Atlanteknology - Technology News for Atlantic Canada

Copyright, the Constitution and Satellite Radio

A few days ago I wrote a post about the Constitution of the USA and what is says about patents and copyright.

Well, in the July 3, 2006 issue of BusinessWeek Magazine Stephen Wildstrom writes an article about XM satellite radio and it's Inno portable receiver. 

It seems that the Recording Industry Association of America does not like the player and its ability to allow people to record songs (or any other content for that matter) from satellite radio for the purpose of listening to it at a more convenient time. And, predictably, they sued XM. Some people may be asking why they did not sue Sirius Satellite Radio and the answer is that Sirius agreed to pay a higher royalty to allow songs and other content to be recorded on its portable receiver.

XM did not want to comply (and pay the extra royalty). Mr. Wildstrom's point, and its one that I agree with notwithstanding my earlier post, is that the Constitutions of the USA and Canada allows for the protection of copyright and patents "to promote the progress of science and useful arts" (the USA America has absolutely nothing to do with copyright and everything to do with royalties. Indeed, it can be said that the action stifles the progress of science and useful arts because it denies legitimate use and inhibits new technologies. After all the Supreme Court of the United States of America held many years ago that it was lawful for an individual to record TV shows on a VCR for the purpose of viewing them at a later time. The current situation is really no different then the previous situation.

It will be interesting to see how the lawsuit plays itself out (pun intended).

The Constitution and the protection of intellectual property

I read an article in the E-Commerce Times by a chap named Richard Stallman titled “Don’t let ‘Intellectual Property’ Twist Your Ethos’. One of Mr. Stallman’s points was that the constitution of the USA makes copyright and patent laws optional.

I thought this was odd, and since Mr. Stallman did not reproduce the provisions in his article, I thought I would take a peek at the constitution of the USA for the first time in ages (and indeed I ended up reading it quite thoroughly – a read which I recommend to anyone – as well as the history of the constitutional convention which created the document).

Here is what the constitution of the USA says about what we call “intellectual property”:

[The Congress has the power] [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

That is it. One and one half lines in a lengthy document. Mr. Stallman is correct in that laws regarding intellectual property (only patents and copyright) are optional in the sense that the Congress need not enact such laws but I think you also have to look behind the words. The Congress recognized that there is a link between such protections and the promotion of science and useful arts. What the drafters left to the Congress was the specific nature of the rights to be granted. Why? Because it was the role of the Congress to draft laws to protect the country, encourage economic development and the like.

The fact that it was left open to the Congress was not, in my opinion, due to some belief that patent and copy rights were optional or of no import. It was merely an acknowledgment that the Congress was in the best position to do what was best for the country in this regard.

Contrary to what Mr. Stallman says, the goal was not solely to provide a public benefit, but to grant limited exclusivity to authors and inventors. Why? Because it takes time, money and effort to create – costs which the framers of the constitution recognized might not be expended without the right to re-coup those costs. Nothing has changed since 1787. People who create deserve to have the ability to make money to re-coup the costs of their efforts. If they relinquish the right – that is a decision for the person, not for the masses who want something for nothing.

All of which brings me to the constitution of Canada. What does it say? Well, the entirety of the constitution is not an inspiring read and the provisions relating to patents and copyrights are no exception. To paraphrase (to save you the dullness of it all):

The Parliament of Canada, and not the Provinces, has the right to make laws for the peace, order and good government of Canada including laws relating to, among other things … patents of invention and discovery and copyright.

Less eloquent than the USA counterpart but the essence of it is the same. I am not sure where patent and copyright laws fit in terms of peace, order, or good government (perhaps order) but we have the laws in place. They have a purpose and, again, nothing has happened which, in my view, changes the landscape such that we now need to cast such rights by the wayside.

Can I buy your platemail armour?

Go to www.ige.com Here, you can buy (for real money)...nothing!

Or is it nothing?

No, I have not lost my mind.  I am talking about virtual property - currency, equipment, characters, etc, acquired or built in massively multi-player online computer games (MMOGs).  In addition to MMOGs there are MUDs (multi user domains - the text version of MMOGs).

Given that people have been killed over virtual property (a Chinese man was given a suspended sentence last year for killing a person who had borrowed and then sold a virtual item without permission) and a recent Chinese Court decision upholding the conviction of a man found guilty for selling stolen passwords and online equipment, the question of the status of virtual property is real and topical.

What does a player own?  They subscribe to some sort of service for a fee, download or obtain software, and enter a virtual world through some proprietors servers.  They spend often enormous amounts of time, money and energy acquiring items and honing the skills of their online characters.

Some companies take a hard line with respect to virtual property while others appear to encourage it.  For those who encourage it one must ask what their responsibilities in terms of protecting and preserving the "property" belonging tot he players.  What happens if there is a server crash and all data is lost?  While the issue is more topical in Asian countries I suspect that it will become more important as online gamers in North America (and in particular in the United States of America - the centre of capitalism) realise the value which accrues as a result of their efforts and concoct interesting ways to make money from it.  Indeed, a lawyer in the USA recently filed a lawsuit (I cannot remember the details) alleging some sort of nasty behaviour by the owner of a MMOG against him - Ah, I remember it now. The lawyer (maybe he should be a hacker?) figured out a way to manipulate the system to make himself more money in the game and the owner of the MMOG, I believe, suspended his account, or something to that effect. So he sued the business.

By the way parents - these games are incredibly addictive. I do not play them but I used to play MUD's back in my university days and I can attest to this. Add the element of money and business and you have a very dangerous combination. I can hear it now, "Mom, can I have $20 to buy some new platemail armour for my character?"

Sampling Music - An interesting perspective

This article will be of interest to a limited number of people but I thought I would make reference to it anyway as I am one of the people who is interested - having been a DJ in a former life and a music lover still.

