Behold the latest proof -

Patent lawyers started breathing again Wednesday, as the specter of new patent rules was chased away -- at least for a little while -- by a Virginia court.

U.S. District Judge James Cacheris granted pharmaceutical giant GlaxoSmithKline's motion for a preliminary injunction blocking the U.S. Patent and Trademark Office from implementing rules set to go into effect today.

The new rules would reduce the number of claims, which help define a patent, and the number of continuations, which are used to amend patent claims and contest those that are rejected. Claims would be limited to 25, and continuations to just three. The current rules imposed no limits.

"I won't be alone in being among the patent attorneys who are very pleased with the injunction that was granted today," said Neil Smith, a veteran IP lawyer at Sheppard, Mullin, Richter & Hampton in San Francisco. "Anyone who cares about the strength of patents and about innovation itself saw those rules as causing some real problems -- it's a good day for the patent system."

The patent office says the rule changes are meant to speed up the patent process and eliminate the enormous backlog of applications. But opponents say the changes could weaken patents by not allowing sufficient continuances to cover ever-evolving innovations. They also say the new rules would have unfairly been retroactive on pending applications.

Notice how patent attorneys engage in Orewllian Newspeak talking about the "strength of patents" and "innovation". Always have to read between the lines with them - much like politicians.

Read the whole article here.

Via Techdirt -

"Welcome to the lovely world of patent extortion, where the money from the practice is so lucrative that one of the highest paid lawyers at a top law firm would quietly license his patents to be used against his own firm's clients in exchange for a cut of the profits."

You have to read it to believe it.

Wired reports:

Disney, CBS, Microsoft, Fox, NBC, Viacom, Dailymotion, MySpace and Veoh Networks announced so-called User Generated Content Principles that appear aimed at stifling fair use. The announcement calls for the "implementation of state of the art filtering technology with the goal to eliminate infringing content on (user-generated content services), including blocking infringing uploads before they are made available to the public."

The Cartel's website can be found here.

Even if you accept current notions of copyright law, here is the biggest problem I have with this concept - It clearly anticipates that media companies will have a primary hand in defining what "fair use" is. This of couse is flat-out unacceptable. The entire concept behind "fair use" is that such "use" will be allowed even in face of express opposition by the copyright owner. Fair use is never "accommodated" as the Cartel suggests. It is instead superceded over express objections to the use of the material.

This is entirely unworkable since "fair use" is ultimately only defined by a court on a case-by-case basis after litigation has been brought forth. Even lawyers can never tell you if something is "fair use" or not. They can only make best guesses of what a court will decide (though their guesses are often disguised as conclusions based on their own biases of what they think fair use ideally ought to be).

Here are 5 different scenarios that all involve the same act of downloading a song:

1. To keep in my personal music library after being exposed to the song elsewhere.

2. To sample the artists work to determine if I might want to purchase it or other works at a later date.

3. To explore lyrics or aspects of the work for a journalistic/scholarly essay that I am working on regarding a history of the music genre.

4. To replace a defective CD that I bought in a store.

5. To replace a purchased CD that I lost or accidentally damaged on my own.

Which of these are "fair use"? The answer is - NOBODY KNOWS! (at least until you a court ruling in your particular case.) Recent court cases would strongly suggest that scenarios 1 & 2 probably won't be considered fair use, but even then, there might be specific facts in individual cases that might lead a court to rule otherwise (and such a ruling would have little use or practicality in terms of establishing precident for future cases with differing facts - even when the differences are hair-splitting). "Fair Use" can be an infinitely flexible concept that judges can use and abuse according to their personal tastes. Any lawyer who tells you that there is a bright line legal rule that prohibits any downloading of songs for personal use under all circumstances is simply smoking crack folks. The odds are certainly stacked against such defendants these days, but there is no bright line rule.

This much is certain, however: Media companies would consider all 5 scenarios to be copyright infringement with no "fair use" invovled. If they are the ones directing websites such as Youtube to remove content based on their edict, then their declaration that "fair use" ought to be "accommodated" is a hollow promise indeed.

Interesting reading here.

[Hat-tip: Supreme Court blog.]

The 8th Circuit Court Of Appeals has not only struck an important blow for free speech, but they may have also prevented the idea of "fantasy sports" from becoming a corporate monopoly.

As the court states: "[T]he information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."

Indeed. But then again the radical interpretations of 'publicity' rights have been quite strange all along.

PDF link of the decision here.

[h/t: How Appealing]

I earlier suggested that if defendant Jammie Thomas was hit for over $3-million in fines for downloading music, she would have a good shot at challenging the verdict in constitutional grounds.

Her attorneys have decided to still challenge the $222,000 verdict on the same grounds. [PDF alert. h/t: Wired.com].

Good luck to her!

Columbia Law Professor Tim Wu has a fascinating article on areas of American law that are never inforced.

He doesn't tackle the issue of copyright piracy, but his essay gives obvious food for thought on the issue and where the future might be headed.

This series explores the black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is … nothing. These are the areas where, for one reason or another, we've decided to tolerate lawbreaking and let a law duly enacted and still on the books lay fallow or near dead.

Why are there dead zones in U.S. law? The answer goes beyond the simple expense of enforcement but betrays a deeper, underlying logic. Tolerated lawbreaking is almost always a response to a political failure the inability of our political institutions to adapt to social change or reach a rational compromise that reflects the interests of the nation and all concerned parties. That's why the American statutes are full of laws that no one wants to see fully enforced or even enforced at all.

Full article link here.

Astonishing.

I'll admit that if I was on that jury, I would have voted to acquit simply as form of jury nullification over bad copyright laws (not because I would have doubted that she actually downloaded music).

With that said, I think its actually a pity that the defendant here WASN'T fined the $3.6-million instead of the $222,000 that she was given. If she HAD been hit with a $3.6-million fine for copying 24 songs, it would have set up the perfect opportunity to mount a direct constitutional challenge to the punishments contained in our draconian copyright laws.

Cruel and unusual punishment anyone? I suspect that many courts might be willing to entertain such an argument - even those who would otherwise be inclined to protect harsh copyright monopolies.

That's what Lara Santoro argues (to which I agree).

Santoro observes -

Countries such as Kenya and Uganda, not to mention South Africa, have not only the manufacturing base needed to copy and reproduce drugs for a fraction of their cost, they also have the right. So what's stopping them? "There is a history of trade pressures," Love said. "Very few countries are willing to face such pressures."

Despite death on an unimaginable scale, talk of compulsory licensing remains anathema in most of Africa, so millions of lives are left in the hands of a well-meaning yet ineffectual group of international donors, whose solution to the problem has been to purchase and distribute generic AIDS drugs made in India and Brazil. It's a noble effort, but with pitiful results. Fifteen years after the invention of antiretrovirals, only one in four Africans has access to them.

But it gets worse. For many of those who survived thanks to first-line treatments, the time has come to switch to newer, less-toxic drugs -- all of them patented, none of them even remotely available. "We're starting from zero again," said Buddhima Lokuge, U.S. manager of Doctors Without Borders' "campaign for access to essential medicines." By the time generic competition kicks in for the newer drugs, millions of people will have died unnecessarily.

Read the whole thing.

Unfortunate news that the RIAA has won its first file-sharing trial link here.

Recording Industry vs. The People is still upbeat about a possible appeal link here.