at shooting ranges—that are small and fold nice and compact, pop off the foam padding, then break apart your old, on-the-ear headphones, and pop the speakers right under the foam padding of the earmuffs. From the video, it looks great.

Problem is that it’s not “noise-canceling,” but it’s noise-reducing. The top noise-canceling headphones block out external noise but also use white noise to cancel out the noise that filters through. Furthermore, the quality of sound you get from your “new” headphones is limited to the sound of the old headphones you just tore apart. So, while it may fit the bill, you still might only get the bang for your buck.

So I decided to re-write the BCIPTF Publication Agreement. One of the barriers to publishing articles on our journal is the pedantic process of getting the darn agreement signed. Wouldn’t it be great—instead of mailing a hard copy of the agreement (or burdening an author with printing it out), getting a signature, getting it mailed back, counter-signing, then sending a copy back—if we could do it over e-mail?

Funny you should ask.

Generally a signature is any mark by which a signee intends to be bound. In the old days, it could be an “X” or even in modern days an incomprehensible scribble. It was generally used as a hedge in support of a statute of frauds claim. Written by hand, there are some evidentiary tactics one can use to authenticate a signature—but in an electronic age, what do we have?

First, it has to be understood that a contract with a “real” written signature isn’t self-authenticating. A signature does not a contract make. Even though I have my own fancy, idiosyncratic signature, if I sign a contract with my non-dominant hand and misspell my name, I can still make that contract binding.

Therefore, there’s really no difference between me writing an “X” and calling it a signature and typing my name out on an electronic document. In either case, under oath, I would have to say, yes, I did sign it and mean to be bound by the agreement.

But then we shift back into the real world. Do I really think that a name typed into a word processing document binds me to a contract I want to sneak out of? No way!

Well, maybe. Few things in life are in a vacuum. So leading up to the digital signing of that DOC or RTF file, there’s a chain of e-mails that comprise negotiations. Then in the contract we specify:

Section 9(a)(i)(B) [T]he Licensor e-mails the Digitally Signed Agreement to the Journal from the Licensor’s E-mail Address to the Journal’s E-mail Address, both specified below, and within the body of the e-mail message types “I, [Licensor’s name], hereby accept the attached Publication Agreement.”

There, we have quadruple authentication: a signature on the electronic document, a chain of e-mails leading to an e-mail with an acceptance, a second typed signature in an e-mail, and then an “authenticating” e-mail address. If there’s author metadata in the document, then that’s just a bonus.

Taking a look at ALR: In Cloud Corp. v. Hasbro, Inc., the Seventh Circuit court of appeals ruled that the sender’s name in an e-mail was sufficient as a signature. 314 F.3d 289, 49 U.C.C. Rep. Serv. 2d 413 (7th Cir. 2002). Similarly, the First Circuit ruled in Roger Edwards, LLC v. Fiddes & Son, Ltd. that a chain of business e-mails referencing an agreement satisfied the statute of frauds requirement in Maine. 245 F. Supp. 2d 251 (D. Me. 2003). Part of the reasoning behind courts’ acceptance of electronic signatures hearkens back to days when a typed signature on a telegram was held sufficient for a contract. See Shattuck v. Klotzbach, 2001 WL 1839720 (Mass. Super. 2001).

So maybe this isn’t the *perfect* way of creating a contract. But it has to be weighed with the need for expediency in the larger system. And, as a law journal and forum, isn’t it part of our job to test the waters and try new things to push the edge of legal thinking and processes? BCIPTF was the first law journal to be completely on-line. We have to continue this tradition of keeping new and current in the face of uncertainty.

Update on The MediaDefender Debacle:

The Pirate Bay (”TPB”) announce on its blog that it filed a criminal complaint against MediaDefender’s clients, including Universal Music Group, Sony, Paramount, and Twentieth Century Fox. The charges are “infrastructural sabotage, denial of service attacks, hacking and spamming, all of these on a commercial level.”

TPB tracked back IPs from fake torrents to IPs in the Gmail account they hacked earlier. They also found MediaDefender’s software that creates fake accounts and seeds fake torrents on sites like TPB. Sounds like TPB might actually have some valid claims, at least against MediaDefender.

This could really turn into an extremely interesting case. More to come…

I’ve always followed the typographer’s rule that you should only put one space after terminal punctuation, i.e., a single space after periods and the like. But in my legal writing attorney’s insist on two spaces because that’s the way it’s supposed to be done.

