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Written by Keith Solomon

Apple – Famous judge spikes Apple-Google case, calls patent system “dysfunctional”

via Apple

A U.S. judge yesterday threw aside a much-anticipated trial between Apple and Google-owned Motorola Mobility over smartphone patents. The decision and a blog comment by the same judge could prove to be a watershed moment for a U.S. patent system that has spiraled out of control.

In his remarkable ruling, U.S. Circuit Judge Richard Posner stated that there was no point in holding a trial because it was apparent that neither side could show they had been harmed by the other’s patent infringement. He said he was inclined to dismiss the case with prejudice — meaning the parties can’t come back to fight over the same patents — and that he would enter a more formal opinion confirming this next week.

The order is extraordinary not only for what it said but for who wrote it. For the unfamiliar, Richard Posner is a legend in legal and academic circles and possesses a resume that makes the typical Supreme Court Justice look like a slouch. He teaches at the University of Chicago and ordinarily sits on the influential 7th Circuit Court of Appeals but, in an unusual development, was assigned to a lower court last December to hear the Google-Apple patent case.

The case is just one of many patent disputes tying the legal system in knots as large companies tangle not only in court but at the International Trade Commission in an effort to ban each others’ products from the market. Critics say the patent system, which awards 20-year monopolies, has run amok thanks to a flood of questionable patents for software, business methods, emoticons and even one for “swinging on a swing.”

In a series of earlier rulings in the Apple case, Posner didn’t mince words as he used plain language to beat up the over-reaching arguments of both sides:

[re a slide-to-unlock patent] Apple’s .. argument is that “a tap is a zero-length swipe.” That’s silly.  It’s like saying that a point is a zero-length line.
Motorola’s contention that the term has a “plain and ordinary meaning” is ridiculous; Motorola seems to have forgotten that this is a jury trial.
In his ruling to dismiss, Posner noted that a trial would “impose costs disproportionate to the harm … and would be contrary to the public interest.” Posner’s cost-benefit assessment is likely rooted in a worldview anchored in law and economics — a Chicago-school of thought that equates court decisions with maximizing efficient economic outcomes.

This week, Posner also lashed at the patent system in a blog he shares with economist Gary Becker. In a post about the declining strength of American institutions, he concluded:

The institutional structure of the United States is under stress. We might be in dangerous economic straits if the dollar were not the principal international reserve currency and the eurozone in deep fiscal trouble. We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals.

Posner’s decision to descend from the 7th Circuit to oversee the Google-Apple trial suggests he wished to step in and do something directly about the patent system. (Ordinarily, Posner would never hear a patent case as all patent appeals are sent to the DC-based Court of Appeals for the Federal Circuit; that court has maintained an ideological bias in favor of patent owners despite repeated rebuffs by the Supreme Court).

The backlash against the misuse of patents is coming not just from Posner and the Supreme Court but other federal judges as well. Judge James Robart blasted Motorola and Microsoft in Seattle last week, noting that ”The court is well aware that it is being played as a pawn in a global industry-wide business negotiation.”

It’s unclear how Apple and Google will respond to Posner’s surprise pounding of them. Both companies have so far said nothing and may be waiting for the other shoe to drop via Posner’s formal opinion expected next week. The judge wrote yesterday that he may change his mind but the overall tenor of the first opinion suggests this is unlikely. You can decide for yourself here:

Posner Order
(Image via University of Chicago)

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TorrentFreak – Megaupload Demands Return of Millions of Dollars From U.S. Govt.

via TorrentFreak

In addition to filing a general motion to dismiss the criminal case on the basis that the company was never properly served, Megaupload and defendants Kim Dotcom, Mathias Ortmann, Bram Van Der Kolk and Finn Batato are demanding the return of some, if not all, of the assets seized by the United States.

