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I've already highlighted a couple of public comments from those filed with the FTC by companies being harassed by trolls, describing just how destructive they think they are, like Barnes & Noble's and Google/Red Hat's. Now let's take a look at what the trolls have to say in their defense.
Wait. It seems their feelings get hurt if you call them trolls. IPNav tells the FTC it's "pejorative". Barnes & Noble in its comments uses the word troll throughout, and Newegg in its comments [PDF] said the word is a perfect fit, absolutely descriptive of how they act (see next article). The FTC calls them PAEs. I'll stick with Barnes & Noble and Newegg on this one, if you don't mind.
We'll be reading the comments from IPNav [PDF], which claims to be a "white hat" troll, as well as a snip from MOSAID [PDF], which also claims to be one of the good guys. They feel they are misunderstood. It is in a deal with Nokia and Microsoft to go after people with their sorta donated patents, so you might wonder what Microsoft has to say. In a nutshell, it says [PDF] it wouldn't want the PAE business model shut down. *That's* not the problem. Noooo.
My latest Locus column, "Improving Book Publicity in the 21st Century," addresses the lack of automation and management in traditional publishing an publicity, and suggests some simple and cheap ways that publishers could join up the way its editorial, marketing a PR departments communicate with reviewers and other publicity outlets to save money and score more PR for their writers.
Right now, this stuff all lives in separate word-processing files and spreadsheets in different departments’ hands, which results in all sorts of bizarre occurrences that I see firsthand.
There’s the trilogy whose first volume I blurbed, and whose first two volumes I glowingly reviewed – and I sold a ton of each. The publisher didn’t send me book three for review, even though it had a quote of mine on the front cover, the back cover, and the jacket-flap. They didn’t even tell me it was out – by the time I saw it in a store, it had been out for a month, and my review showed up weeks after the book’s publicity push was over.
I know how that happened: the cover quotes came from editorial and were sent to marketing, which had them in a word-processing document. When PR brainstormed people to send review copies to, they forgot to include me, so it fell through the cracks.
There’s the graphic novel series, now in up to something like 17 volumes. I’ve given every book a positive review, and all the new volumes have quotes from me on the cover. I never get review copies of this one – I don’t even get a notice from the PR department when a new volume is out. But the same PR department has sent me something like nine volumes of another series, none of which I’ve ever reviewed. If I don’t review book one, that means I either didn’t like it, or didn’t even bother with it because it looked so unpromising. Having skipped book one, you can be certain I won’t review book two. This same publisher sends me mountains of single-issue comics, even though I’ve never reviewed one of those.
Two new volumes relating to intellectual property are now available.
1) The United States’ annual Special 301 report, a charade of evaluation of intellectual property enforcement, was released on May 1. (As I have written before, this process has no international validity.) For those interested, in this year’s report Canada has moved up one level on the scale of American disgrace; we are on the ”Watch List” instead of our previous standing of “Priority Watch List.”
The American government is pleased with Canada’s Copyright Modernization Act (replete as it was with protection from circumvention of digital locks) and the introduction of legislation “to strengthen IPR enforcement, which included provisions that would provide ex officio authority to Canadian customs officials to seize pirated and counterfeit goods at the border (p.46)”. However, concerns still exist with respect to Canadian patenting practices, including “the impact of the heightened utility requirements for patents that Canadian courts have been adopting recently (p.46).” (I wrote about our courts’ reluctance to uphold a patent that did not live up to expectations; see here.)
2) Much more interesting is the release of a new book by University of Ottawa Press. The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law is available for purchase and for free download via a Creative Commons license. Michael Geist served as editor; he envisioned the collection and ensured its realization. The book features Geist’s work along with contributions from thirteen other scholars, including me (see here for some details). It was a pleasure to participate in such a well-executed project. Congratulations must go to Geist and his entire team of students, editors, reviewers and the staff at University of Ottawa Press.