I finally got my copy of The Redbook: A Manual on Legal Style by Bryan A. Garner. Garner is the editor of the Black’s Law Dictionary and is becoming the expert and ombudsman on legal style. Lo and behold, here’s what Garner has to say on the issue in Section 4.12:

Use even forward-spacing in your documents: one space between words and one space after punctuation marks (including colons and periods).

The custom during the reign of the typewriter was to insert two spaces between sentences and after colons. The reason was that letters on a typewriter are monospaced… Continue the custom only if you use a typewriter or the Courier font.

Now what’s unclear is that Garner claims that “most word processors can automatically replace two spaces with one.” Does this mean that when you type two spaces, the word processor automatically replaces them with a single space? That doesn’t appear to be true—two spaces after a period creates more space than one space. I think he must be referring to a search-and-replace functionality.

Another personal victory: It seems like most lawyers I’ve worked with eschew using serial commas. Here, Garner agrees with Strunk & White in Section 1.3: “Use commas to separate words or phrases in a series of three or more, and include a comma before the conjunction.”

Yes. Axe? Ground.

A Federal District Court in Springfield, Mass. has given Mass MoCA permission to display unfinished works of Christoph Buchel. The artist had tried to prevent the museum from going forward with the scheduled exhibition under the Visual Artists Rights Act. As today’s New York Times decribes: Michael Posner ruled that VARA, which protects an artist’s right to not be named as author of a work that has been modified, did not block display of unfinished works simply because they are unfinished. Later in the article, the artist indicates that the works had been modified after he had stopped cooperating with the museum.

Mass MoCA had been exhibiting the work under tarps to wide criticism. Many believe than an artist should ultimately have the last word on when a work is ready for display, and this certainly seems to be the thrust of VARA.

Buchel’s large work was undoubtedly an expensive installation and largely missing from the Times’ analysis is the power dynamic between museums and artists. Mass MoCA certainly relied on the exhibition going forward in their plans for the year. Museums attract new members based on forthcoming shows and development directors would be in a difficult place if too much uncertaintly attached to that schedule. Budgeting and selections for other exhibitions require a museum to trust that an artist will remain committed to the project.

It’s a shame that the parties couldn’t come to a workable solution. Although they can now display Buchel’s work, with a notice that it is unfinished, Mass MoCA gains little from the win beyond a reputation for not respecting the artists it chooses to display.

Hackers recently intercepted e-mails and phone conversations from MediaDefender, a company that monitors torrent tracking sites and seeds fake content to discourage illegal downloading. They purportedly did this by tracking down a MediaDefender plant in a torrent forum by the user’s IP, obtained his password for the forum, and then tried that password on his Gmail account… And voila! They had access to his Gmail, to which he had forwarded his work e-mail.

(I wonder if betraying his password would violate the torrent forum’s TOS—and whether the user might have a claim against them for that. For example, he accepted the TOS which formed a contract between him and the forum owners, and if they promise to keep his password secure, then they breached the contract… Then, damages?)

The leaked e-mails and phone conversation (the latter, a separate hack) revealed which sites MediaDefender “policed” and some conversations they had with the NY Attorney General’s Office about aiding the AGO with a child porn investigation. (Yes, more child porn on this blog.) Ironically, in the phone call with the AGO, MediaDefender stressed how secure their services were given the highly sensitive nature of the AGO investigation.

On top of it all, there’s evidence that MediaDefender created a fake torrent site, a “honeypot,” named MiiVi to lure and trap torrent users (from an ArsTechnica post):

A web site called MiiVi allegedly offered full-length motion pictures for download and offered to install special client software on the user’s computer to help speed up the downloads. However, the software did a little more than that: it also reportedly performed searches of the user’s computer for other illegal software and reported its findings back to MediaDefender. Acting on a tip from The Pirate Bay, the online publication ZeroPaid began an “investigation” (a followup to Torrent Freak’s article) and found that MediaDefender didn’t make much of an effort to hide who was behind MiiVi. The whois records for MiiVi were clearly registered to MediaDefender with the company’s address in California and administrative contact information within the company.

In reaction to this shit-storm, MediaDefender has sent cease and desists to at least MegaNova and isoHunt, to which they’ve responded derisively. From the ArsTechnica article:

[T]he isoHunt administrator says that the he will comply with the request if it is properly submitted. “Despite us being located in Canada, if you do actually figure out how to compose a valid DMCA notice, we will honor it,” he concedes, “just as soon as we’re done laughing at you.”  

“Dearest little asstunnels, Let me start off by thanking you for your pitiful attempt to have your e-mails removed from the entire internet,” Meganova’s response says. “In case you haven’t noticed, this site is located in Europe (I hope you can point it out on a map) where your stupid copyright claims have no base. But fair is fair you guys did suffer over the past week so here’s bit of advice to you guys: F*** you! F*** you again! F*** you again and again and again!”