The motion, which “challenges the scope of pretrial restraint of assets”, is running in parallel with yesterday’s general motion to dismiss, just in case the former should be declined. It also gives us an interesting flavor of the nature of Megaupload’s defense should the case go to full trial.

As previously reported, the US indictment claims that Megaupload caused $500m in losses to copyright holders while generating revenue for itself in excess of $175m. In addition to $67m already seized, the U.S. Government is seeking criminal forfeiture of at least $175m, an amount challenged by Megaupload.

“This represents the total revenues generated by Megaupload during its entire corporate existence,” the motion begins.

“Thus, the premise of the Government’s forfeiture request is that Megaupload never earned a single penny that was not criminal under U.S. law — whether, say, from a non-infringing use of its service, or from use that occurred wholly outside the United States and beyond reach of U.S. law, or even from an infringing use within the United States as to which Defendants nonetheless qualify for a statutory safe harbor or lacked requisite criminal intent.”

Considering the high probability that at least some of the money generated by Megaupload was from entirely legal means (unless every single Megaupload user was engaged in criminal copyright infringement), assets should be released so that the defendants can pay to mount a defense, their legal team argues. Currently, no-one conducting Mega’s expert defense is getting paid.

The motion continues by detailing what the defense believes is the key to undermining the whole case – claims of secondary copyright infringement against Megaupload (i.e holding the company responsible for the actions of its users) can’t lead to criminal liability.

Indeed, only this week New Zealand Judge David J. Harvey made his opinion known, stating that in lacking “statutory support for its unprecedented effort to criminalize secondary copyright infringement, the Government has reached beyond the pale of the law.”

The motion adds that federal criminal liability is created by statute, and no statute imposes criminal liability for secondary copyright infringement.

“Congress did not contemplate that service providers such as these Defendants might be imprisoned based on uncodified theories of secondary liability that are still evolving in the civil context, as though those amounted to established federal crimes,” Dotcom’s lawyers write.

In addition to being held secondarily liable, there are various allegations of direct infringement being leveled at the defendants. For example, one involves Kim Dotcom allegedly uploading a single 50 Cent track, another with Finn Batato doing the same with a Louis Armstrong song.

However, Dotcom’s lawyers note that these allegations contain zero factual information from which the defendants could prepare a defense. Whose copyrights were infringed? How and when did the alleged infringements occur? The list goes on.

“The Government has attempted to make out an all-encompassing case of an alleged criminal copyright conspiracy without bothering to allege concrete specifics of the actual
infringement allegedly committed,” the lawyers write.

“It has attempted to build one of ‘the largest criminal copyright cases ever brought by the United States’ out of conclusory ipse dixit, reciting statutory verbiage and nothing more.”

In the indictment the U.S. makes much of the “rewards program” operated by Megaupload, claiming that such rewards encouraged users to upload infringing material. The defense see things somewhat differently.

“Particularly in the context of this case, where it can be stipulated that Megaupload’s
business was designed to appeal to its users and facilitate uploading and downloading of files, such allegations say nothing of consequence.

“If the Government believes that every such business model is inherently and pervasively criminal because it may enable copyright infringement along with other misuse, then it should say as much, so that everyone is on notice and this Court can take due account.

If, on the other hand, the Government believes that this business and these Defendants specially set out with intent to perpetrate copyright infringement, it is conspicuously bereft of corresponding facts.”

The motion continues by stating that Megaupload had “substantial non-infringing uses” and had protections under the DMCA since it complied with copyright holder takedown requests by removing millions of links to allegedly infringing material.

“Megaupload negotiated with numerous major rights holders, including the Recording Industry Association of America, the Motion Picture Association of America, Disney, Warner Brothers, and Universal Pictures, to grant them full access to directly remove any active link to infringing material,” Dotcom’s lawyers note.

Furthermore, even if the claims against Megaupload had merit, they would still be geographically restrained, Dotcom’s team writes.

