Creative Control at Mass MoCA

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.

first to invent vs. first to file

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.

Patent Local Rules

Local rules for patent cases have become all the rage these days.  It all started with the Northern District of California, followed by the Southern District of California, Eastern District of Texas, and the Northern District of Georgia, amongst others.  Some judges in jurisdictions without local rules have even adopted very similar sets of rules for their own use. 

These rules all have common features.  They require early disclosures of Preliminary Infringement Contentions and Preliminary Invalidity Contentions, together with supporting documents.  They require parties to set out a schedule at the Rule 26 conference, deciding the course of claim construction.  Parties must exchange lists of terms to be construed, preliminary constructions, and then submit a joint claim construction statement.  Construction briefs must be written.  Finally, the claim construction hearing (or “Markman Hearing”) is held, where the judge hears both parties’ constructions and supporting evidence, and finally decides on the construction to be used for the rest of the litigation.

The advantage of these patent local rules is that they set deadlines for the completion of claim construction discovery and the hearing, thus pushing the cases along the court docket.  Parties can focus early on what terms they need to research and construe, and what interpretations will work best for their arguments.  Early disclosure ensures cooperation in these endeavors.  Jurisdictions with these patent local rules are thus popular with plaintiffs who want resolution quickly.

However, patent local rules have been criticized because they may focus the issues too early, before the parties ( and the judge) really know what is at stake.  Rules that do not allow changes in construction after preliminary exchanges may be too rigid as parties realize later in the case that they missed important issues.  Further, many of these procedural events occur before the judge is able to comprehend technology involved.  For this, many have recommended neutral tutorial sessions for the judge, or assistance of Special Masters to help the judge learn the technology or science involved in the case.

The Boston Globe recently ran an article by Sacha Pfeiffer regarding the possibility of drafting patent local rules for D. Mass..  Judge Stearns gave positive comments, and a few other judges have responded positively.  The current President of the BPLA, Lee Bromberg, said that applying patent local rules in D. Mass. would make the jurisdiction more attractive for plaintiffs, lowering costs of litigation for local businesses (particularly some of the smaller biotech companies), and also boost business for local hotels, restaurants, law firms, and support as more people come to litigate.  Just look what making patent litigation more attractive did for E.D. Tex.!  It will be an interesting story to follow as rules are drafted and tried out by the D. Mass. judges.      

Judge Awards $102 M in Civil Damages Against FBI

Judge Nancy Gertner scathingly rebuked the FBI for its illegal and unjust activity in convicting four men for a murder they didn’t commit. The criminal charges were overturned six years ago; this is the civil side of the picture. Their appeals largely hinged upon the fact that a brutal hit-man turned FBI informant, Joey “the Animal” Barboza, framed them for the killing.

Unfortunately, two of the men, Tameleo and Greco, died in prison. The other two, Salvati and Limone, spent more than 30 years in prison.

Yes, I agree that the FBI should be punished for their blatant disregard for the law some 30 years ago. But I resent that these four men are portrayed as wronged “innocents.” They were all part of the Cosa Nostra gangland in Boston. They came in with dirty hands. Perhaps one or two of them were mere hangers-on, lowlife peons, but Tameleo was reputedly consigliere of the New England mob, and Limone was a Boston leader.

And, on a side note, the WBUR reporter, Fred Thys, is a graduate of my alma mater, Williams College. Hurrah!

WTS Epic Mount

Let’s not make this a trend, but here’s another sex-related IPTF story. Yes, the infamous WTS (“Willing to Sell”) Epic Mount story.

Now, in the MMORPG World of Warcraft players of a certain level can earn “mounts” or animals they can ride so they look cool and move faster in the virtual world. Problem is, they’re hard to come by–they’re extremely expensive. So a presumably female WOW player posted on Cragslist, offering to sell her “services” for an hour for 5000 gold. (Today, 5000 gold could cost around US $685.) An epic mount for an “epic” mount, get it? Haha. Hahaha.