Furthermore, MediaDefender has written to sites that have published the list of torrent sites they’ve been targeting, bullying them into removing the list.

Gotta love the drama. And asstunnels.

Lifehack.org has an interesting post on Taking Notes that Work. Probably pretty applicable for law school students.

I think a lot of people, students and professionals alike, attempt to capture a complete record of a lecture, book, or meeting in their notes — to create, in effect, minutes. This is a recipe for failure. Trying to get every last fact and figure down like that leaves no room for thinking about what you’re writing and how it fits together.

I’m going to try the first bit which generally says to just focus on the new stuff you’re learning; don’t write down the stuff you already know.

Your focus while taking notes should be two-fold. First, what’s new to you? There’s no point in writing down facts you already know. If you already know the Declaration of Independence was written and signed in 1776, there’s no reason to write that down. Anything you know you know you can leave out of your notes.

This is an old question, but deserving an occasional update:

The Manual of Patent Examining Procedure (“MPEP”) defines a product-by-process claim as “a product claim that defines the claimed product in terms of the process by which it is made . . .” Manual of Patent Examining Procedure (MPEP) § 2173.05(p).  Product-by-process claims were originally limited to circumstances where the product could not be described or distinguished from prior art solely in structural terms, but required reference to the process by which the product was made.  This principle was called “Painter’s Necessity Rule.”  In re Painter.  Today, however, the patent office no longer applies “Painter’s necessity rule” and issues product-by-process claims even where the applicant is able to describe and distinguish the invention solely in terms of composition or structure.  In re Hughes (permitted product-by-process claims even though applicant could describe the invention in structural terms); see also MPEP § 2173.05(p). 

Some district courts have approached analysis of product-by-process claims in infringement suits by explicitly following either Scripps Clinic & Research Foundation  v. Genentech, Inc., or Atlantic Thermoplastics Co. v. Faytex Corp..  A Scripps interpretation fails to limit a product-by-process claim by the process steps, and may render a competitor’s very similar product made by a different process an infringing product.  An Atlantic Thermoplastics interpretation would limit a patented product to the process described in the claim, thus distinguishing a competing noninfringing product from the patented product.  Judge Newman in her dissents states that it is most useful to focus on the facts of the case to determine whether the process limits the process in a product-by-process claim.  See Atlantic Thermoplastics Co., Inc., (Newman, dissenting).  The claims in Scripps were directed to a product that was new and unobvious, and because of its structural complexity, required definition in process terms.  See Scripps Clinic & Research Found.. To Judge Newman, the Scripps claims constituted “true product-by-process claims.”  Atlantic Thermoplastics Co., Inc..  

In contrast, claims similar to those in Atlantic Thermoplastics tend to be directed to relatively simple products that are capable of compositional or structural definition.  See Atlantic Thermoplastics Co., Inc.. Judge Newman refers to this class of claims where the product is old or readily described in structural terms but the process is new as “product of the process claims”.  Atlantic Thermoplastics Co., Inc..  Such products are not properly claimed using the product-by-process format, and thus should be infringed only when an identical or equivalent process is used.  Essentially, Judge Newman’s arguments bring Painter’s necessity rule back into the twenty-first century to apply it to the infringement context.                         

An alternative strategy that can be used independently to avoid choosing between Scripps and Atlantic Thermoplastics, or to support choice of precedent described supra, is to follow the quintessential case on modern claim construction, Phillips v. AWH Corp., and apply traditional construction techniques to product-by-process claims.  Traditional construction techniques involve referring to the specification and prosecution history to interpret patent claims.  For example, the court in Cryovac Inc. v. Pechiney Plastic Packaging, Inc., noted the dissonance in Federal Circuit precedent regarding infringement of product-by-process claims, and instead applied Phillips to find that “[T]he determination of whether the process is properly viewed as a limitation is a context-specific inquiry . . . whether [the claim] contains a product-by-process limitation or not, must be construed in light of the specification.”  The Court found that packing material made from layers oriented coextruded film was limited to the product as accomplished by a racking or blowing process, because the blowing process was described in the specification – both general description and examples - of the patent.    