- The use of social means to engage in defamation is nothing new. Indeed, defamation requires the very social element of publication. Social media - Facebook pages or posts, tweets, blogs and online comments - merely make defamation easier and more pervasive. Canadian courts have struggled to balance the interests of free ...
The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright
Copyright cases typically only reach the Supreme Court of Canada once every few years, ensuring that each case is carefully parsed and analyzed. As readers of this blog know, on July 12, 2012, the Supreme Court issued rulings on five copyright cases in a single day, an unprecedented tally that shook the very foundations of copyright law in Canada. In fact, with the decisions coming just weeks after the Canadian government passed long-awaited copyright reform legislation, Canadian copyright law experienced a seismic shift that will take years to sort out.
I am delighted to report that this week the University of Ottawa Press published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law,
an effort by many of Canada's leading copyright scholars to begin the
process of examining the long-term implications of the copyright
pentalogy. The book is available for purchase and is also available as a
free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually.
This is the first of a new collection from the UOP on law, technology
and society (I am pleased to serve as the collection editor) that will
be part of the UOP's open access collection.
This book features fourteen articles on copyright written by independent
scholars from coast to coast. The diversity of contributors provides a
rich view the copyright pentalogy, with analysis of the standard of
review of copyright decisions, fair dealing, technological neutrality,
the scope of copyright law, and the implications of the decisions for
copyright collective management.
While I am honoured to have served as editor (and to contribute my own work on the shift from fair dealing to fair use in Canada), each contributor was granted total freedom to address whatever aspects of the decisions they saw fit. There was no editorial attempt to prescribe a particular outcome or perspective. Indeed, the contributors differ in their views of the decisions and their support for the Courtâs analysis and conclusions.
Contributions are grouped into five parts. Part one features three chapters on standard of review and the courts. Part two examines the fair dealing implications of the copyright pentalogy, with five chapters on the evolution of fair dealing and its likely interpretation in the years ahead. Part three contains two chapters on technological neutrality, which the Court established as a foundational principle of copyright law. The scope of copyright is assessed in part four with two chapters that canvass the exclusive rights under the copyright and the establishment of new "right" associated with user generated content. Part five features two chapters on copyright collective management and its future in the aftermath of the Courtâs decisions. I'll be writing more about the individual contributions in the days ahead and will provide more information on the plans for a conference on the copyright pentalogy being planned for the fall.
Thank you, Chair.
Hello to all the members of the committee.
It is a pleasure to be here today.
I see that time is flying by. A lot of work was done this past year. I would like to bring you up to speed on that work and on the Department of Industry's priorities. We can obviously talk about the measures that will follow from economic action plan 2013.
The issues concern, first, strengthening the manufacturing sector; second, stimulating business innovation; third, promoting entrepreneurship and venture capital; fourth, improving market frameworks; and, fifth, supporting the digital economy. That has been adopted and it is ongoing. Work is under way. I will be pleased to give you more details on that.
I am here with my Deputy Minister John Knubley, Ms. Bincoletto, who is Chief Financial Officer at the Department of Industry, Ms. Thivièrge and Mr. Stewart. Feel free to ask us questions. We have the necessary people to answer them. We will do it to the best of our ability.
Mr. Chair, after several consecutive years of uneven economic growth, the entire world is still at a crossroads. As the government, we will continue our efforts to navigate this turbulent global situation and to promote job creation, economic growth and long-term prosperity for Canada.
Our efforts have produced results. No fewer than 465,000 jobs have been created, exceeding the peak reached before the recession. That has been the strongest employment growth of the G7 countries during this crisis. In addition, Canada's real GDP is well above pre-recession levels. This is the best performance in the G7.
We will continue investing in growth drivers, job creation, innovation, investment and skills. We remain determined to keep taxes low—which will probably not displease my colleague here on my left—and return to a balanced budget.
In terms of today's meeting, Industry Canada will be allocated $1.16 billion through main estimates in 2013-14, which will directly support our jobs and growth agenda. In addition, subject to the will of Parliament, Industry Canada and the industry portfolio will implement measures put forward in economic action plan 2013 and associated priorities.