So the next obvious question after “Isn’t this illegal?” is “Is this a taxable transaction?” Here’s a Howstuffworks article about taxation of virtual assets.

Supreme Court Opinion Links to Online Video

As the American Bar Association Journal eReport e-reports, the Supreme Court in Scott v. Harris refers to the URL of an online video of evidence from the case. The Supreme Court web site also hosts this video.

In a footnote to the opinion:

JUSTICE STEVENS suggests that our reaction to the videotape is somehow idiosyncratic, and seems to believe we are misrepresenting its contents. See post, at 4 (dissenting opinion) (“In sum, the factual statements by the Court of Appeals quoted by the Court . . . were entirely accurate”). We are happy to allow the videotape to speak for itself. See Record 36, Exh. A, available at http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb and in Clerk of Court’s case file.

Scott v. Harris, 550 U.S. ___, at 5 n.5 (2007).

Further, from the ABA report:

A lone dissent by Justice John Paul Stevens said the case [Scott v. Harris] should have gone to a jury for decision. “The court has usurped the jury’s fact-finding function,” he wrote, since “whether a person’s actions have risen to a level warranting deadly force is a question of fact best reserved for a jury.”

Stevens challenged the majority’s interpretation of what the video shows, and he referred to his fellow justices as “my colleagues on the jury.”

(See, also, SCOTUSblog for a more substantive look at the decision.)

I’m wondering what technical infrastructure the Supreme Court web site has in place to start hosting video or other electronic content in the future. It seems fairly ad hoc at the moment. If you look at the file structure for serving the opinions, it looks like this:

http://www.supremecourtus.gov/opinions/06pdf/05-1631.pdf

So all the opinions go into the “opinions” directory, and the PDF versions from 2006 go into the “06pdf” directory. Then the file is identified by the Supreme Court numbering system (“05-1631.pdf”).

On the other hand, the videos go into a “video” directory, with the filename as the case name:

http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb

This shows that the sysadmin is OK with the “video” directory just being a flat index of video by case name (and not the unique Supreme Court number), most likely meaning that they don’t plan on putting that many videos there in the first place. This means that this is a “one off” kind of thing with plans to add some video in the future, but not much. Furthermore, the naming convention only assumes one video per case.

So while the addition of a video URL may be interesting, they apparently don’t plan on doing much of the same in the future. If they did, then they should really change their file structure and naming systems to scale into the future.

As a quick suggestion, scalability is simple enough:

/opinions/06video/05-1631-01.rmvb

Better yet, as I prefer semantic filenames over “code” and non-proprietary formats, it *should* be

/opinions/06/video/scott-v-harris-05-1631-01-car-crash.avi

The Much Anticipated KSR Decision Is Finally Here

Today SCOTUS finally handed down its decision in KSR v. Teleflex and weighed in on the nonobviousness standard. Writing for a unanimous Court, Justice Kennedy, as expected, rejected the Federal Circuit’s current test for nonobviousness – whether there was a teaching, suggestion, or motivation (TSM) to combine prior art references. The TSM test does provide helpful insights into the nonobvious inquiry, however, that does not demand the application of a narrow and rigid standard. Under the new standard the court must determine whether the is more than a predictable use of the prior art elements according to their established functions. Just a preliminary post. More to come.

Openness and Sudoku

The New York Times is running an article on the man and the company behind sudoku. Interestingly, the brain power behind sudoku, Mr. Kaji, wasn’t able to make much money because he didn’t trademark the name “sudoku,” but because the IP wasn’t protected he feels that popularity of the game exploded:

While no one knows how much revenue is generated by the global sudoku business, most agree it has easily topped $250 million over the last two years from an estimated 80 million devotees. The New York Times syndicate provides a variety of logic puzzles, including sudoku, kakuro and others, for newspapers and Web sites around the world.