“Megaupload was a non-U.S. company whose activities mostly occurred overseas and whose users were mostly located overseas. The laws of the United States do not apply to overseas locations and operations absent contrary prescription by Congress.”

The motion, which runs to 45 pages, is somewhat of a tour de force from a legal team co-ordinated by Ira Rothken of the Rothken Law Firm in California. Its contents could yet provide the biggest copyright-related upset the U.S. has ever seen.

Source: Megaupload Demands Return of Millions of Dollars From U.S. Govt.

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iPod Touch…Fantastic!!

I’m currently writing this post from the WordPress App on my new iPod Touch. I’m going to be doing mobile themes for one of my regular clients, so I needed a device to test with. So far, I’m really loving it…but it REALLY makes me want an iPhone so I can use it everywhere.

For those of you with mobile devices, you’ll notice that my site now has a mobile-friendly theme that shows up when you visit from one of these devices. It’s currently using the default theme from the plugin I’m using (WPTouch iPhone Theme), but I plan on changing that soon.

So yeah, iPod Touch good! 🙂

CMS-like Admin Menu Plugin – Version 2.1 Released.

Another plugin update…this time for my plugin for rearranging the admin menu to bring the Pages menu to the top. With version 2.0, on WP 2.8, you got a doubled Category link, and it didn’t support custom taxonomies. As of version 2.1, it now does.

It was an easy fix, I just needed the time to get it done. I just committed the new version to WP Extend, so if you’re using the plugin, you’ll be getting the upgrade notice shortly. You can also find it on the Plugin page if you’d rather download it manually.

CTC – Version 5.2 Released

This is a quickie update to address a couple of issues. First off, you should once again be able to use the admin plugin update feature to get new versions, as I have now moved the plugin files out of the folder I had them in.

Secondly, as of version 5.2, all PHP short tags have been eliminated from the plugin. It didn’t seem to be a major issue, but if your server had short tags turned off you couldn’t use the admin panels to set your options.

Lastly, the individual link items inside the cloud now have their own class for styling purposes. You can now target a.ctc-tag in your stylesheet to apply styling to the links themselves.

As always, you can find the new version on the CTC Page, or you can grab it from the plugin page at WP Extend.

CTC — Automatic Upgrade Issues…

There is an issue when you use the automatic update feature. It creates an erroneous folder that contains the actual plugin folder. For the time being, please refrain from using the automatic upgrade. If you have already upgraded via the automatic method and the plugin disappeared from your plugins list, just ftp to your WP install, go into the plugin directory, and move the ‘tag_cloud’ directory from the ‘configurable-tag-cloud-widget’ directory to the main plugins directory. After you do this, you can activate the plugin as normal.

Sorry for the issues…I’m trying to find a fix, and will post agian when I figure it out.

CTC – Version 5.0 Released!

I just updated my configurable tag cloud plugin to version 5.0. The big news in this version is the widget has been brought up to date with the new Widgets API released in WordPress 2.8, and you can now limit the tags displayed in the cloud by the number of posts attached to each tag. This will stop the issue of having a few tags that overpower the cloud.

I haven’t updated the CTC page yet, so for now, you’ll need to either use the WordPress plugin update feature, or visit the plugin page at WP Extend to get the new version.

CTC — Upgrade Coming Soon

With the release of WordPress 2.8, a new widget API was released into the wild. The effect of this is the widget portion of my configurable tag could plugin doesn’t work the way it should any more. I have started working on upgrading the plugin to work with the new API, and it’s looking good so far. There will also be a couple of new features in the new version. I’m not quite ready to talk about those features, but I think they will be welcome additions.

That said, version 5.0 of the plugin will be released for WordPress version 2.8+ ONLY, so if you want the new features, you will have to upgrade your WordPress install. I figured out I could make it work for all versions of WP 2.3 and beyond. I have a couple of folks beta testing the new version, and when they give me the all-clear, I’ll release it so keep an eye out here or your WordPress plugins page for the notice.