In addition to the specification, Phillips directs the court and parties to examine the prosecution history of the patent to determine the definition of product-by-process claim terms.  If an applicant points to or adds process limitations to support novelty or nonobviousness or to distinguish prior art, such limitations “act as a limit on the claim for purposes of infringement analysis.”  Kennametal, Inc. v. Cerametal S.A.R.L..  For example, the patent claims in Kennametal, Inc. v. Cerametal S.A.R.L., which were directed to high pressure water jet nozzles, were originally rejected by the Examiner as anticipated by prior art.  In response to the rejection, the patentee amended the claims referring to “a high pressure injection nozzle member” to add the process language “formed by liquid phase sintering without imparting external pressure”.  The patentee stated that the amended claims were not anticipated by prior art because the prior art failed to teach the sintering process without the pressure.  The court recognized that the patentee “inserted the process language specifically to avoid the prior art,” and emphasized that “‘if claim scope is relinquished during prosecution on grounds of patentability, the doctrine of prosecution history estoppel provides that the relinquished scope can not (sic) be recovered’ in an infringement action.”              

These specification and prosecution history arguments may not only independently demonstrate that process steps limit its product claims, but also provide support for following Atlantic Thermoplastics and not Scripps.  For example, if a patent owner is able to analyze the composition and structure of the two competing products in order to bring an infringement suit, then is should not need to resort to the production process to support patentability and infringement.  In that case, the patent owner’s claim may more properly be described as a “product of the process claim” instead of a “true product-by-process claim,” evoking Atlantic Thermoplastics and eliminating Scripps as appropriate precedent to follow.

On Friday, the House endorsed a bill encompassing some of the most significant changes in patent law in the last 50 years.  One of these changes defines “inventorship” of a patent as the first person or group to file the patent application, as opposed to the current practice of giving inventorship to the first person or group to “invent”.  The patent systems of most other countries grant patents to the first person/group to file the application.

Thus, it is said that this change to the first to file standard will bring the US patent system into harmony with that of the international community.  Foreign inventors will have less of a disadvantage in filing American patent applications.  Further, there is no problem of evidence or proof of inventorship that is experienced in the first to invent system.  Currently, the PTO and courts must expend time and other resources tracking evidence of parties who argue about who invented something first, right down to the question of what “invent” even means (first to conceive of the idea, first to reduce to practice, etc). 

However, independent inventors may find themselves at a disadvantage in this first to file system.  They do not have the resources or legal departments that big companies have, and thus may be slower to file applications than their counterparts.  Thus, the first people that have an idea and carry it through may not be the same people who are granted the patent.  In fact, many people argue that the new system will make it easier to claim (or steal) someone else’s ideas. 

Particularly in the United States, where independence and individuality are valued highly, this might be a tough change to swallow.  On the flipside though, this change to first to file will have the effect of giving the public the benefit of the invention faster.

I’ve decided to give the Apple iWork Pages ‘08 a fair shake in the word processor wars. It’s taking me a bit to get used to it. But my first impression of the cleanliness of the interface and the way it aesthetically “fits in” with the Mac environment assisted my persistence with the new world. (The biggest thing, immediately, was that it “knew” how to size the page and text to my 12″ Powerbook screen. Word always felt a bit uncomfortable: Was the page screen in the middle of the screen or to the left? Normal view or Page view? Zoom at 115% or 135%? Things like that.)

Let’s start by saying that it’s been about a month, and I’m still using it in lieu of Microsoft Word.

There’s no default font setting in Pages. So if you want all your documents to *not* use Helvetica 12-pt, then you have to create a new “Blank” template. (My font is Georgia 11-pt, for the record.) I can handle that.

You create shortcut keys for special characters in the Preferences… menu option. For example, in Word I’d map option-6 to the “section” symbol; option-shift-p to the “pi” symbol for “plaintiff,” etc. In Pages, I map things differently. Instead of key combinations, I use typed macros: “-s” for section, -pp for pi. Fine.

What kills me is that two dashes doesn’t auto-correct to an em-dash without a trailing space in Pages. (”Dash dash space” instead of just “dash dash.”) And when I insert mathematical symbols, the leading gets screwed up. And the bullet schemes are weird; I like the Word filled bullet on level one, then hollow bullet on level two. And their nice thick bullets, not the anemic ones that Pages uses.

But there are smart things in Pages. (Like the many more smart things in Numbers, the Excel rival.) I just tried a spell-check. In Pages, it’s called Proofread. And you know what it proofread for me? It told me that “prior to” is too wordy, and I should just use “before.” Ah, proofreading only a lawyer can love! And then it told me that I should limit my usage of the word “input” to computer and other technical uses. Kind of groovy, if you ask me. It’s the touch of an actual editor and proofreader, and not just some linguistically brute-force algorithm that makes vague suggestions insulting your style a la Word.

And so I’ll continue to plug away with Pages. Hopefully I don’t get stuck with Betamax on this one.