One of Industry Canada's priorities is to help manufacturers succeed in the global economy. Let's note that manufacturing accounts for 1.1 million jobs across Canada, generates 13% of the Canadian GDP, and conducts almost half of the R and D performed in Canada. Key areas I will highlight include the automotive, aerospace and space sectors, defence procurement, and advanced manufacturing.
As you remember, Prime Minister Harper announced last January an additional $250 million over five years for the automotive innovation fund.
In March, our economic action plan announced ongoing funding to sustain and improve the strategic aerospace and defence initiative, with $110 million over four years to create an aerospace technology demonstration program, and forthcoming consultations on the creation of a national aerospace research and technology network. These measures would strengthen Canada's position as a global leader in the production of aerospace and space goods and services.
Our economic action plan 2013 also committed to reform the current procurement process, develop key industrial capabilities, and consider ways to target industrial and regional benefits. These actions will promote export opportunities and help ensure that all major procurements include a plan for Canadian industry participation.
Industry Canada will also work with the Federal Economic Development Agency for Southern Ontario in order to develop world-class manufacturing initiatives, supported through a five-year program beginning in 2014, for an amount of $200 million.
The government's venture capital action plan was announced in economic action plan 2013. It is a set of measures designed to enhance promotion of the Canadian venture capital system. Funding of $60 million over five years will be allocated to support business incubators and accelerators and to expand their services. In addition, $18 million over two years will be allocated to the Canadian Youth Business Foundation to support our young entrepreneurs. The Business Development Bank of Canada will also be making additional investments in firms graduating from business accelerators and will establish new entrepreneurship awards. Businesses, in many cases, suffer shortages when they start up. Some projects are squeezed. This form of funding will therefore be accessible to our businesses.
Innovation is an important factor that we continue to enhance in order to promote growth, improve productivity and raise our standard of living.
Last year, I told the committee that Minister of State Goodyear was directing work on our response to the recommendations made by Tom Jenkins's expert panel. We have acted on those recommendations. In budget 2012, we committed to paying $1.1 billion over five years to double support, for example, for the IRAP, the industrial research assistance program, to make the business-led networks of centres of excellence program permanent and to recentre the mandate of the National Research Council in order to focus it on demand and to make it more business-oriented.
In action plan 2013, we have also announced additional support in this field in the form of funding for our granting councils, such as the NRC and Genome Canada. I know that you have looked at that in greater detail with Minister Goodyear.
Another major priority, in addition to keeping taxes low, cutting red tape, and promoting fair tariff trade, is strengthening our marketplace framework policies, which set the conditions for companies to compete, innovate, and invest. We also introduced changes to our investment review process, including guidelines for state-owned enterprises, timelines for national security reviews, and the threshold reviews under the Investment Canada Act.
Following the passage of the Copyright Modernization Act last year, we are continuing to improve our intellectual property protections. We recently introduced, as you know, the combatting counterfeit products act.
It is still important to promote a world-class digital economy. In the next stages, we want our future innovation to be driven by digital technologies in order to support this digital economy and make Canada a digital leader. We have taken several essential measures such as adding a digital component to the NRC and refocusing the mandate of the Business Development Bank of Canada. A digital technology adoption program is now offered through BDC. The 700 MHz spectrum auction, which will be held by the end of the year, will stimulate a lot of activity in the digital economy.
I am determined to move forward with these measures and issues, to examine ways to strengthen the digital economy, support digital skills, encourage technology adoption by business and promote access for Canadians. I know the committee is currently examining this question, and I will be delighted to review the work it does.
Mr. Chair, I believe that, by focusing on the priorities I have outlined here today, Industry Canada and the government will help enhance competitiveness and support our government's goal, which is to create jobs and stimulate growth for all Canadians.