Nikoli received only a sliver of that money. Mr. Kaji says his private company, with just 20 employees, had annual sales of about $4 million.

Sudoku’s popularity in the United States caught Mr. Kaji by such surprise that he did not try to get the trademark there until it was too late. As a result, Nikoli receives no royalties from sudoku-related sales overseas by other publishers.

In hindsight, though, he now thinks that oversight was a brilliant mistake. The fact that no one controlled sudoku’s intellectual property rights let the game’s popularity grow unfettered, Mr. Kaji says. Nikoli does not plan to trademark other new games, either, in hopes this will also help them take off.

“This openness is more in keeping with Nikoli’s open culture,” said Mr. Kaji, who sat on a sofa in his Tokyo office among pillows adorned with printed faces of racehorses. “We’re prolific because we do it for the love of games, not for the money.”

While this might just be a good marketing face to show, it’s core aligns with the philosophy of open source, copyleft, GNU, etc. If you don’t control the IP, a product has a chance to explode. If you do it for the love of the product, then maybe your reward will be greater in the end.

Wikipedia to Seek Proof of Credentials – But Why?

Wikipedia to seek proof of credentials – Yahoo! News

But anonymity is also considered one of the main forces behind Wikipedia’s astonishing growth, to nearly 1.7 million articles in English and millions more in dozens of other languages. Wales has said he is an “anti-credentialist” — because anonymity puts a reader’s attention on the substance of what people have written rather than who they are.

Wales said Wednesday that belief is unchanged. But, he said, if people want to claim expertise on Wikipedia, they ought to be prompted to prove it. If they don’t want to give their real names, they shouldn’t be allowed to tout credentials. Had that policy been in place, Wales said, Jordan probably would not have gotten away with claiming a Ph.D. in religion.

This is, whether purposeful or not, a cue taken from Citizendium.

But for a different reason. Honesty and credibility, somewhat paradoxically, is encouraged through anonymity because anonymity means that you aren’t liable for what you think is right and you’re more likely to contribute *anything* rather than your *best*.

This is why blogging is more widespread than essay-writing for magazines. When people blog, they are trying to write things they believe or would stand by in a casual conversation, but they don’t want to be held to the same standard they’d be held by if they were writing for, say, the New Yorker.

Furthermore, the lack of a login requirement and an attribution makes it real easy for me to just hop on and fix something or add something or make a new page. I don’t have to go through any embarrassing

On the other hand Citizendium looks to attribution for credibility and honesty. I wonder if this will discourage participation in the opposite way that anonymity encourages it on Wikipedia.

Virtual Terrorism – the Second Life Liberation Army

From the web site of the Second Life Liberation Army :

The Second Life Liberation Army (SLLA) was formed as the ‘in-world’ military wing of a national liberation movement within Second Life. The movement contends that univeral suffrage is a right that should be established within Second Life immediately. As Linden Labs is functioning as an authoritarian government the only appropriate response is to fight. To this end the political movement has dissolved itself and handed over interim power to the SLLA Army council headed by it Chief of Staff. When the SLLA succeeds in its aims it will disband and hand power back to the political wing of the movement. For the time being all military decisions will be taken by the SLLA Chief of Staff and implemented by SLLA fighters.

The SLLA has been exploding “push guns” or virtual bomb blasts that temporarily cloud over the screen so that you can’t see your avatars or anything around them.

From a story on this from the AFP, one of their major demands is for Second Life’s developer, Linden Labs, to go public and allow users to buy shares of stock–claiming this as a “basic right” of Second Lifers.

Is rebellion the same as terrorism? How about on Second Life, where violence has been technologically curbed? In the absence of courts, in a virtual world controlled by a private company, how can virtual citizens demand their rights, especially if they’re in a minority?

Apparently, there was an attempt to establish courts–the Second Life Superior Court–but I haven’t been following this enough to see if there has been anything established.  The blog post linked above is over a year old, and it’s the only mention of it from a Google search, so maybe it’s defunct.