It is a transcript of a conversation among Lawrence Ferrara, Chair of the Department of Music and Performing Arts at NYU and a specialist in copyright law; Claudia Gonson, drummer and manager for the pop group The Magnetic Fields; Hank Shocklee, legendary producer of Public Enemy; and Paul Miller, a.k.a. DJ Spooky.

Here is my favorite passage, from Claudia Gonson:

If the Magnetic Fields could start our own “free download” and you could download all our records for free than that’s fine - but I really need to know how we are going to make money. I intend, in fact, to spend a lot of my life doing sync licenses—where you put your music through for ads or films and television as a way to make money. My understanding right now is that bands have a lot of different ways of presenting music. With bands, your income from royalties is really very little of your stream of income now days.

If at first you don't succeed....

I just read an interesting patent case (Certainteed Corp. v. Canada - (2006) 147 A.C.W.S. (3d) 870). A company had invented a shingle which it claimed was superior to traditional shingles. The judge goes into great detail concerning shingle technology and it makes for an interesting read.

The patent office rejected the patent application 5 times, starting in 1991. Each time the company tried again, submitting new evidence and making new arguments.

The case finally made its way to the Federal Court of Canada and, on April 4, 2006 - some 15 years after the process was first started - the company got its patent. Talk about tenacity!

The moral of the story is that old but still true saying - if at first you don't succeed, try try again!

Copyright Fictions and Realities

I found an excellent article here which, in my view, gives a well reasoned and non-inflammatory summary of copyright, its origins and application in the so-called digital age. I have copied the penultimate paragraph:

In conclusion, intellectual property has aided the production of culture, not by empowering people and industries to create and innovate, but by maintaining status in society. By not clearly defining whether content is product or property, the status of “creative industries and technological developers is assured. The role of the media in this arrangement is to perpetuate this confusion.

Enjoy!

Permission to use copyrighted material?

I just read an interesting article from mercurynews.com.

It seems that an author asked the estate of James Joyce for permission to use various materials in a book she was writing about his daughter, in which the author hypothesises that the daughter (Lucia Joyce) was the "muse" behind the work "Finnegan's Wake". The estate turned her down so the article says.

So the author, Carol Shloss, sued the estate (it is not clear to me that she actually sued the estate or whether she is asking a court to declare that she has the right to use the materials).

It seems to me there are several issues here. One being the ability to rely on exceptions to copyright violation - fair use and all that.

The second, and more interesting in my view, is the apparent attitude of the author that the owner of copyright should not be able to arbitrarily withhold permission to use copyrighted materials. The quote from the article is:

"We think the estate of James Joyce has been particularly egregious in misusing its copyright," Olson said. "You shouldn't try to use copyright to try to take editorial control of someone's work."

This view is, in my mind, incredible. If you have intellectual property rights in something, those are your rights. You are free to give others rights or not....generally at your pleasure. Egregious? Irrelevant.

Taking technology? Be prepared to be sued here, there..and everywhere

Here is an interesting case that I read about today.

The defendants brought a motion to set aside the service of statements of claim or, in the alternative,  for  an order dismissing the action against them for want of jurisdiction or, in the further alternative, on the ground of forum non conveniens (ie. not the right place). Sadly (for them) the motion was dismissed.

All parties were residents of USA. The plaintiff alleged the defendants breached a verbal agreement and memorandum of understanding by refusing to execute assignment of rights in technology, making the plaintiff the owner of those rights. The technology had been developed by the defendants in cooperation with the plaintiff.

The plaintiff sued the defendants in tort and for breach of contract when the defendants applied for a patent for the technology in here in Canada. Making sure it was covering its bases,  the plaintiff also sued in the USA with respect to the same technology. The defendants did not accept Ontario’s jurisdiction. Hence the motion.

However, the judge disagreed, stating that there was no forum more appropriate than Ontario with respect to the issues raised in the lawsuit.

The case, for those of you interested, is SRU Biosystems Inc. v. Hobbs; [2006] O.J. No. 987.

Springboard's Patent and Legal Fund

The 2006 call for applications to the Patent & Legal Fund and the Proof of Concept Fund is now open (to researchers at universities which are members of Springboard).

Sprinboard’s Patenting and Legal Fund will provide funding, up to an amount of ten thousand Canadian Dollars ($10,000) per invention, to protect promising technologies in order to attract early stage investment in anticipation of transferring the technology to a new or established company.  Funding awards are non-renewable. The program may assume one hundred percent (100%) of the direct cost of the patent application.  Researchers from Dalhousie University, Memorial University of Newfoundland and University of New Brunswick are eligible for 75% of the funding from Springboard, with the remaining 25% to be provided by the respective university.

The submission deadline to Springboard is 5:00 PM, June 15, 2006. Individual university offices may have different deadlines - please check with the tech transfer office at the respective institution.

Venture Capital Seminar

Bionova (the biotechnology and life sciences industry organization for Nova Scotia) is thinking about hosting a Venture Capital workshop. Whether or not it goes ahead is entirely dependant on interest.

The workshop would operate like this.  Interested companies would apply to participate. Selection would be made by the consultant (Steven Davis) and would be based on the company’s stage of development and whether applicants are “VC ready”.  The consultant would then work (virtually) with the participating companies over a four week period to develop and refine the initial 15 minute pitch in advance of the workshop.  During the workshop, each company would deliver its pitch to the consultant and the other participants for feedback and presentation tips.  It is possible that participants will get the opportunity to pitch to potential investors at a later date but that is not clear at this time.

If you are interested please contact Rocky Hynes (rhymes@bionova.ns.ca). The deadline is Friday, June 9, 2006.