Judge Lucy Koh has reached a decision [PDF] on going forward on the retrial on damages in Apple v. Samsung. Trial is set now for November 12th, on damages only, same Daubert rulings, motions in limine, discovery disputes, and evidentiary objections ruled on the same as the first trial, meaning if she made mistakes in the first trial, they'll be repeated in the retrial. "The parties may not relitigate these issues," she writes. So it's all for the appeal court to figure out. She isn't interested in reviewing all that. So if the appeals court orders a third trial, that's the way it will have to be. She wants to keep the damages retrial short and sweet and limited to just one issue, and then send it on its way to appeal, so no new theories and no new fact discovery. There is a schedule for expert discovery. The jury will be 8 people, with the parties' given three peremptory challenges each. Apple asked for the very same jury instructions, but she says they will get together on October 17th to discuss "how to present infringement and validity findings" to the new jury. Other than that, she is silent on that point.
There is one proviso. If the USPTO does not reopen the reexaminations on the two Apple patents that so far it has found invalid, then Samsung can submit a new motion asking for a stay, but that's only meaningful if the USPTO acts faster than the trial. If not, the damages issues will include the currently invalided patents. No, I can't explain the logic. I'm like Alice in WonderLand watching this.
It's mostly tilting Apple's way at the moment, with a Hail Mary pass possible for Samsung, if certain milestones at the USPTO happen quickly enough. As I've told you many times, US patent law favors patent holders, not defendants. That's one reason trolls can do what they do, bully victims into paying up rather than risking the uncertain outcomes of expensive trials that can illogically go against you even when the trial centers on stupid patents that shouldn't have issued in the first place, because once issued there is a presumption the patent is valid. Even if you win at trial and the patent is invalidated or the jury decides you didn't infringe, nobody pays you back all the millions you've spent defending yourself. Your US patent law at work. How do you like it?
Posted by Robert Kyncl, Vice President, Global Head of Content Partnerships for YouTube & Susan Molinari, Vice President, Public Policy and Government Relations
Video plays a powerful role in bringing us closer together, especially when it connects people in real time. By transcending borders, empowering citizens, and increasing transparency, it’s one of the many ways technology allows democracy to thrive. Starting this week, all members of the U.S. Congress will have the opportunity to access enhanced features on their YouTube channels, including the ability to live stream video.
Live video is already allowing elected officials and their constituents to reach one another in innovative ways. Thousands tuned in to YouTube to watch the president’s State of the Union address and the corresponding Republican response this February. Engagement is growing across many types of platforms — Google+ Hangouts, for example, have sparked face-to-face conversations on topics ranging from gun control to the national economy and have allowed people on the other side of the world to share their stories at Congressional hearings.
If you’re a member of Congress and would like to know more, check out these Dear Colleague letters issued by the House and Senate. Whether it’s to share a look into your daily work, broadcast speeches and meetings, or showcase events in your state or district, we can’t wait to see how you connect with your constituents.
InfoJustice.org posted a brief note about a lawsuit underway in India; one which pits international publishers against a photocopy service at Delhi University. The complaint, filed in 2012 and now being heard in the courts, concerns the compilation and distribution of course packs. “This lawsuit sent shock waves across the academic community, leading more than 300 authors and academics including famed Nobel laureate Professor Amartya Sen to protest this copyright aggression in an open letter to publishers.”
In “Why students need the right to copy,” published by The Hindu, Shamnad Basheer writes: “What makes the lawsuit particularly egregious is the fact that publishers are effectively seeking an outright ban on all course packs, even those that extract and use no more than 10 per cent of the copyrighted book.” Basheer, a prominent intellectual property scholar, is keenly aware that such use would be considered legitimate in the United States and that Indian law offers even wider latitude for unauthorized uses of copyrighted works for educational needs:
… unlike the U.S., [Indian law] embodies a separate exception, under which it is perfectly legal to reproduce any copyrighted work during the course of educational instruction. These exceptions reflect a clear Parliamentary intention to exempt core aspects of education from the private sphere of copyright infringement. Eviscerating these exceptions at the behest of publishers will strike at the very heart of our constitutional guarantee of a fundamental right to education for all.
Noting that the publishers have dangled the offer of collective licensing to Indian educational institutions, Basheer is emphatic that this is a bad idea. He points to Canadian misfortune in this area; he indicates that the costs and administrative burdens inherent to licensing are unnecessary when a suitable educational exemption is available under the law.
Basheer also comments upon the paucity of material available for the Indian market:
That a majority of educational textbooks are priced above the affordability range of an average Indian student is well known. A recent empirical study done by me along with my students reveals that a vast majority of popular legal and social science titles have no corresponding Indian editions and need to be purchased at rates equivalent to or higher than in the West… (emphasis mine)
The Indian court is aware of the public interest implicated by this case and has permitted a students’ association to be party to the suit. The Association of Students for Equitable Access to Knowledge (ASEAK) expressed their concerns to Oxford University Press, Cambridge University Press and Taylor & Francis, and conveyed the open letter. The displeasure of 309 members from the international academic community, including the 33 authors whose works were allegedly infringed, is plain:
As authors and educators, we would like to place on record our distress at this act of the publishers, as we recognise the fact that in a country like India marked by sharp economic inequalities, it is often not possible for every student to obtain a personal copy of a book. … In that situation the next best thing would have been for multiple copies of the book to be available in the library so that students are able to access these books without any difculty. But given the constraints that libraries in India work with, they may only have a single copy of a book and in many instances, none at all. The reason we make course packs is to ensure that students have access to the most relevant portions of the book without which we would be seriously compromising their education.
The argument made by publishers for strong copyright enforcement is based on presumed losses caused to them. Given the pricing strategy followed by publishers, we do not believe that students are the primary market for these books and hence it would be disingenuous to presume that every photocopied article or book would be a lost sale.
Moreover, the academic members question the claim that academic publishing will cease without publishers’ investments:
This claim hides the fact that most academics are able to write books because they are supported by public infrastructure and money by virtue of being employed by universities or research centers. Academic writers are paid salaries and make their living from the university system, which in India is still largely government subsidized. … [In effect] the proﬁts of academic publishing houses are under-written by tax-payers’ money.
The students also submitted other letters of concern. Amartya Sen appealed to publishers’ consideration of the importance of education and pragmatically suggested this suit is not in their own long-term interests:
…. In fact, the introduction the students get through these course packs must tend to be favorable to the sale of books in the future when the existence and the quality of arguments presented in particular books become more familiar to the next generation of earning adults…
Perhaps the best argument for throwing out the case is from another plaintiff-without-consent, Raju Ramachandran. He modestly describes himself as a lawyer (he is a senior advocate with the Supreme Court of India):
I am of the clear view that photocopying of [my] essay for educational use would be ‘fair use’ and would also fall under the educational exception in our copyright law. I would also like to make my position as an author very clear that nothing can be more fulfilling for me than the fact that the student community would be reading and discussing my views. I would be deeply disappointed if students are not able to access and debate my views only because they are unable to buy the book in which my essay is printed.
The case will continue on May 8, 2013.
As Canadians focused last week on the aftermath of the Boston Marathon bombing and the RCMP arrests of two men accused of plotting to attack Via Rail, the largest sustained series of privacy breaches in Canadian history was uncovered but attracted only limited attention. Canadians have faced high profile data breaches in the past - Winners/HomeSense and the CIBC were both at the centre of serious breaches several years ago - but last week, the federal government revealed that it may represent the biggest risk to the privacy of millions of Canadians as some government departments have suffered breaches virtually every 48 hours.
The revelations came as a result of questions from NDP MP Charlie Angus,
who sought information on data, information or privacy breaches in all
government departments from 2002 to 2012. The resulting documentation
is stunning in its breadth.
My weekly technology column (Toronto Star version, homepage version) notes that virtually every major government department has sustained breaches, with
the majority occurring over the past five years (many did not retain
records dating back to 2002). In numerous instances, the Privacy
Commissioner of Canada was not advised of the breach.
Some of the most vulnerable departments are those that host the most sensitive information. For example, Citizenship and Immigration Canada suffered 161 breaches in 2012 - more than three per week - affecting hundreds of people. The department only disclosed the breaches to the Privacy Commissioner of Canada on five occasions.
Human Resources and Skills Development Canada famously suffered a massive breach last year - 588,384 individuals were affected - but less well known is that the department has had thousands of other breaches over the past few years. In 2007, a breach affected 28,651 people, yet the Privacy Commissioner of Canada was not informed and the department is unsure of whether the breach resulted in criminal activity.
Virtually no department has been immune to security breaches with nearly 100,000 individuals affected by breaches at Agriculture and Agri-Food Canada since 2008, almost 5,000 individuals hit at Fisheries Canada with no reporting to the Privacy Commissioner of Canada, and just under 200 breaches at the RCMP affecting an unknown number of people.
If a similar situation occurred involving a major Canadian bank, retailer, or telecom company, there would be an immediate outcry for tougher rules on mandatory disclosure of security breaches. Yet the federal government plays by different rules, with no liability and no legal requirements to disclose the breaches.
Successive federal privacy commissioners have urged the government to reform the badly outdated Privacy Act to at least hold government to the same privacy standard that it expects from the private sector. But those calls for reform have been repeatedly ignored.
Most recently, Privacy Commissioner of Canada Jennifer Stoddart identified twelve seemingly uncontroversial reforms, including strengthening annual reporting requirements by government departments, introducing a provision for proper security safeguards for the protection of personal information, and creating legislated security breach notification requirements. None of the recommendations have been implemented.
In fact, Canadian privacy failures dot the legislative landscape. Bill C-12, the Canadian private sector privacy bill intended to implement reforms that date back to hearings conducted in 2006 lies dormant in the House of Commons. A review of the private sector privacy law that was required by law in 2011 has seemingly been forgotten. Anti-spam legislation passed in 2010 and touted as a key part of the government's cybercrime strategy is stuck as Industry Minister Christian Paradis dithers on the applicable regulations.
No institution has greater access to the personal information of Canadians than the federal government. The public entrusts it to keep their information secure and to take all appropriate action should a security breach occur. The latest revelations indicate that the failure to live up to that trust is spread across virtually all government departments and to the political leaders that have failed to introduce much-needed legislative privacy safeguards.
As I mentioned in my March Locus column, I'm celebrating the tenth anniversary of Down and Out in the Magic Kingdom by planning a prequel volume. As part of that planning, I'm going to read aloud the entire text of that first book into the podcast, making notes on the book as I go. Here's part five.
Mastering by John Taylor Williams: email@example.com
John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."
My latest Guardian column is "Trademarks: the good, the bad and the ugly," and it looks at why trademark, at its best, does something vital -- but how trademark can be abused to steal common words from our language and turn them into a twisted kind of pseudo-property.
When called out on policing our language, trademark holders and their lawyers usually shrug their shoulders and say, "Nothing to do with us.
The law requires us to threaten you, or we lose our association, and thus our mark." This is a very perverse way of understanding trademark.
The law is there to protect the public interest, and the public interest isn't undermined by the strength or weakness of an association with a specific word or mark with a specific company. The public interest extends to preventing fraud, and trademark uses the motivation of protecting profits to incentivise firms to uphold the public interest.
I've found some materials that I think will help us to put the order [PDF] from Judge James Robart in context, the order setting a RAND rate for Microsoft to pay Motorola. From the materials, particularly this report [PDF] from a conference on patent pools and standards bodies held in Brussels in April, 2012, I think you will see that the judge has used the wrong ruler, namely patent pools, to set a rate that is not fair to Motorola for its standards patents. And as you will see, that is the very danger that the conference highlighted, that patent pools can impede innovation, by lowering the price for newcomers to a field who wish to merely implement the standard, like Microsoft, by letting them unfairly underpay those who did the research to develop the standard, as in Motorola.
I'm getting the impression that the judge is just guessing at a rate in places, and from the wrong starting point too, and if you look at the footnotes, you'll see what I mean. Whenever he has insufficient evidence, instead of saying, "Well, I guess I can't figure that out on this record," he says, "I have insufficient evidence, so I'll just set the lowest rate." Here's just one example, footnote 24: 24 Motorola contends that Microsoft products other than Windows and the Xbox use the H.264 Standard. Motorola lists at least the Windows Phone 7 and 7.5, Windows Embedded, Silverlight, the Zune, Lync, and Skype, as Microsoft products that use the H.264 Standard. (Motorola Pr. FC ¶ 535.) Motorola, however, did not provide sufficient evidence for the court to ascertain the functionality ofthese products, making it impossible for the court to determine the importance of Motorola's H.264 SEPs to these products. Indeed, the little trial evidence regarding functionality of these additional products demonstrates that Motorola's SEPs would have little value to them. (See 11/14/12 Tr. at 150 (Orchard Testimony).) Without such evidence, the court is left to conclude that the low bound of RAND is the appropriate royalty rate for all Microsoft products -- Windows, the Xbox, and all others. But Microsoft is the one asking that the court set a RAND rate, not Motorola, so it has the burden of proving what a RAND rate should be on the other products. So presenting sufficient evidence to support a decision is not, as I understand it, Motorola's burden. So why didn't the judge say, I can't set the rate on these others products because *Microsoft* didn't provide enough evidence? Or, if he insisted on setting a royalty, set it at the highest rate, or even at an average? That's where the pro-Microsoft bias shows through, to me. That's only one place where I see an appeal issue that favors Motorola, if it chooses to appeal.
I'm most of the way doing a text version for you of the order itself, but it's 207 pages, and I'm very interested in you guys quickly taking a look at the way the judge writes about the tech and also his math in figuring out the royalty. You'll find that mostly in the footnotes, which are done. I'll keep working on the grunt work of cleaning up the text version, which is still OCR-messy, while you do that part. You have the PDF, and the text is understandable at least, while I work to perfect it. So, let's each get to work.
Update 2: How great is this? Matt Rizzolo and David Long at The Essential Patent Blog have done an annotated version of the order [PDF].
I was pointed to an article on G+ asking for language when someone takes control of their own computer in a way that is designed to be done by the manufacturer, rather than using an exploit that circumvents the intention of the manufacturer. The term "jailbreaking" and "rooting" are often used, sometimes not differentiating between these very different scenarios.
I prefer to use language that expresses the issue from the point of the owner, rather than third parties including device manufacturers or copyright holders.
A device that is comes unlocked, is designed to be unlockable, or where it is designed for the owner to be able to change the locks, could simply be called non-infringing hardware.
The Copyright Board of Canada has released a decision
in which it admits to palpable error that resulted in a hugely inflated
tariff. The case involved a tariff for SODRAC for reproduction of music
works in cinematographic works for private use of for theatrical
exhibition. The Canadian Association of Film Distributors and Exporters
had proposed a tiered tariff approach of a maximum of 2 cents per copy
containing 30 minutes of music or more (less music would result in a
lower tariff). The Copyright Board mistakenly established a tariff of
three cents per copy, mistakenly treating three tiers as three cents. As
the Board now notes:
CAFDE was seeking a rate of 2 cents per DVD copy containing over
30 minutes of SODRAC music; the Board's interpretation leads to
royalties that are 15 times higher or even more.
While SODRAC argued that the Board could not correct its error, the Board concluded that it could noting that this resulted in palpable error. Moreover, since the erroneous Board decision actually resulted in higher tariffs than those even requested by SODRAC, it also concluded that procedural fairness was breached. The Board has now suspended the tariff and advised that will issue a new decision in the future.
Other key sites
Digital Copyright Canada BLOG